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1  N   THE  CUSTODY  OF  THE 

BOSTON     PUBLIC   LIBRARY. 


5^ELF    N° 


Aa 


4 


-.»""■  *wi^w^y> 


WE  allow  of  the  Printing  and  Publilhing  of  the 
Book  Intituled,  A  General  Abridgment  of  Law 
and  Equity,  Alphabetically  digefted  under  proper 
Titles,  &c.    By  Charles  Finer,  Efq; 


W.  Lee. 

W.  Fortefcue. 
J.  Willes. 

E.  Probyn. 

F.  Page. 
Law.  Carter. 
J.  Fortefcue  A. 
W.  Chappie. 
T.  Parker. 
M.  Wright. 
Ja.  Reynolds. 
The.  Abney. 
T.  Burnett. 


5 ->■.»♦•» 


% 


General  Abridgment 


O  F 


LAW  and  EQUITY 


Alphabetically  digefted  under  proper  TITLES 


WITH 


NOTES   and  REFERENCES 
to  the  WHOLE. 

By  CHARLES  VINER,  %; 

FavcNte   Deo. 

ALDERSHOT  /';/  Hampfhire  near  Farnham  in  Surry  : 
PRINTED  for  the  Author,  by  Agreement  with  the  Law-Patentees. 

c^'  


ADAMS 

3 
0.\ 


sy  y 


1 


TO  THE  RIGHT  HONOURABLE 

Sir    THOMAS    PARKER,   Knight, 

Lord    Chief  Baron   of  the  Court   of 
EXCHEQUER. 


My   LORD, 

Q/;/r^  /  am  prevented  addreffifig  this  Part  of  my 
'JVork  (as  I  intended)  to  your  Lordpip's  Predecef- 
for,  the  late  Lord  Chief  Baron  Probyn,  as  a  'Teftimony 
of  my  Gratitude  for  the  many  Obligations  I  was  under 
to  him  J  and  of  which  I  fiall  always  hear  a  Grateful 
Remembrance  ;  It  is  with  the  great  eft  Pleafure^  that  I 
embrace  this  Opportunity  of  returning  my  Thanks  to 
Tour  Lor  dpi p  for  the  many  Honours  and  Favours  my- 
felf  and  my  Work  have  received  likewife  from  Tour 
Lordfjip. 

JVo  Part  thereof  would  probably  have  ever  made  its 
Appearance  in  Publick^  had  it  not  been  for  thje  great 
Encouragement  Tour  Lordfl:ip  gave  me. 


Th 


)/S 


DEDICATION. 


72/ J,  my  Lord:,  ^^J"  made  me  prefume  to  addrefs 
to  Tour  Lordfljip  this  Part  of  that  IVork,  Jo  highly 
Honoured  hy  Tour  Lordpip's  Jpprohatiorij  and  fince  by 
the  Approbation  of  every  Be?ich  of  ^uftice  both  in  Eng- 
land and  Ireland^  (the  great  eft  Honour  that  can  be 
done  to  any  Author ^  and  the  beft  Recommendation  any 
JVork  of  Law  is  capable  of^  that  I  might  teftify  to  the 
IVorld  in  the  moft  Puhlick  Manner^  that  I  am^  with 
the  greateft  Veneration  and  Refpe&^ 


My  L  0  R  D, 

Tour  Lordpifs 


Moft  Obliged, 


And  Moft  Obedient  Servant^ 


Charles  Viner. 


TABLE 


O  F    T  H  E 


Several   TITLES,  with  their  Divifions  and  Subdivifions. 


fEcroptiije* 


Ma 
M.  a 
O.a 


P.  a 
P.  a  2 
P.  3  5 


League  and  Truce 

Letters  of  Marque  and  Reprifal. 

Contempts. 

See  Fugitives. 
Premunirc      See  Inf.  (E  e.  5) 
See  Recu<ant. 
At  Common  Law. 
By  Statute. 
Notes. 
Lies 

For  wliom.  Pa.; 

In  what  Cafc";  ;  or  a  Prohibition.         P.  a.  4 
Proceedings    Pleadings,    and  Judg- 
ment. P.  a.  ^ 
Forfeiture  of  what,  and  by  whom.  P.  a.  6 
Suing  in  other  Courts. 

What    fhall    be    laid   to   be    other 
Courts.  P.  a.  7 

Pardon. 

The  feveral  Kinds  thereof,  and  the  Dif- 
ference. P.  a.  8 
Neceflary  or  not,  in  what  Cafes,  and  in 

■what  grantable  of  Courfe.  P.  a.  9 

Pafs.     What  fhuU  pafs  by  a  Pardon.  (^  a 

Uf  one,  in  what  Cales  it  fhali  be  of  ano- 
ther (^  a.  2 
Of  Principal  ;  in  what  Cafes  it  pardons 
the  Acccllary.  Q.^-  5 
Of  what  Things   inclu'Tvely  fliall  be  a 

Pardon  of  others.  R.  a 

General. 

What  fliall  be  faid  to  be 

Pardon "d  tliereby.  S.  a 

Within  the  E>:ception  thereof       S.  a.  2 
Charter  ot  Pardon. 

W  hat  Thing  fhali   be  pardon'd  by  a 

Pardon  or  other  Thing.  U.  a 

Relation  U.  a.  2 

To  what  the  Words  fliall extend.        U  a.  3 
Good. 

In  Refpett  of  the 
Words  in 

Criminal  Cafes.  U.  a.  4. 

Cafes  not  Criminal.  U.  a.  5 

Time  of  the  making.  U.a.  6 

Thing  ;    or   what    the    King    may 

pardon.  U.  a  - 

Manner  of  obtaining  it 
■  and  Proceedings. 


Sugg(  ftiin 


Lr.  a.  S 


Allow'd 

In  what  Cafes.  U.  a.  9 

How.  U.a.  10 

At  what  Time.  U.a.  11 

l^pon  whatReturntotheScirefacias.U.  a  12 
Writ  of  Allowance.      NecelTary   in 
what  Cafes.  U.  a.  15 

Advantage  thereof  taken  by  whom,  when, 

and  how  U  a.  14. 

Effects  and  Confcquences  of  a  Pardon.  U.a.  1  5 
Pleadings.  U.  a.  i(J 

Ch.irtcr  of  the  King. 
Non  Obftante  ; 
The  Original  thereof  X  a 

Licences  on  Penal  Statutes  Y.  a 

Good.     In   what  Cafes  the  King  may 
di!"pcnfe.  Y.  a.  2 

Officers  of  the  King. 

What  Things  they  may  do  Ex  Officio.      Z.  a 
Seals. 
The  Antiquity  of  Seals.  A  b 

Diverfity  of  Seals  ;  and  what.  B  b 

Great  Seal 
Granted  under  the  Great  Seal,  what 

Ought  to  be.  C.  b 

May  be.  D.  b 

Exchequer  Seal. 

What  Tilings  done  u"der  the  E.xche- 

quer  Seal  iliall  be  good.  E  b 

Dutchy  Se.il.  E.  b.  2 

Privy  Seal.  F.  b 

Signet.  G.  b 

Warrant. 

By    what  Warrant    the    King  may  do 
Things.     _  F.  b 

Grants  of  the  King 
Good  or  void,  in  what  Cafes  in  general.  G.  b.2. 
In  Refpert  of  the 

M.itter  or  Manner.  G.b.  5 

Time. 

In  futuro  See  (I.  c.  2) 
Before  Office.  18//.  6.  6.  H  b 

During  jV'onage  M.  b.  4 

After  a  former  Grant.  See  (M.  b.  5) 
In  Part,  and  void  in  Part.  G.  b  4 

Pafs.     By 
General  Words  what.  (C.  c)  (D.  c)  ^E.  c) 
Words  of  Reference.  K.  b 

To  other 

Perf^Mi.  I  b.  R.c. 

Thing.  lb  Lb.  R.c. 

See  Aid  of  the  King  (£j  pi.  3. 
Former  Grants.  A 

a  B/ 


A   T  A  B  L  E  of  the  Several  1 1  V  L  E  8, 


By  I  lie  VVords 

Conftituiiinis  Corccffimus  &c.      E.  c.  2 
L\-  ccrraSi-icini.i,  Mcro  Motu  &c.  Ex.  3 
Wliat  Tilings  tlie  King  may  grant. 

Ti  erogativc-s  of  otlier  Things,  M.  b 

Dil>cnfa:'on.s  or  Forlcitures  on  Penal 
Statuics.  M.  b.  2 

Things  nor  in  Efll*.  M-  b.  5 

Motwithllrtiidir'g  a  forn-.er  Grant,  and 
in  whatCafl-sfuch  icl  Grant  lliall  be 
a  Repeal  of  the  fir(l  Grant.  M.  b.  5 

As  to  the  Dutchy  of  Lancuftcr,  Corn- 
wall &c.  M.b  6 

\N  ithont  Record  or  InroUment  M.  b. ; 

Gn:ptee  of  tlie  King. 

In  which  Calc  he  ftall  have  like  Pre- 
rr.gative  as  the  Ki:^g  himlelf.  M.b.  8 

In  \vho;"c  Isan-.e  he  r.^ay  fue,  and  how. 

M.  b.  9 

Dcceiv'd. 

Ill  w  hat  Cifes  the  King  may  be  faid  de- 
ceived, and  fo  the  Grant  void.    O.  b  P.b 
Faile  uUggeftion.  N.b 

Punifh'n-.cnt  thereof,  by  anfwering 
the  Meltie  Profits.  N.b.  2 

Falfe  Recital   in  wh.it  Cafes  ftall 
make  the  Patent  void.  Q;'o 

Recital  of  Leafcs  and  Grants. 

iNcceflary  in  wliat  Cafes.  Q.  b.  2 

Sufficient.     What,  and  by  what  fup- 

ply'd.  R-  b 

Pleadings.  R.b.2 

Rcpcal'd. 

By  or  without  Scire  facias. 

In  what  Cafes  S.  b 

Caufe.     \N  hat  good  to  repeal  a  Patent 

upon  a  Scire  facias.  T.  b 

Who  mav  *'ue  the  Scire  facias.  U.  b 

What  fliall  be  or  amount  to  a  Repeal.  X.  b 

See  (M.  b  5) 
Patentee  oufted;  How. 
Pleadings. 
Againft  Law. 

Limited  by  Reference  to  Ifords. 
Words  extend  to  what 
Uncertain.     Void  in  what  Cafes. 

See  Aid  of  the  King  (E)  pi.  3. 
Enure. 

How.  F.  c.a 

To  a  double  Intent.    See  (N.  c)         G .  c 
To  how  many  Intents.  N-  c 

See(F.c.  2)CG.  c) 
How  it  may  be  ; 

Witl;out  Grantee  ;  or  where  it  muft  be 
by  way  of  Ordinance.  H.  c 

Time. 

At  what  Time  he  may  grant.  I  c 

See  Office.  CE) 

During  Nonage.     SeeCM.  b.  4) 
In  Futuro,  and  when  it  fhall  take 
Effect.  I.e.  2 

Determined  by  Death  of  the  King  or  Pa- 
tentee. I.  c.  ; 
Immunities.  L.  c 
W  hat  Immunities  the  King  may  grant.  K.c 
Patents. 

Confideration.  JM.  c 

Expounded  how.  O  c 

Of  the  Difference  between  Grants 
of  the  King  and  a  Common 
Perfon,  as  to  theEffeft  thereof.  O.  C2 


X.b.  2 

X  b  5 

Y.b. 

Z  b 

Be 

F.c 


Allowance. 

Neceffary  to  what  Patents.  P.  c 

Peremptory  to  tlieKing;    In  wiiat 
Cafes.  Q.  Q 

Exemptions.     See  Trial  (B.  c)  s'c 

Extent  thereof  T.  c 

Liberties  \]^  ^ 

Sec  Franc  hifes. 
Extinct  by  Coming  to  the  Crowa  X.  c 

Scifure  in  what  Cales.  y  q 

Pleadings  of  Letters  Patents,  Exempriors 
&c.  Y  c  2 

JMonftrans  of  them  in  what  Cafes.       Y.  c.  •^ 
Grant  to  the  King,  ' 

What  may  be  granted  or  affign'd  to  him.  Y.c.4 
Conftrucd  or  aided  how.  Y.  c.  > 

How. 

Without  Record. 

In  what  Cales.  z   ^ 

Chattels.  /j_  J 

Sufficient  Record,  What  A.  d 

Entry, 

iiy  the  King, 

Congeable  in  what  Cafes,  C  d.  2 

See  Condition.  (N.  d) 
Upon  the  King  or  his  Patentee,  or  v.-hat 
is  to  be  dons,  B.  d  " 

Scifin  of  the  King,  ' 

la  what  Cafes  the  Kinf^  ffiall  be  faid  to 
be   leifcd  or  poiiefs'd,    and   of    what 
Things  he  may  be  put  out  of  Pofleflion.  B.d.4 
Quo  W^arranto. 
Of  what  Things  it  lies.  q  ^ 

By  what  U'ords.  q  j  , 

Proceedings  and  Pleadings  and  Judgment 
in  General.  '  '^       C,  d,  - 

As  to  ' 

Liberties  and  Fi-anchifcs.  C.d.  4 

Corporations,  ~ '  (j_  ^j   ^ 

Fifteenths,  Tenths.     See  Taxes.  I  d 

What  £,.  ^ 

Commence,  how.  £  ^j 

Taxation,  How.  p  ^ 

For  what  Goods.  .  K.  ^ 

At  what  Place.  L  d 

Paid  by  whom.  q^  (J 

In  refpect  of  other  Charge.  H.  d 

Levied  how.  j^i  j 

Subiidy.  jvj    fj 

Martial  Affairs,  Jufts  and  Tournaments.      6.  d 
Murage.  p  j 

Tronage  and  Pefage.  q  j 

Aulnage.  j^  j 

Proclamation. 

The  Force  thereof  5  d 

By  whom  made,  and  how  ple.ided.  S.d.  2 

Guardian  of  the  Realm.  \J.A 

His  Power  in  the  Abfence  of  the  Kin".     X  d 
King. 
Bound  by  what  Acts  of  Parliament.     See 

Statutes. 
What  ffiail  go  in  Succeflion,  and  not  to 

his  Executors.     See  (Q.  14)  Y.  d 

Defcent  of  Lands,  how.  Y.  d.  2 

Succefl'ors  comprehended  by  the  Name 
King  only,  in  what  Cafes.  7.  d 

Council  Privy  of  the  King.  a.  e 

Power  of  the  Council  Board    See  Coun- 
cil Board. 
Queen  Contort  of  the  King.  B.  g 

See  Aid  of  a  Common  Perfon,  (P,a)pl.i. 
Aurum  Regins.  '         Q  g 

Monopoly 


With  their  Divifions  and  Subdiviiions. 


Monopoly  D.  e 

As  to  Printins; and  Siiirs  reining  thereto.  D,  c.  2 
What  is,  and  in  w  hat  Cufcs  it  may    be 

granted.  E.  e 

Trieel,  where,  and  How.  E.e.  2 

Judgment ;  and  recovered,  What.         t.  e  5 
Intruder. 
In  what  Cafes  a  Man  fhall  be  faid  an  In- 
truder. F.  e 
Intrufion. 
Statutes  relating    to    Intrufion  on    tlie 

King.  F.e.  2 

Proceeding,';,  Pleadings,  Judgment  Sec.  F.  e.  j 
Office. 

King's  Eliate  ;  In  v.  hat  Cafes 
Devefted  without  Office.  G.  e 

Void  without  Office.  H.  e 

Limitation.  Statutes  of  Limitations  as  to  the 
Prerogative. 

Concealed  Lands  &C.  H.  c.  2 

Ecclefiaftical  Laws. 

The  Antiquity.  I.  e 

furifdidion.  N.  e 

Sentence.  O.  e 

Of  \\hat  Effect  in  our  Law.  P.e 

Commutation  Penance.  K,  e 

Prohibition.    The  Antiquity  of  their  Ju- 

rifdi;tion.  L.  e 

Adminiltration. 
The  Antiquity   of  Ectlefiaftical  Jurif- 
dietion  thereof.  M.  e 

Clergy. 

Privileges.  Q_e 

Ordinary 

His  Power.  See  Evefque.  Q.  e.  2 

Depofition. 

What   fhall  be  good  Caufc  to  depofe.  R.  e 
See  Deprivation. 
Guardian  of  the  Spiritudties. 
Who  is  of  common  Right. 
"VN'hat  Thinti;   he  may  do. 
Eccleliaftical  Courts. 


High  Commiffion. 

Convocation  ot  Clergy  ;  Power  of  Con- 
vening. 

Power  of  the  Convocation. 
Privileges  of  the  Convocation. 
Temporalties  of  the  Bifhop. 
Seized  ;  For  what  Caufes. 

What    Profit    tiie  King   fiiall  have 
tlierehy. 
Vjfitations. 

Of  what  Per.'bns. 
By  whom. 
Bifhop. 
Exemptions. 
Appeals. 
Delegates. 
Effect  of  Appeal. 
Prerogative  of  the  King  in  Matters  Ecclcfi- 
aftical. 

In  Ecclefiaftical  Courts  by  Writs  of  the 
King. 

prefCrlptiOn*     See  Prohibition  (F) 

Who  may  prcfcribe. 
Bv  V.  hat  Names. 

'Though  they  hold  only  at  Will. 
Againft  whom. 
Good. 
What  fhall  be  faid  a  good  Prefcription. 

Of  what  Thing  it  may  be. 
Uncertain,  yet  good 


S.  e 
T  c 

U.e 

X.e 
Y  e 
Z  e 

A.  f 

B.  f 

C.f 

E.  f 
D.f 

F.  f 
H.  f 

G.  f 
If 

K  f 

L.  f 


B 
D 


F 
G.  K 

H 

K.  L 

I 

M 


Again  ff  the 
Publiclc  Good. 
Law  of 
God. 
Rcalbn. 
The  Land 

And  Common  Right. 
A  Statute. 
In  refpeCt  of  the  Time. 
Made. 
How  it  may  be  made. 

Affirmatively  or  negatively.  O 

Againlf  Pref'cription.  X 

Bound,  who.  C 

Of  what  it  may  be,  or  what  a  Man  may 

have  by  Prelcription,  S 

Liberties.  R. 

In  what  Cafes  it  may  be.  U 

Failure  of  Prcfcription.     What.  W 

Dellruifion. 

What  may  deftroy  it.  T 

Pleadings.    See  (X)  See  Que  Eflate. 
As  to 

Bridges — Common  — Efiovers — Ways.      Y 
See  Bridges  Sec. 
How. 

Plea  Double  — Alleging  Seifin—Not 
faying  Time  out  of  Ivfind—  Uncer- 
tairly —  In  whom,  laid  —  Tiavcrfe 
good  S:c. — Not  Viewing  Deed.  Y 

Eiiuirv.  Z 

pitfentiitioiu  iparrcn.    patron. 

V  icarage.     See    Vicar. 
Who  might  create  a  Vicarage.  A 

Endownicii:.  C 

By  whom  B 

Intereft  of  the  Vicar  in  the  Things 
V.  hereof  he  is  endowed.  F 

Appendant.  .Sce(E) 
Patron.     Who 
Of  Common  Plight 

May  be         '  E 

Shall  be  faid  to  be.    See  (T)  E.  2 

Re-united.  H 


Enlarged. 
Dilfolved. 


H 


See  Corporation. 
Parfon. 

His  Intereft  in  the  Church  and  Church- 
yard. G 
Actions.    What  Aftions  he  may  have  for 

Trefpafs  &c.  done.  G.  2 

And  Vicar.     Inter  fe.  H.  2 

And  Patron  and  Ordinary.    , 
Power  in  time    of  tlic 
Parfon 

Jointly.  I 

^everal!y.  K 

Vacation.  L, 

Ordinary. 

His  Power  in  Time  of  Vacation.  M 

Pro.vifion.  N 

Advowfun. 

What.  _  O 

Spiritual  Promotion. 

What  fhall  be  faid  to  be.  Q_ 

Donative.  R. 

Church  with  Cure 
What  was  a  Church   with  Cure  ;  And 
who  fhall  be    fi;d  to  liavc  th;  Curam 
Animarum.  S 

Charcl.  P 

Plead- 


A   TABLE  of  the  Several   TITLES 


Pation  of  an  Advowfon. 
V\  hi)  and  liow  conddcred  ; 

V\')icrt;  one  Iras  the  Nomination,  and 

Another  the  Preleiitaiion,  T 

Incumbent. 

V\  ho  is.  U 

Pleading;  by  him,  fee  (B. d.  12-) 

l^rcfciitation* 

'Jo  wli.u  Thirigit  may  be.  A.  a 

What   will  nuke  a  Church   Prefcntative, 

which  was  not  ib  befoic.  B.  a 

VS'hat  Pertbn  may  prelcnt, 

And  who  fliall  have  the  Prefcntment, 

The  King  or  others.  C.  a 

III  whatt  afcs  he  diall  prefent  D.  a 

By  Making   Incumbent    a  Biiliop. 
See  (D.  a)  pi.  iCK.b) 
Where  a  Chattlc  vefts.  E.  a 

Who  fhall  prclent.  F.  a 

In  Rclpect  of  Eftate,  F.  a.  2 

IHlTeilec  &c.  See  (R  a)  (M.  c) 
l\lortgagor,or  Mortgagee.  F.  a.  5 

Coparccner.s,  Tenant.',  m  Common,    or  I 

lointenant.sVVho  of  Common  Right.   G.  a   ■ 
Bf  Compodtion.  j 

How  the  Cumpofition  being.  Ha 

Aflignee  ;  I.  a 

Or  others. 

Wiiere  it  is  to  be  by  Turns. 

What  Prefentment   (hall   fervc 
for  u  Turn.  K.  a 

Prcfentee.s. 

What  Perfons  maybe.  L.  a 

Laymen.  Sce(L)  pi.  d 
For  a  Collateral  Kelpei^l.  M.  a 

To  whom  it  fhall  be  made.  N.  a 

Time. 
At  what  Time  it  may  be  O.  a 

Before  .Deprivation.  P.  a 

\\herc  there   is  an   Alienation,    Dif- 

feifin  &c.See(  M.b)  R.  a 

Where  the  Church  is  full.  Q.  a 

Plenijrty. 
By  whom  be  pleaded,  and  in  what 
Cal'es  it  is  a  good  Plea.  Q^  a.  2 

Good. 

How  it  may  be.  S.  a 

Revocation. 

By  whom  it  may  be.  T.  a 

What  fliall  be  laid  to  be  a  Revocation.      U.  a 
J-ee  Prerogative  ^O.  b)  pi.  5. 
Examination 

What  Time  the  Ordinary  fhall  have  to 
examine  a  Clerk.  X.  a 

Refufal, 
Caufc  thereof     Good 

In  Rcfpeft  of  Y.  a 

Prefentor. 
Prelcntee. 
Crimes  Sec.  Z.  a  2 

Illiteracure&c.notbeingCrimes.Z.  a.  2 
Trial. 

Where,  and  How  theCaufe  of  Rc- 
fulal  ihall  be  tried  ;    And  Plead- 
ings.   Sec  Trial  (R)  Z.  a.  5 
Diflurbancc  by  the  Ordinary 

What  Aft  will  make  the  Ordinary  a  Di- 

fturber  A. b 

Punif!-:ed  ;  How.  And  Pleadint^s  &c.    A.  b.  2 
Admiffion,  Inftitution,  and  Induction 
Mudc 

Of  what  they  fhall  be.  B  b 

By  whom  It  may  or  muft  be  C  b 

-Amount.';  thereto  what.  D.  b 

Good;  And  the  E.fcA  thereof  D  b   2 


Triable  how  ;  And  Punifliment  of  rcfu- 
fing  to  grant  them.  D.  b.  - 

Refignation.  ' 

By  what  Words  it  may  be.  E.  b 

To  whom  it  may  be.  F.  b 

How  and  when ;  And  the  Efteft  thereof  F.  b  2 
Avoidance. 
Prevented  in  what  Cafes  by  Difpenfation 
of  the 

Pope.  G.  b 

King,  H.  b 

Benefit  ota  Voidance  taken  away  by  Dif- 
penlation    fubfcquent  of    the  Pope  ; 
In  what  Cafes.  I.  b 

By  the  Canon,  or  by  Statute,  when,  and 

in  what  Cafes.  And  Pleadings.  I  b 

By  what.  G.  b.  z 

By  Pluralities. 

At  what  Time.  I.  b.  ; 

What  fhall  be  faid  to  be  Pluralities. I.  b.  2 
Allowable  in  what  Cafes  ;  By 

Retainer.     How.  I.  b.  6 

Difpenfations. 

Granted  by  what  Words,  and   in 
what  Cafes  necellary.  I,  b  4. 

Qualification. 

What   is,   or  what  may  become 

good  £){  port  Facto.  I.  b.  5 

Annulled,  or  deftroved  by  what 
Act.  ■  1   b.  6 

Acceptance  of  a  Bifhoprick.  K.  b 

Who  fhall  prefent  on  fuch  Avoi- 
dance.    Scc(C.  a)(Da) 
Taking  a  fecond  Benefice.  L.  b 

Not  reading  the  Articles  £cc.  L.  b.  2 

See  Clergymen. 
Deprivation,  M.  b 

Caveats  to  prevent  Inftitution.  I\l.  b 

Entry  into  Religion.  Is.  b 

Lapfe. 

What  is  ;  and  the  Commencement.         O.  b 
By   what  Time  the  Patron  may  prefent 
before   a   Lapfe   fhall   be.      '  P.  b 

Sec  Univerfity. 
The  6  Months. 

Computed.     How.  P.  b.  2 

From  what  Time.  Q.  b 

Notice. 

In  what  Cafes  Lapfe  fhall  incur  with- 
out and  where  with  Notice.  R   b 
Refufal  &c. 

For  Collateral  Caufe,     where  De 
jure  Notice  ought  to  be.  S.  b 

Sufficient  Notice,  What  is.  T.  b 

To  the  Ordinary ; 

In  what  Cafes.  U.  b 

Prevented  by  naming  him  in  the  Writ.  X.  b 
Againft    what    Perfons    being    Patrons, 

Lapfe  fhall  incur.  Y.  b 

To  whom  it  fhall  accrue  for  a  collateral 
Refpect.  Z.  b 

Taken  away  after  it  is  incurred. 
In  what  Cafes.  A.  c 

To  the  King 

In  what  Cafes,    and    in  wh.it  Cafes 

taken  away.  B.  c 

Or  others. 

In  what  Cafes  it  fhall  be,  and  what 
may  be  done  after.  R  c.  2 

Pleadings.     In  caCc  of  Lapfe.  B.  c.  ^ 

Uilirpation. 
The  Elfca  thereof  C.  c 

At  Common  Law.  How;  And  how  rc- 

died  by  Statute  C  c.  2 

Upon  v,h.itThirg  it  may  be  D  c 

Made 


With  their  Divilions  and  Subdivifions. 


Made  ^,  .  ... 

How.        What   Aft    or   Tl.irg  v  lU 
make  it,  or  put  a  Man  out  of  Pof- 


E  c 


fcHion. 
By  what  Prrron  it  miy  be  made. 

The  King  . 

For  whom  it  fliall  be  faid  to  be 
Sec(G.  clpl.  2,  ; 
Whoiniiv  ufui-p  in  refjicft  of  Eftste 
Wlio  fhai'.  ne  faidtobc  the  Ufurper. 
Upon  whom  ir  may  be. 
The  King  or  others 
In  rel'pe.tt  ot  Ertate. 
Join  tenants  &c 
Upon' one,  where  it  fliall  be 

Common  Law. 
Defeated. 
Bv  Remitter. 
Ouare  Impedit. 
"'Of  what  it  lies. 
Who  Ihall  have  it. 

^^ee  Univerlitv. 
One   or  fevcral,  and   where  two  fliall 

What  Pcrfons  may  have  it  on  Dlfturb- 

See  Baron  and  Feme.  CO.) 
A  gain  ft  whom. 

Of  what  Thing.  ^ 

By  reafon  of  Simony.     Sec  Simony. 

Seifin.  ,      ^  r 

NccefTary.     In  what  V-  ales 
SeeCC  d)  pi.  5. 

Sufficient.  ^       t,        t  ^ 

What  is.  Qc.  R.c.  T.  c 

IhcKiih  the  Name  be  altered.     Sec 

(R.c)  pi.  :,s,  9.  lo- 


G  c 

(F.  c) 

ri.c 
ri.  c.  2 

I.c 

K,  c 
on  others  at 

L.  c 

M.c 

M.  c.  2 

N.c 
O.c 


P.c 

.  C.   2 


Q.c.  S.c 


In  whom 
For  whom. 
By  whom 
At  what  Time. 

Lies-  .    . 

At  what  Time  it  lies. 
Where  ic  fhall  be  brought. 

How.  ,       -,    ,,  1 

In  what  Cafes  the  Writ  Ihall  be 
Pnfcntare. 
AdEcclefiam  6cc. 


R.c.  pi.  n,  12. 
K.  c.  pi.  1 3  &c. 

U.c 


X.  c 
Y.c 

y.c.  2 

B  d 


In  General.   At  Common  Law,  or  by 


Z.c 

A.d 


B.  d.  2 
B.d.  5 
B.d.  4 


B.  d. 
B.d. 


Statute. 
In  what  Cafes. 
Procels  and  Proceedings. 
Pleadings. 

Abatement  of  the  Writ. 

See  Journey 'b  Accounts  (B) 
TheEffcctthereof  ;by 
Death  of  one  of  the  Parties. 
Other  Matters. 
Patron  &c.    In  what  Cafes  he  muft  be 

named.  ^-^ 

Count. 

Good  in  general. 
Plenarty. 

Sec  CO,  a.  1) 
By  the 
Bifhop. 
Incumbent. 
Double  Pleas. 
In  Bar: 
Traverfe. 
In  what  Cales 
Meccflary. 
Good. 


B.d.  8 

B.d.  9 

B.d.  10 


B.d.  n 
B.d.  12 
B.d  15 
B.  d.  14 

B.  d.  15 
B.d.  16 


Profcrt,  or  Monftrans  of  Deeds  8cc 

Ncccflary  ;  In  wh.nt  Cafes.  B.d.  17 

IlTuc  ;  upon  wh.it  to  be  taken,  and 

of  wh.it  the  Jury  muft  cmiuire.     B.  d   iS 
Judgment. 

When  ;  and  How  ;  and  of  the  Entry 

tliereof  B.d  19 

Reeovfied;  What  ;  and  who  fhall 
have  Execution,  and  the  Efteit 
thereof  ii  <1  -o- 

Dafiiagcs  and  Cods  B.  d.  21 

Error;  And     ludgnient   reverfed.         B  d.  22 
Scire  Faci.is  8cc.  in  Qua.Imp.  aud  Plead- 
ings t'.icrein.  ^-  "•  -3 
Darrein  Prclcntment. 

Who  fliall    have  it.     See   (H.  d) 

Where  the  Eilate  is  altered.  E.  d 

V\'ithout  any  Prefcntment  before.  C.  d 

After  Prclemnicnt  _     I^-  <I 

What  a  good  Preferment  to  maintain  it.  F.  d 

Of  one  where  it  fhall  be  of  orherv  G.  d 

Wliat  Perfons  fhall  have  it  in  refpeft  of 

Eftate.  H.d 

Of  what  Thing.  I- Q 

Seifin  fufficient ;  What  is.  K  d 

Proceedings,  Pleadings,  and  Judgment.  K.  d. 


Verdict.    Good. 
Pvight  of  Advowfon. 
Lies. 

Of  what  Thing. 

Ky  whom,  oragainft  whom. 
Seifm. 

Neccffary  ;  In  what  Cafes. 

Alleged. 


K.  d.  3 

Ld 

L.d.  i 

M.d 

Ki 


In  whom. 

By  whom.  N.  d.  pi.  ■; 

Sufficient.     What  fhall  be.  O  i 

Proccedingsand  Pleadings;  and. what  fhall 

abate  the  Writ.  ^-  d.  ^ 

Jure  Patronatus. 

Whatit  isinGeneral.  P- d 

Ne  Admittas.      Lies;    for  whom;  When  ; 

And  in  what  Cafes.  P-  i^-  * 

Writ  to  the  Biffiop. 
Granted. 

At  what  Time.  X;* 

By  what  Court.  *^-  °- 

Upon  what  Plea.  A.e 

In  what  Cafes.  "•  * 

To  whom   it  may  be  granted  or    a- 
warded.  ^- ^ 

Who  fliall  have  it.  ^-  ^ 

Third  Pcrfon  not  Parry.  T.  d 

The  King,  though  not  Party  to  the 
Writ,  or  though  the  llfue  be  not 
found  for  him.  I-'-  ^ 

Without  Title. 

In  what  Cafes.  X.  d 

Upon  Title  made.  \  d 

Title  fufficient  ;  What  is.  Z.  d 

Proceeding.s  Pleadings  &c.  C.  e.  2 

Return  by  the  Biiliop.  E)-  <= 

Remover. 

Who  to  be  removed.    In  what  Cafes 
by  Judgment  without  Writ.  E.c 

l^refiiniptioiu  ^     ,    ^ 

principal  ann  acccffar)).    Sce  Ac- 

cellary. 

pdttcipalanti'BaiU   SeeBiii 

il^rifage*     S^e  Prerogative  (R.)    &:c, 

b  ^r^ 


A  TTb'L  E   of  the  Several  T  11  L  E  S  &c. 


Foi'  wiut 

Ciulcs. 

Things  ;  In  whit  Aftions. 
What  I'eiibnsfh.tll  have  it, 
Sec  Ambaliadors  Sic. 
Againft  whom.  E 

What  Courts  {hA\  have  it,  and  againft  what.  F 
■     Allowed  ,  How.  G.  z 

By  ptioiity  of  a  Suit.     See  (F)pl.4.  _ 
In  foini'  and  returiiint;  to  and  from  Courts. 

,>Scc:CB)andCC)      . 
Gulled.    See  Covin. 
Chancery,  and  Other  Courts. 

In  wliat  Cafes.  G 

In  what  Aftions.  H 

Of  Officers  of  Courts,  from  Offices  and  Duties.  A 

Ot  other  Perlbns  A.  z 

Prayed. 

At  what  Time,  and  what  fhall  be  an  ad- 
mitting the  Jursfdiction  of  a  Court.  I 
Proceedings  and  Pleadings.                                K 

Of  the  leveral  Sorts  of  Privies,  and  of  what 
they  may  take  Advantage.  A 

q5rOi3iltC»     See  WiU. 
^^rOCCtlCUHO*    See  Rege  Inconfulto  &c, 

Judicial, 

How  it  ought  to  be  made. 
Diftringas. 

Upon  Tcftatum  at  Common  Law. 

Z5E.  5.  17- 
Capias  and  Exigent. 
Awarded. 

What  Proccfs  Ihall  be  awarded, 
By  whom. 
Execution. 
At  what  Time. 


By  whom.  H 

Arrclf  ;  What  good  in  Law,  I 

I  l^COClamatiOlU     See  Prerogative  (S.  d) 

l^i'o  Cop.ftfra, 

Wlicre  a  Bill  &c.  Hiall  be  fo  taken.  A 

l^rociiratioiis* 
prafcflioii. 

Der.iignmcnt. 

Caul'e  thereof  s;ood. 
At  v/hatTime  a  iMan  fliall  be  fjid  a  dead 

Perfon,  or  profefs'd. 

profit  apprenoct:. 
proljibitton* 

Antiquity  thereof 
Lies 
Of  what  Things  or  Aftions,  and  for  what 
Caufcs,  the  Judges  not  having  Jurif- 
diction. 
Defamation. 

What  Defamation. 
Legacies  and  Wills. 
See  (F)  pi  22.  &c. 
Jurifdiftion  Spiritual. 

Of  what  Thing. 
Ouftcd. 

In  what  Cafes. 

In  refpett  of  Collateral. 
Thing. 
Caufe. 
By  what  Plea. 
Extent  thereof 
Seats  in  the  Church. 
Reparations. 
Chapel  of  Eafe. 
Ornaments. 
W^here  the  Laws  Spiritual  and  Temporal 
differ. 
In  the 
Matter. 
^Manner  of  Suit. 


B 
N 


D 
L 
E 

G 

H 

I 

K 


O 


Preroi^ative  of  the  Kinc 


(M. 


«  L  E  A  G  U  E  and  T  R  U  C  E.  ^^ 

*  The  Dij- 
firetue  ie~ 

r,  t  I  a:;  is  a  Breach  Of  il  '^XWZZ  fOt  CHC  ECillm   ro  baniOi  the  Com-  «--f«  a 
X  niodicics  ot  the  other  Kciiim,  tijCCC  \SZ\\\\\  il  iU'rilCC  llCtlUCfll  ^fa'S""  a"d 

tlX'lI*  '  .  That  a 

Trikc  is  a 
C/_-fl:inon  from  \^'ar  for  a  certain  Time,  but  a  League  is  afi  ab(()lutc  Ktrikii'g  of  Pi.-ace.     4  Inli  i  Tri,  — A 
Tiuce  //  an  Agreement,  wliercby,  tho'  the  War  continues,  yet  all  HolHlities  do  for  a  V\  liilc  ce.de  ;  for 
between  War  and  Peace  there  is  no  JMedium.     It  is  but  a  bare  Sufpenfion  of  the  Acts  of  'V^'ar.     1  Aiol- 
loy  i;3.  cap.  9   S   i. 

I A  Lrarjie  may  be  hnketi  by  levyipg  of  War,  or  bv  AmbufTador  or  Herald.    4.  Lift.  1 52.  cap.  zG. 

And  fays,  that  Brian  held  Opinion  in  !  9  E.  4.  6.  b.  That  //' a  I  tie  Suhjeits  of  England  w culd  make  kfar 
itith  a  Ain^  ni  Leapiie  ivith  the  Kitig  of  Etifl^nil,  ivithcift  lis  .-/Jje/.t,  that  filch  a  \Var  is  no  Breach  of  the 
Leiigue.  And  in  the  IDUftC  Of  i^orfoltt'^  (lalV,  Hill.  14  Eli?,  the  Quenion  was,  \^'lKt!ler  the  JLorD 
Ji^trilf,  ai'd  other  vSubccts  of  the  King  of  Scots,  that  without  his  Aflent  had  wafted  and  burnt  divers 
Towns  in  England,  and  proclaimed  Ere.mies,  uere  Enemies  in  Law,  within  the  Statute  of  25  E.  5.  the 
League  being  between  the  King  and  the  Scots;  and  refolved  that  they  were  Enemies  4  Inft.  152. 
cap.  2ft. 

Pafch.  56  Eliz.  iJ'tnrV  DC  Gale  and  other  F-.-ciicl mm  impjrteH  divers  Jf.iniif^cfjires,  as  Cloth  of 
Tifliic,  Cawles,  Points  &:c.  M'  Icrcupoti  S^CinllllfCU  and  other  good  Menhayits  of  London,  exhihtied  d}- 
t crs  />ijorm/!lie>is  »p<>i the  Statute  \i)  H.  - .  i-i^-hnh  prol ihits  the  f.uxe  ;  (Jt  whom  tlje  Fmicl:n:e.r,  ccmpLxmed  at 
the  Ccm-.cil  'TMe.  And  it  was  rc.'blved  by  the  Lord  Treai'urer  Burleigh  and  the  wh.ole  Council,  That  it 
was  no  Breach  of  the  League  between  this  Kingdom  and  France  ;  tor  that  /;;  the  .-inides  of  the  Lea,e,ue 
the  Latas  o( eithef  Kingdom  are  excepted;  a'.xi  therefore  it  Tonilinlon  the  Suh-ecl  being  a  French  M.er- 
ciiant,  fhould  trade  i.ito  France,  he  mult  obferve  the  Laws  and  Cuftoms  of  France      4  Lift.  153.  1 54. 

2.    27  H.  6.  cap.  r.    28  H.  6.  cap.  i.    4  E.  4.  cap.  5.    fcCtJiSCCU   tljt 

i,  I  €li?»  cap.  13.  vccites,  Cljnt  luijcfc  bp  tiiticrsj  ^tatutcsj  fccfrtc 
it  IjiiD  been  cnactcD,  tijat  no  Subjects  of  tlje  Hinij  of  emjlauD  njoiuo 

export   or   import   any    Mcrchancii/.es   but    in  Ships   ol'  the    King's 

Sub)eas&c.  0mcc't(3c  maluH'i;  of  ia!}tcf)  'S^uUutc  otOiT  Jfomsdj 
?5nnccQ  f[i\Xiuvs  fOcmiciDCQ  aai\ncv.cts  uiitn  tnz  fyw  RUfral  <i(W,  lis 
tijiiil'.inn;  tljat  tic  Jlmic  lucre  inaoc  to  t(jc  buvt  ann  li)iTU{tiicc  of  tijcir 
Coiiutii)  anD  ji3a\)i',  IjiiDc  maDc  UU  i-Jcnal  LaiuG  aAainit  fact)  as 
Ricuin  im  out  of  tijcir  countries  ni  any  otijcr  Dclfeic-  cijan  of  tfjeic 
fcncral  countries  ann  Dominionoi ;  bp  Reafon  VJOercaf,  tiierc  tjatf) 
not  only  la'oiyu  ijveae  Difplearurc  bctuil.ct  ri)c  ji-orcirai  pnnccsi  anb 
ti)e  l^uiivo  of  tijis  EcaUn,  Init  aifa  ti)c  Q3cfc!)ant^  imt  licen  for? 
Brtetictt  i  for  Rcuittiy  tijcreof  be  it  cnartcH,  Cljat  tl)c  ?m  of  s  E.  2, 
Lap.  ^.  ann  4  f).  7.  cap*      fljaU  be  boin  etc. 

4.  l\Ot.  [i)arl.  8.  o.  5.  i^.  5.  itBljcrc  before  ac coi'^  luad  nialsc  be= 
tuicen  ti3C  Unujs  of  CnalanQ  ano  Jf  lanDcrs,  tijat  no  Wools  but  of 

.Enehmd  ihoulri  be  lold  in  Flanders,  and  tijat  "'>  Cloths  of  Ene;land 
Ihould  be  Ibid  in  Flanders,  UpOtt  paUl  Of  jfOrfCttUrC  Of  tljCm,  UJljiCi) 

SDrBinance  of  Clotljd  Ijolos  yet  m  f  lanBcrs,  ann  yet  tljcre  arc 
bi'ougijt  tOc  }©aols  of  eicotianti,  fiiraixcn  ann  Caraioma,  ann 
@)pain,  tl)C  Commons  pray  Ecuieny.  !anfiua\  'St  fijalibe  fcarcnn 
in  tije  Creafury  of  tijc  King,  ann  in  otIjcr  l^iaccs,  if  any  fuel)  ai= 
Kance  can  be  fonnn. 

5.  Ret.  I3ad.  9 1).  5.  B.  5.  13ray  tIjc  Cannnons,  tijat  luljerc 
i^cryarciit  ]i)lcnty  of  w  oois  of  gtcotiauo,  CacaUiiUa  ann  €>nam  is 
broui\ijt  into  Jflanncrs,  ann  tberc  luurk'o  uioie  cuaanjabiy  tban 
ufual,  by  uibicb  tl)c  j^ricc  of  Cnglid)  ilBooio  (s  briueicn  ;  pieafc  tlx 
l^nio:  to  niaiic  fuci)  Crcatp  ann  Eequeif  to  tbe  Disl'C  of  'i5ar;atnny, 
tMt  rije  ram  itByois  tc.  be  not  tijere  luarU'n,  or  atiicriuit'e  tliat  toe 
€ioti)5  mane  in  Cna;lann  may  be  foin  in  f  (annerS  ad  tlKV  are 
m  l^rabaiit,  DoKann,  ann  other  Countricy  anjaunt.  Untroir, 
■STljat  ijc  m\i  rpcalv  tljat  tbc  Clotiji  of  Cii^iann  inay  be  foin 
tificre* 

A  6.  2  ix 


2  Prerogative  of  the  Kingi 

f^y  ihh  Ma-       6»    2  rp»  5*    Cnp.  6*    '2llje  Breach   Of  CCUCC  nnH  Leagues   niad(i 

til!;,  Breakiiif^  ot  Tnict";  and  Safe -Conducts  by  any  of  the  King'.s  Lk-gc  People  and  Subjefts  wirhirt 
F.pglarcl,  Jrc  land  and  Wales,  01- upon  the  Main  Sea,  was  adjudged  and  determined  to  be  Hii;h  Trea- 
(im.  But  thi-  Piratic h  toncernirg  High  Trealun  is  rc|iealed  by  .Statute  ic  H.  6.  11.  But  by  the  laid  Act 
cfiH.  5.  for  tlic  better  Obfervacion  of  Truces  and  Safe -Conducts,  a  Coafer-Viftcr  fm^iici.irimj,  &  fcalvo-i 
mm  Uejis  Corductuum,  v.as  raifed  and  appointed  in  every  Port  of  the  fcea  by  Letters  Patents.  His 
Oftice  was  to  iiiruire  of  all  Dft'ences  done  againlV  the  King's  Truecs  and  Safe -Conducts  upon  tiie  Main 
Sea  out  of  the  t'ounties  and  out  of  the  Liberties  of  the  Cinque  Ports,  as  Admirals  of  CuUom  were  v.ont 
4  Inlt.  iji.  tap.  iO. 

7.  15|)  JforCC  of  tlje  S)tatUtC  27  E.  3.  Scatute-ltaple,  cap.  13. 
The  Chancellor  alone  without  any  Jultice,  has  Power  to  relieve 
Merchants  who  are  robbed  upon  the   Sea.     2 1?»,  3«  2»    j^CC  ilil  t\)C 

Jiittices* 

8.  Speedy  Remedy  given  to  Strangers  upon  the  Violation  of 
Truce  and  Safe-Condutt.     31  H.  6.  cap.  4.     14  £.  4.   cap.  4.    }©fjcr? 

it  10  fatti  t\M  Offences  againft  tljc  anntics  mm  IcaiTue^  ac.  arc  to 
tf)C  iTitat  eiantiec  of  tljc  l^iufj,  ano  tije  uiuvietral  Daniaiic  of  all  tije 
Ecaim  $c- 

S.  p.  Arg  z       9.  All  Leagues  or  Safe-Conducls  ought  to  be  ol  Kecord,  viz.  /«- 
Show.  569      }-o//W  //;  Chancery,  to  the  End  the  Subject  may  know  who  are  in  Amity 
with  the  King,  and  who  not.     4  Inft.  152. 

10.  In  all  Treaties,  the  Pcrcxr  of  the  one  Party  and  the  other  ought  te 
he  equal.     4  Inft.  152. 

11.  There  cUq  four  Kinds  of  Lcag^iics,  viz.  i.  F'oedus  Pads.  And  a 
Chrillian  Prince  may  have  this  with  an  Infidel.  2dly.  ¥(X(\i\'iCoiigrati'.!n~ 
tioiiis  /heConfolationts,  which  may  likewife  be  a\  ith  an  lnH(lel.  3dl\, 
Fosdns  Co?fn/j:itation!s  merciiimji've  Omimcrcii ;  and  tliis  may  like  wile  be 
with  an  Infidel.  4thly.  Foedus  Miitui  Atix'dii ;  but  this  cannot  be  \:  ith 
an  Infidel  or  Idolater.  And  as  concerning  theie  lour  Leagues,  the  Laws 
oi"  England  are  grounded  upon  the  Laws  of  God.     4  lull.  155. 

12.  A  League  made  betiveen  t-ivo  Kings  ivithout  naming  of  Siicccffbrs^ 
does  not  extend  to  Succeflbrs,  tho'  by  our  Law  Rex  non  intermoritur. 
4  Inft.  156.  (d)  cites  9  E.  4.  2.  a. 

0.  C.  Kcb,  J2_    One,  who  caine  '■jctth  Merchandizes  from  the  Erafils,  did  not  ■pay 

f '•"*  Th^*^  Ciijfoni  there,  but  promifed  to  touch  at  Lisbon  and  to  pay  it  there, 
tipon  the"*^  which  he  did  not  do,  but  came  here  into  England,  and  offered  to  fell  the 
AmbalTadorN  Merchandize ;  whereupon  the  Portugal  Ainbaffador  here  complained  to  thd 
Complaint  to  King's  Council,  who  for  this  and  his  retuling  ftili  to  pay  the  Cuftom, 
hrfu^mTtted  committed  him.  Upon  a  Motion  to  bail  him,  the  King's  Counfel  op- 
to^payall"^  pofed  it,  becaufc  it  would  feem  as  a  countenancing  him  ni  his  Obftinacy 
Duties,  and  againft  the  King  of  Portugal,  which  m-ght  occa/ion  a  Breach  letur.;;  the 
now  refufed,  ^.^^.^  Croivns.  But  the  Court  thought  he  ihould  be  bailed,  and  that  it' 
b^lTd''^-^'^"  they  could  prove  any  fuch  Matter  againft  him,  they  might  indid  hnn 
inggo°ne  ^'''  for  it  i  but  upon  praying  to  inlpect  the  Return  betore  it  be  filed,  he 
v,rthout  li-  was  remanded.  Sid.  143.  pi.  23.  Patch.  1$  Cur.  2,  The  King  v.  In- 
belling  in      dicalmois. 

the  Ad- 
miralty,  the  King's  Counfel  conceived  it  a  Matter  of  State,  and  the  King  wcuid  fend  iiim  int.;  Pi.r.u- 
gal  ;  and  that  the  Court  would  not  let  him  go  [bail  him]  without  fufficient  Security  to  anfwer  Infor- 
mation in  the  King'.s  Court  for  cheating  the  King,  in  Regard  the  A7«-j  of  Pcrti-.g.-.l  h:t^-ii.L    lo  jv/c/e  .i:;a 
dfj.uilk  it  on:  of  the  ^leen's  Portion.  Adjornatur.  The  King  v.  Juii;icuni  Mayes. 

14.  Tho'  there  be  no  adual  War,  yet  /f"  there  be  no  League.,  the\  ^■\^.\v 
take  up  Arms  and  fight  one  another,  for  they  are  in  St.itu  Belli,  .Arg. 
2  Show.  369.  in  Cafe  of  Ealt-India  Company  v.  Sands. 

15.  If  a  League  be  broken,  let  the  Sul  jeci's  Right  be  u  h.u  ir  will,  ir 
is  gone;  for  on  Breach  of  the  League  they  become  as  Eneinic.-;.  Arg, 
2  Shov/.  370. 

16.  The  Law  a  efts  the  fjle  Potver  of  rnsiking  Leagues  in  the  King 
aloae.     Arg.  2  Show.  369. 

17.    Id 


Prer()gati\e  of  the  King.  •:^ 


17.    In  all  Leagues  the  Almticipal  Laws  of  each  Realm  are  excepted. 
Arg.  2  Show.  369. 

For  more  of  League  and  Truce  See  i  Mollov,  cap.  7   8.  9/ 


(N.  a)     Letters  of  Marque  and  Repiizal. 


U  T  Sa  tijC  RcgiffCt,  foL  129,  t\)tn  id  a  Writ  to  the  Earl  oiFlanders  ^-■^-  Admi- 
X  to  do  Right  to  j.  and  upon  Detault  Of  Elffljt,  a  Writ  for  an  p.-*~^'-"^ 

Arrelt  heie  of  the  Goods  and  Body  of  him  who  did  the  W^ong,  by     "'"' 

taking  or  fpoiling  of  the  Goods  of  the  Englilh.     jf»ii5.  1 14*  15/ 
2*  I  €.  U  Kat  ifllt*  C0Cmll.  6*    Re.x   Ealli\is  iuis  Nou   Caftri 

fuper  T.  Saluc.  f  C.    l^ecaUft  tljC  ^BUUlJCflrCCi  Of  t\)Z  fatH  Dili  IjallC  XZ'' 

ttmis  great  Damngc  m  Jf lanricrss,  niio  uccaufc  Ijc  uiouiD  Od  ludice, 

\)Z  COlUUlitnD0  tljCm  quod  bona  &  mercimonia  Flanders  de  ceteris  in 
Porta  Villas  vcllriE  predicla-   inventa  arreltari  ficiatis    ita   quod,   tIjC 

'Burixeffcjs  fliall  ijanc  t!jc  tijirn  pnrt  of  tljc  fain  ^mm  for  tijcir  Da- 

liiniJC,  anO  tijC  OtljCr  tmO  l^artS  tljei?  fijall  llCCp  donee  aliud  a  Nobis 
receperitis  in  Mandat. 

3*  28  (£.  i»    HOt^  fi5at.  ^.   i3»    Bernardus  Civis  Baion.  depric-  Ifany  Pc-- 

dat.  de  Bonis  ati  Daicitt.  7000!,  lit  portuixal  iialuut  licmc.  per  ?"",^"'^^° 
"SQ.  cc  ISritanta  Lieutenant  De  saiiuitainc  91100  ipfc  *£>cnt5  u  Ecraio  tSed    ■ 
^i)ortiui:nl,  (i  eortnii  liona  ulnciimitic  infra  Diilricr.  noUrmn  contlsc^  any  'w:.ys' 
rit  fccuntiuni  Lcrtcni  99ercatoriani  niaucarc  rciiucre  (t  appropiuiiT  damaged  i:i 
polTit  qitourquc  eiticm  Ecftitutio  facta  fucrit  -,  luijici)  l,mm  of  t'"""''""  ■ 
^arciuc  tljc  Huig  confiruicD-  thcTcm- ' 

Tories  or 
Places  of  any  King  or  Potentate,  to  whom  Letters  of  Rcnueft  are  tranfmitted,  and  no  5atisfa£tion  fhall 
be  made  to  the  Perfon  injured,  tlicre  is  po  Compuifum  to  refort  to  the  ordinary  Proleciuion,  but  Letters 
of  Reprifal  {hall  be  ilVucd.  V^m  v.here  Misfortunes  happen  to  Perfons  or  their  Goods,  rclidin'^  in  a  to- 
rei^rn  Counrry  in  Time  of  VS'ar,  IleprilJls  arc  not  to  be  granted  ;  in  this  Cafe  they  niuft  be  contented  to 
/it  down  under  the  I-ofs,  for  they  are  at  their  Liberty  to  rclin^iuifii  the  Place  on  the  Approach  of  the 
Enemy,  when  they  fcrclce  tlic  Ccnntry  is  liibjcct  to  Spoil  and  Devaluation  ;  and  if  they  continue  tJicv 
iiiull:  partake  of  the  Common  Calamity.     Gen.  Treat,  of  Trade  213.  214. 

.4*    17  €.   u  E0t»  jrin,  95cmb»3»  De  Bonis  &  Mercimoniis  Ci- 
vium  Burd.  avrcltandis  ob  tranlgrelhones  Regi  facias  &c. 
■       5*   2£  C*  I.  EOt  JfUt.  S^Cmli.  3*  De  Bonis  Mercatorum  de  Reg- 
no &z  poteltate  Regis  Francis  in  Flibcrn.  in\  ent.  arrelhind.  &  \  endend. 

ftr  CaiifeoftljeilDartjc. 

6.   29  eJ.  u  EOt»  ^l\\>  C^Cmln  i2»  Arreft  of  Goods  Of  Q3erCljaniy  See  pi  to. 
CC  [?rO^CnCC,  for  having  llay 'dm  London  ultra  40  Dies  contra  Li- 
bertates  &c. 

7*  3  3  ^»  3*  Hot.  jFllU  99cmb»  S,  De  Bonis  mercatorum  <^:c.  ar- 
reltandis  ^.'c. 

S.  14  e.  2»  llb*lc!atU  9i»  "^OniC  ships  of  Calais  arrcfted  here 
for  Robbery  done  to  the  Engliih,  anB  OehbCtCO  UpOil  tlje  LCttCr  Of 

tljc  l^ino;  of  f  ranee  to  Ijaijc  it  rcfpitcti ,  ann  upoii  petition  to  t\)z 
lAino;  b^'  tljc  Cngliflj  99ercljant0,  it  is  anliucixD,  €liat  tlje  Letters 
fijallbcfecn,  ano  tljc  ^nfiuer  of  tljc  l>inii;  totljcm;  anti  if  tljc  £:imc 
of  Rcfpitc  IK  pafs'D,  tljcn  let  tljc  Cljancellor  Do  to  tljc  Ci^crcijautp 
tijat  wijiclj  Ecafon  ann  Lalu  uiilU 

9.  Eot.  12at.  27  e.  I.  Ci5cmb.  5.  .Ittencc  to  ]•).  of  ©pain  ta 
eonie  into  Cmjlann  toitlj  a9ercl)anoi?c0  uc.  j^oic»utiS  nuon  oc= 
rafionc  ctnustiam  arreltc,  nuoo  uocatur  ic  Mar.iuo,  qitoo  luiucr 
fieri  ccticcavmu?  pro  ijoimnibu.^  Duwtu?  uoftn  Cuiiutanic  otca^ 
fioufui;. 

JO.    2.7 


^  Prerogative  of  the  King. 


10.  27  e.  ?  cap.  i7»  ^tat  2,  \^]:o))iWa  alicap^  t!jat  ifourlieiye 

\^tO\  (C,  Merchants  or  other,  ht  iiidumii^td  by  any  Ltuds  ot  ihim^e 
Latitl-^,  OrtfjCir  ^Ub)Cft0,  and  li)C  fillO  LorC0,  ^duiy  required,)  .uiii  of 
Rii'ht  to  our  laid  Subjects,  lUC  iljilll  Ijil^C  tiJC  tfllU  Of  i'liiUqUe  nuU  Of 

tiitunii;  tfjcui  agtiin,  as  Ijatlj  been  iiCcD  m  emico'  pnU,  luitijuut  jriaitQ 

01  Deceit  ,  mru  iti^ebate  arilc  tCtlUCClt  113  anO  OtIjCC  1OUD0  $C.  r!ie 

People  aim  ^^eccijants  oiiuch  i.ords  ihaii  not  be  pafeutip  uibctiea, 

*  fcerl  li       but  fljali  ha\e  *  40  Days  alter  Proclamation,  Of  mutC,  UJli^CCD  bC,  to 

dcpait  the  Land,  ajs  appcatg  bv  tijc  ©tatutc  uiorc  latfCClP. 
Tetters  of       1 1.  4  H  5.  cap.  7.  ^f  tIjc  ^ubjecT^  of  auctljci  auiii;  ^jo  contrary 
^'M''^      totljc  Cenor  of  t!)C  ■SCrucc  mane  to  anv  ^-^ubjccr  ot  ii;nrclauD,  cue 

v.eic.q.-,>./-    Keeper  of  the  Privy  Seal   [fljallj    make^o   the   Party   tiMe\ed   Let- 

ed  Icvir  be  eve  '    ,-    „  /i  j  u      D   •  C       1     •  j  n       '      "        i     ■  i'     i. 

r^  A  ^^^  ters  ot  Rcquelt  under  the  Privy  Seal  in  a  due  rorm;  and  li  alter 
lueh  Rcqucll  niade,  the  Party  required  do  not  make  *  v.  ithin  a  con- 
venient lime    due  Reilitution  and  Satisfaction   to  the    Party  griev- 

S-^'"^  ed,  then  the  Chancellor  Ihall  i^rant  Letters  of  Marque  tO  lilUl  Ut  ii 

'h?ihe  Ki>'^  cue  f  onn,   anQ  if  aiip  be  fo  ijtteucti  by  tDofe of  @)CotfauQ ,  tijc  J©ac= 

otEvcrUvc\  acns  of  tijc  (Salt  aim  U2)cft  i^arcljcs  fljatl  ija\3e  i9ouicr  to  wuU  htt- 

hy  r,yi,.eot  fj-f jj  ff  j^cfiUCft  to  Ijliu  toljo  DOC0  tIjc  UBroniT,  or  to  tOc  iiBarrirn0  of 

*'7ivc7''L  tijc  ^arcljc0,  or  Conrctuator  of  t!jc  ^rucc  of  ^cotlanti,  if  Ijc  can 

was\hc  UlCllOOlt;  or  OtIjCriUtfC   to  make  Proclamation   in   open  Places   upon 

Kingv^Pre-  the  Marches,  tijat  tlje  l©rong=tiocr  fljali  wxdXKZ  Ecffuution  to  tOe 
rogativc  in  ^^^j^tp  litic^jcri  i  aiiti  if  tbcp  50  not  no  it  in  a  con\ienient  Cinic,  t!jg 
min.m'dby'  P^ittp  gricHcD  fijall  Ija^jc  letters  of  ^avciue  in  Hue  if'ocm  jc, 

thein,  but  .    _  . 

rcnwiticJ  at  Common  Law.    Gen.  Treatife  of  Trade  &c.  212  ■ And  tins  Siatute  does  in  no  Refpcdt 

relhain  the  King's  Prerogative  and  Authority  which  he  had  at  the  Common  Law,  in  judging  tiic  Con- 
veniency  and  Time  when  to  be  executed.     Molloy  30.  cap.  2.  S.  9. 

'Origis  12.  Hot.  pari.  2»  Jx  5.  I  Part.  1^.34.  Icttcrd  of  raarntic 
(lanvoics)  i-i;^-.jiift  fljc  iJ^crcljants  of*  Jcanc  confirnicn,  anu  ijoui  tljcpri>c3 
iKf     brousijt  m  fljail  be  orncreo. 

Cotton's  Eecords  541.  5^1.  N''.  54. 

Prvnne's  13,  JJ^Ot.    Patl.  3.    l)-S*  I  Patt.   JI5.  27.    ClU    Impolition  put   up- 

cott  Rcc.  on  Cloths  bp  tl)C  Citp  Of  iSaion;  anti  for  tijis  prays  EcmcDi'  bu 
^o'\!-^The  Kcpn^al  berc'to  tlje  Double  upon  tljeirs,  [to  be]  taken  berc,  if  tljcp 
Ani^Ter  .vas,  50  not tcfonu  (t.  15i\t  It  10  iiot  citaftcO.  ■ox'^t  accormnelp  3  i^).  5* 
Tnatthe     2,  pact  of  tljc  laft  pctitioit. 

Officers  of 

Bayon  fhall  be  driven  to  flicw  the  Caufes,  whereupon  Rcdrefi  fhall  be  made. 

14*  a  ci3crcljattt  of  Cnglaim  fljall  not  Ija'oc  anp  tlBrit  orEcpn?aI 

for  Debt   due   to   him   by    Merchant   StranLi;er   upon   Contract   made 

beyond  Sea,  if  tljC  C^crcbattt  SttaniTcr  comc0  into  enslann,  ac 
1)10  COO50.    Jf.  i!5. 1  i-i.  b.  'Srainrn  qucrc. 
Espired.        15.  10  H.  6.  cap.  3.  it  iua0  complaiutD  tIjat  tlic  (5?oo50  Oc5i1jcr0 
of  tl)C  Subjects  of  CnijlanO  inerc  taUcn  'w  tijc  l-\ina-  oi'  Deninarh 
an5 1)10  liro:c0,  bcmn,-  in  amiti)  of  tbc  l^iniT,  luijcreof  ti)cp  i).iue  not 


t)a\JC  pOUiCrtO  make  tO  tljC  pattP  iTHCliCll,    Letters  of  Reque.t  WIX' 

Dcr  tlje  priop=^cal,  mitljout  ani)  otijcr  j:^urlu.t  to  D;  mane  t^  anp 

for  Rertitution  tO  bC  l)aO  Of  tbe  ©"COOSi  fsj  taliCU  auU  to  be  tanCn  ;  And 
if  Reilitution  be  not  made  bP  lUtlj  LCttClS,  tlie  Kin^',  ilD  tt't  ^3ji)ICe 
Oftji0  Council,  llwll   provide  tO  tiji  piirtt>  lU'iCtlCU   IjiS   CovcnablS 

Remedy  accotiiiniif  a0  tlje  Caff  retiuircti). 

Expired.  i6.  20  IL  6    cap.  3.  %  t^JUO  Of  luprinl!  i:i  ^^'aIes. 

17.  In 


Prerogative  of  the  King.  5 

17.  Ill  the  Profecution  of  Letters  ot"  Marque  and  Reprifal,  there  miifi  S.  P.  And 
U    1/?,  T\\^Oath  of  the  Party  injured,  or  other  firffiaait  Proof  toachin^^^^F'^^^^'^^. 
the  pretended  Injury,  and  ol  the  certain  Lois  and  JDaniage  thereby  that  Coun- 
fulhiined.  idly.AProoj  of  the  due  Profecution  for  the  obtaining  of  iSatisfaBion  try  againft 
7«  a  legal  W'ay.    ■^dly.  A  Delaying  or  Denial  of  Jnflice.  i^thly.  A  Complaint  \vliom  the 
to  his  o-ivn  Prince  or  State,     sthly.  Requijition  of  Jiiflice  iy  htm  or  them,  ?^™';?f^ 
made  to  the  Supreme  Head  or  State^  ischtre  Jnfiice  in  the  ordinary  Courfe  ^^^^^^  re-air 
itas  denied.  6thly.  Per/ffency  iVill  in  the  Denial  of  juillcc.  All  which  be-  tlic  Damage 
ing  done,  Letters  of  Reprisal  under  iuch  Cautions^  Reitrictions  and  out  ofhi?  or 
Limitations  as  are  conlbnant  to  Law,  and  as  the  Ipecial  Cafe  may  re-  '^¥"'  ^^'^^^ 
quire,  may  iffue  not  only  by  the  Jus  Gentium  &  Civile,  but  by  the  mit°ed°th'j 
Ancient   and   Municipal   Laws   of  the   Kingdom.     Molloy  2S'.  cap.  Injuries,  or 
2.    S.  6.  if that  proves 

deficient,  it 
ought  to  fall  as  a  Common  Debt  on  his  Country.     2  Gen.  Treat,  of  Com.  210.  cap.  10. 

18.  Reprizals  granted  by  the  Laws  of  England  are  of  two  Sorts,  Ordi-  2  Gen. 
nary  and  Extraordinary.  ThcOrd/nary  are  either  within  the  Realm  or  with-  i-''^^'' 
cut,  and  arc  always  granted  where  any  Englilh  Merchants  or  their  S£c.^s  P  * 
Goods  are  fpoiled  or  taken  from  them  in  Parts  beyond  the  Sea  by  Mer- 
chant Strangers,  and  cannot  upon  Suitor  the  King's  demanding  J  uliice 

for  him,  obtain  the  lame  ;  he  Ihall  have,  upon  TeiHmony  of  fucli  Pro- 
fecution, a  Writ  out  of  the  Chancery  to  arreft  the  Merchant  Strangers 
of  that  Nation,  [or]  their  Goods  here  in  England  i  the  which  is  grant- 
able  to  the  Subject  opprefs'd,  of  Common  Right,  by  the  Chancellor  or 
Keeper  of  England,  who  always  in  fuch  Cale  hath  the  Approbation  of 
the  King  or  Council,  or  both,  for  his  ib  doing.  The  other,  which  is 
for  Satisfaction  out  of  the  Realm,  is  always  under  the  Great  Seal. 
Molloy  28.-  cap.  2.  S.  7. 

19.  The  Extraordinary  are  by  Letters  of  Marque  for  Reparation  at  5.^="- 
Sea,  or  any  Place  out  of  the  Realm,  grantable  by  the  Secretaries  Trade  ^t  r 
of  State,  with  thelilce  Approbation  of  the  King  or  Council,  or  both  ;  scc.  S.  P. 
but  they  are  only  during  the  King's  Pleafure,    and  to  weaken   the 
Enemy  during  the  Time  of  \\"ar,  and  may  at  any  Time  be  revoked. 
Molloy  31.  cap.  2,  S.  10. 

20.  A.  had  Letters  of  Reprizal  granted  to  him  by  the  King  for  a  *  Prynne's 
great  Sum  of  Money,  and  therein  was  a  Claiife,  'That  no  'Treaty  of  Peace  Cott.  Rcc. 
jhoiild  prejudice  them.     The  King  by  feveral  Treaties  of  Peace  with  the  Abr  K''.d<?. 
Dutch,  had  exprefsly  articled.  That  they  lliould  not  be  prejudiced  by  \'^^„  qI^^ 
thefe  Letters  Patents.     Lord  Chancellor  refufed  to  iai  the  Point  be  ley  ofBrid'^- 
argued,  and  faid  that  nothing  could  be  laid  for  it,  and  that  the  Cafe  water  pray- 
WiiS  very  proper  in  Chancery  for  the  repealingthefe  Letters  Patents  j  for  ^''■^^  that  he 
tho'  the  Bar  was  not  fo  well  appriz'd  of  it,  tl:e  Chancery  had  Admiral  Letters  of 
Jurildiction  by  the  Statute  31  H.  6.  N'^.  06.  or  68.  which  was  never  Marque  and 
printed.     And  in  Proof  that  a  Treaty  of  Peace  may  revoke  and  amortize  Privv  Staloi' 
Letters  of  Reprizal,  his  Lordlliipfaid  that  the  fame  may  be  done  by  aTriice,  ='"  ^^''ench- 
cr  by  Letters  of  Saje-Condittt  i  and  as  to  this  lall  Point  cited  *  1 1  H.  4.  ha';"in<^no 
Rot.  66.  and  a  Judgment  of  the  like  Nature  given  in  the  Parliament  ,Safe-(2on- 
of  France,  and  tiie  like  in  the  Parliament  of  England  f  2  H.  5.    N".  duilofthe 
34.  And  lor  Authority  that  a  Truce  had  like  Eiieit  upon  Letter  of  Re-  ^'"§.'  ^°^ 
prizal,  he  cited  the  Roll  of  Parliament  io_H.  6.  N°.  34.  where  the  ^^"XT^r- 
Danes,  after  a  Truce  made  with  them,  had  leiz.ed  Englilh  Ships  by  Co-  tainhisShips 
lour  ot  Letters  of  Reprizal,  there  being  no  Provihon  made  againll:  and  other 
them  in  the  Truce,    and  the  Parliament  there  petitioned  the  King  for  ^oo'^s  taker 
Letters  of  Marque  againlt  the  Danes.     "\  ern.  54.    Palch.  16S2.    The  p^^^^!^  in 
King  V.  Carew.  Time  of 

Truce.  The 
Anfwer  was,  That  upon  his  Suit  to  the  Kin°;,  he  fhall  have  fuch  Letters  rcr,tiinitory  as  are  needful ;  and 
if  the  Frencli  refufe  to  do  him  Rigiir,  the  King  will  then  fhcw  bis  Right. 

I  Pivnne'.s  C'xJtt.  Kcc.  Abr.    541.   N"^.  ^4.  Drue  Barentine  and  others  of  Ldndon  pray,  Tliat  the  Let- 
ters of  Mart  or  Reprizal  grLWted  by  ihn  KingagaiiiO  tlic  Goods  of  the  Mcr^-lnnts  ofjeanc  may  be  con- 

-'  termed- 


6  Prerogative  of  the  King. 

(inncd.     Anfttcr,  The  which  the  King  granteth,  and  thereby  provideth  for  the  fafe  Keeping  and  well 
Ordering  of  the  laid  Goods. 

21.  Some  Engliflimen  having  fitted  out  a  Privateer  got  a  Commi'ffiorf 

by  Letter  of  jMcvrqac  from  the  Duke  of  Sai-oj,  and  too.k  a  French  Sh.ip  in 

which  were  feverai  ^urks  and   Tripolins.     It  was  fentenced  in   the 

Admiralty,  that  the  Capture  was  not  good  in  refpect  of  fuch  Commif- 

lion,  and  alio  becaufe  the  Tripolins  being  in   Peace   with  England, 

their  Goods  were  not  to  be  (eiled  by  Englifh  Ships  or  Men.    2  Vern. 

592.  Mich.  1707.  Walton  v.  Hanbury. 

Canh.  ;q9.       22.  By  the  Admiralty  Law,  the  Property  of  a  Ship  taken  without  Let- 

Hill.S  W.  5.  fcrs  of  Miirqne  vejh  in  the  King  upon  the  tailing  ■■,  and  this  upon  the  "High 

B.K.  SC     g^^^-    Revived  per  tot.  Cur.    12  Mod.  135.  Trin.  9  W.  3.  B.  R.  in 

Cafe  of  the  King  v.  Brown. 


See  (P.  a.)  (O.  a)        CoilUmptS. 

Tenure  by  i,  TBcjuintiau  iipuU  Lanccffou  6  e.  r*  Jii  tlje  €cd)equcr»  g,  qui 
SeTf.'t  1^  I'cquitucpca  Kcgc  fmtlj,  tijat  Donnnus  Ecc  rntionc  Eegie 
bythcst'a-  fipitiitiS  (J  curonc  luc  Ijabct  pnWlcn;e  quoD  Nuiinsm  rcfftiolua 

tute  of  12      DC  aliqUO  qui  fit  5c  Regno  ^miiiC  allCUI  fiomagium  li\  e  fidelitatem 

Car.  2.  cap.   alicui  lixcere  debeat  vel  aliquis  hujufmoiii   Homagium,   vel  Fidel,   ab 

^^-  ^  '         aliquo  recipere  debeat  nifi  fafta  mentionc  dc  Fidel.     Domino  Regi  de- 

bita  cidcm  Domino  Regi  Fidelit.  obfervand.  CpifCOpUSCcan  ija^J  OOiie 

Contrarium  $ c.  :jn  Contcinptum  (jc.   saun  tljc  iLMftap  put  to  an- 
riuec;  aim  icfufeU  -,  auti  upon  tW  tuai:^  conDcmnca  ft* 
■z.  €t  ibiocm  Comes  Cornub,  coi5iplain0  of  tijc  'Bifljap  of  (£,i-cm 

foe  excommunicating  ot  the  Men  of  the  Vill  of  COjC  tor  taking  his 
Duty  due  for  the  Palfage  over  the  River  Of  CfljC  Of  tljC  13airenser0, 

tDljicD  uc  ijajs  ijan  C^inie  out  of  a^iiin  $c. 

3.  Eot.parU  17  €*  3*  JI5»  26.  Eicoam  IpciroiUatc  of  Lontson 
C^ercljant,  ijcing a Liegcntau of  ouc  Eina,  anrs  borii  nt  €ui\laiio, 
fueo  lolju  UBaloen  C^apor  of  tlje  g'tapie  of  Cajei^  aun  otijcr  ^ee- 

CljantjS  of  ttje  staple,  antl  cauled  tfjCm  to  be  arretted  in  Flanders  in 

the  Court  of  the  Duke  of  Burgundy  held  in  Bruges,  tor  certain  Injuries 

r's.^K^y^  fuppofed  by  him  to  be  done  within  the  jurifdifton  of  the  Kingof  Eng- 

*  Fol.  177.  land  at  Calais  i  and  after  the  *  Defendants  appealed  to  the  Parliament  of 

Bis.       Paris,  tuljcrc  tfjcp  tucit Difmifsn  in)  Sentence  juisicial,  liecaufe  tljc 

^-'^"^^'^  S)Uit£i  were  gvountict!  upon  cpatterij  fuppofcn  to  be  none  \\\  |5!aces 

uiitljin  tljc  JucigiiJictton  of  tlje  i^ino;  of  c;^nn:!una,  ano  tbc  I3articsi 

Pauttiftd  ano  Dcfenoants  were  @)Ub}ecty  to  t!)e  RniclAmn;  ofeno:' 

lanO,  and  after  the  fame  Plaintiff  fues  them  again  in  a  Kiireit^n  Court ; 

aim  tljereftrc  upon  all  tW  ^attce  fljciun,  it  ^  enacted  tljat^a  \vrit  of 

Proclamation  fhall  iifue,  commanding  him  to  furceafe  his  fiid  Actions, 
and  that  if  he  hereafter  fues  the  laid  Deiendants  out  of  the  Realm  of 
England,  for  any  Matter  determinable  under  the  Obedience  of  tlie 
Kingof  England,  or  where  he  has  Jurifdiction,  t!)Cn  he  Ihall  be  put 
out  of  the  King's  Protection,  and  fliall  forfeit  ail  his  Lands  and  'i"e- 
nements,  Goods  and  Chattels,  and  that  no  Pardon  Ihall  be  available  to 
him. 

4.  The  Refiijtng  to  he  examined  before  a  Committee  of  Council  is  a  great 
Contempt.     12  Rep.  94.  The  Countefs  of  Shrewsbury's  Cafe. 
*  Sec  India-      j..  As  to  this  Head  of  Contempts,  fo  lar  as  it  con'cefrns  this  Title  of 
(cfuD^^       Prerogative,  Mr.  Serjeant  Hawkins  di\  ides  it  into  four  Parts,     i.  Con- 
And  ice        tempts  '""  againji  his  Palace  or  Courts  of  Jujhce.  sdl}-.  Againlt  his  f  Prero- 
gative. 


Prerogative  of  the  Kina-.  "i 


^J^Ct..XVW    V,i     ..xxv.    xviiic. 


gat'n'c.     adlv.    Againft  his  \  Perfoit  or  Go-vsTiiment.     ^tlily.  Contempts  '"^n-iking,  in_ 

iisainft  ||/v/7/r/.-.     Hawk.  PI,  C.  56.  cap.  21.  '''\^    ,„, 

-  '  •  .  .  ,  _  ^  Hawk.  PJ. 

C.  59.  cap.  22.  divides  diLs  into  three  Pans,  v'v,.  I.  llcfiillnjr  to  afd:!  ;''.o  King  foi' the  Publick  Good, 
idly.  PicFcning  the  Inteveft  of  a  Foreign  Prince  to  tiiat  oj  our  ov/n.  ;diy.  Dilbbej ing  the  King's 
lawful  Commands  or  Prohibitions. 

rjzlbid.  rto.  cap.  2;.  All  Contempts  againft  the  King's  Perlon  or  Government  are  very  highly  Crimi- 
nal, and  punifliable  with  Fine  and  Inipriionment,  and  fometimcs  with  the  Pillory,  by  iht  Dilcrcticn 
of  the  Judges,  upon  ("onfide ration  of  all  the  Circumltanccs  of  the  Cafe  ;  but  inafmuch  as  it  is  generally 
obvious  to Com.mon  Scnfc,  in  what  Gates,  and  to  vliat  Degree  a  Man  i?  guilty  of  tiiis  Ofcnce,  and  ic 
ivould  be  endless  to  enumerate  all  the  Particulars,  tl-.e  Serjeant  fays  he  fliall  content  himfelf  wich  glanc- 
ing at  fome  of  the  moll  general  Heads;  which  the  Reader  may  lee  there. 

II  The  Serje;mt  divides  this  into  two  K  inds,  viz.  i .  Denyhif  hh  Title.  2dly.  Refujing  to  take  tl'e  Oaths 
retjiiireA  hy  Lrsx  for  the  Suffort  c.f  lis  Goierrtnevt.  Haw k.  PI.  C.  6 1 .  cap.  24.  In  w  hich  faid  fc vcral  Chapi 
ters  the  Reader  may  fee  the  faid  fe  vcral  Matters  more  fully  treated  of  and  explained. 


(F.  a)     *  Prefn'jji'tre  at  the  Common  La-zo.  *  Some  hold  m 

Opinion  that 

nTT  24-  CJ>?-  'B.K.  Eon  i3»  Cije  mmg unfit  ijic  4  Htcrad '.';); J/'J;^ 

JTl*  fuag  rJlUClfl^  CSCriCI?  fUIJ)  diir.orantibus  apud  Komain  qui  munire,  ie- 

qtianiplurima  fcccrunt  ilno*  in  Decountioncm  Coroiic  Ecijic  ptceci-  ca»fe:tdoth 

piendi  quod  \ilis  Jiceris  luis  immediate  teltinarcnt  in   Angiiani,  tj  pl'C=^'""'3'  J">'"- 

tentcnt  fc  coritin Concttio  Eetris  rcfponfur. d^u nuc c.c  parte  Ecijis  1'^^'^^J^' 
ottjtccrcntin:  $c»   9n5  Eoijer  ii)olnic,  tor  not  tmrnms  ncccrninu  ta  uw,  Qrone 
ti)C  ComniantJ,  comuuttitiir  93anfdjaL  nno  niter  t^  tije'S[;oiyLTof/«.5,ofthe 

jLCnDOn,  $  quod  omnia  bona  quam  .Sp.iitULiIia  tarn  Temporalia  in  ma-  ^."igl.vLaws 

nu,s  Resis  capiantur  &c.  |9o(!ca  paruonatur.    (It  fccm^  tw  U)n0  a  cvo^  „ 
52!rcnuiuuc,  for  Ije  IjaB  not  anp  Lauus,)  f.>.ftR,-ng„ 

fi!>-!fil!!rio»y 
and  againft  the  Ufurpcrs  upon  them,  as  by  divcrfe  Afts  of  Parliament  appears.     B/tt  in  7'ruih  it  Is  fo  cal- 
led fi  om  a  'V\  ord  in  the  Writ ;  for  the  Words  of  the  W'rit  be,  Praemunire  facias  pra;fatum  A.  11  &:c.  quod 
tunc  fit  Coram  nobis  Sec.  v:hcve  P:-e»!rt!::-re  is  itjcd  fm- Fv^mcrere,  and  16  do  diverfe  Interpreters  of  the 

Civil  and  Can6n  Law  ufe  it;  for  they  arc  Pntmv.nid  tteix  are  Prxmoiiiti.     Co.  Litt.  129.  b , 

5.  P.  3lnft  120. 

2. 29  €,  3*  15. E»  Eot.  19-  Cije  I'^tdjop  Of  Ocrcfarn  imicttH  in  n  a.  hfuenn 

li^rCUiUnrCC  lor  excommunicating  all,  qui  in  Irolcis,  Parcis,  Chaceis  &  ^^e  Spiritual 
W  arcnnis  luis  apud  Malvern  &   alibi  in  Dioccli  ilia  fuga\erunt  tj  fcra^i  ]""* l"'' /  «• 

tic  l^ofos  f«i6  ac  leporc-j,  CuntciUo^  u  pbafianos'  u  J©avcu.  fiud  ihatlts'irs;- 
ftpcrunt,  jxcntraiitcr  per  totani  Dioccfim  fuam  fulnunnijit  contra  ^"^'i  f«>-  ^e^^- 

~      ■  -"  -     ■* ^    .-^..^1^..  .-..  nr < ^...^ —    ...  ....-.,    _         lar  Judges 

•ne 
:hcm 

»v->  ...........—    -,   ~.  ..,    ~~~^  -"-  --    .-J  .— »  -^^....j  -v-^...^   ».,.    »y^  .....^.  j  »^ceed 

1-^ing,  nor  after  Jntsgmcnt  at  tljc  Comnton  lau)*  againif 

Gjerks  for 
Oftences  againft  the  Peace  ;  and  th.-it  the  ExPivftion  of  the  Cleriyy  frow  the  Secular  Jnrifc^iBion  is  not  founded 
liponthe  Law  of  God:  The  Promoter  and  Abettors  of  the  Suit  incur  a  Premnnire,  and  fo  do  the  Judges  of 
the  Spiritual  Court  who  retain  the  Caule  ;  by  all  the  Judges  of  Lngiand.     Jenk.  198.  pi.   10.  cites 
-    H.  S. 


■\.  Eot>parL2o,  e.  3.  B.  41*  4^*  Cljc  ComiKOH;]!  praptljatif^ewho 

nnP  brmg  the  Bull  or  Letter  ot  the  Pope,  touching  the  Bulincfs  of^^"!;^'  ^'''' 
Alien  Bilhops,  Abbots  &c.  tljat  \%  HC  Otlt  Of  tfe  lauU     ailfiUCt,  lot  If  v~' 

tt  forbiE,  tljat  noncimng  Letters  of  aticns  from  Pucr  tije  ^ea  into  E>:^ur,dm 
ttjc  Realm,  If  Ije  noes  not  fljcui  tlieui  to  tijc  CIi.incel!or  or  tlje  lK)ar=  i^c  Time  of 
Ben  cf  tijc  pcrtsi,  upon  pain  of  5°°  I.  Jforfeuuve  to  tijc  t^ing.      fhcRellT'^ 

,ind  the  Kinc  ivculd  haie  had! ini  driTiun  and  hariced  ;  but  the  Cliancelloi- and  Treafurer  fell  upon  their 
knees  for  him  befin-e  the  King,  by  which  he  forejured  the  Realm  only.  And  ib  fee  the  Punifhraimt 
thereof  before  any  Siatute  of  Preniunirc  ;  quod  notabene.     Br.  Premunirej  pi.  lo.  cites  50  All'  ly. 

4.  At  the  Common  Laiv  before  the  Statute  5  E/iz.  cap.  i.    2t  --xas  no 
T'lony  ;o  kill  a  Man  attainted  of  Prcviitnire  ;  for  he  nas  out  ot'the  King's 

Pro- 


B  Preroeative  of  the  Kina 


j^CtLXVW      V,J.        ..l.V,      XVli.^. 


as, p.  Hawk.    Protcttion,  und  every  Man  might  do  with  him  as  with  an  Enemy  of 
I'IC.55       the  King.     Jenk.  199.  pi.  17.  cites  24  H.  8. 

cap  19  S  ijrt  D       J 

S.  P.  Co. 

Litt  I ;  1 .  b.  ____ ■ — . ■.    ■ 


(P.  a.  2)    Premunirc  by  Statute. 

I.     A   Ttachment  upon  a  Prohibition  was  brought  bv  the  King  and  the 

j^^  Incumbent,  for  that  the  King  had  prcjentcd  the  Incmnbcnt  to  a 

Benefice,  and  the  other  Dejendant  hrcught  Bulls  fyom  Rovie  in  Dijlnrbance 

thereof,  contra  formam  Statuti  &c.  And  the  Defendant  confefs'd  it;  by 

Avhich  the  Court  azvarded  that  the  Defenda?it  IhuU  go  to  perpetual  Prifon, 

and  that  the  Plaintiff  recover  his  Damages,  as  he  has  counted  ;  and  the 

Court  would  not  tax  the  Damages  in  this  Cafe.     And  fo  it  feems  that 

this  A^ion  was  Iroiight  by  the  Incumbent  qui  tarn  pro  Domino  Rege 

quam  pro  feipfo  fequitur.     Br.  Prsmunire,  pi.  7.  cites  21  E.  3.  40. 

TheUfuvpa-       2.  27  A".  i-Stat.  i.cap.  i.  Whereas  divers  People  are  dra-wn  out  of  the  Realm  to 

rfif  °^  '''r    ^'^fi'^'^^  things,  the  Cognizance  whereof  lelongeth  to  the  King's  Court,  and  the 

Rome' \  °ei-e    Judgjnents  given  in  the  King's  Court  are  impeached  in  another  Court,  in  Preju- 

the  Caufc  of  dice  and  Dijherifon  of  the  King,  his  Croivn  and  People,  and  to  the  Deflr  action 

making  this   of  the  Common  La-iv  of  this  Realm,  it  is  affented  and  accorded  by  the  King,  the 

and  all  other  ^.,^^^  j\^^^  ^^j^  Commons,  that  whofoeverjball  draw  any  out  of  the  Realm  in 

Pixmunire     ^^'^"^  '''■^hereof  the  Cognizance  belongeth  to  the  King's  Court,  or  in  Matters 

Ai-f.  Mod.     where  Judgment  hath  been  given  m  the  King's  Cuurt,     And  whoever  pall 

60. Be-  file  in  any  *  other  Court,  to  defeat  or  impeach  the  Judgments  given  in  the 

foi-e  the  King's  Court,  Jball  be  fummoncd  to  appear  before  the  King  and  his  f  Coun- 
tWs' situte  ^'^3  ''*"  ''^  ^'^  Chancery  &c.  to  anfwer  fuch  tJon tempt  within  two  Months  i 
there  were  and  if  they  pall  not  %  appear  in  Perfon  at  the  Day,  to  be  at  the  La-w,  they 
three  great  p^all  be  put  |j  oiit  of  the  King's  Proteffion,  with  their  ^  Procurators,  Attor- 
Mifchiejs.  I- flies ^  Executors,  Notaries  and Maintamers,  and  their  **  Lands,  Goods  and 
kI^o's  Sub-  (Chattels  forfeited  to  the  King,  and  their  ff  Bodies  be  imprifoned  and  ranfom- 
jefts^have  ed  at  the  Kings  Will  i  and  if  they  cannot  be  found,  they  pall  be  outlawed. 
been  drawn 

cul  of  the  Realm  to  anfiver  Things  ivhereof  the  Conii/ance  belonged  to  the  King's  Court.  2.  Of  Things  where- 
of Judgments  have  been  given  in  the  King's  Courts.  9.  That  after  Jiidsments  given  in  the  King's  Courts  of 
Common  Law,  of  Matters  determinable  by  the  Common  Law,  Suits  were  commenced  in  other  Courts  within 
this  Realm,  to  defeat  or  impeach  thoCe  Judgments.  And  thefe  tliree  Mifchiefs  had  three  unfurferable 
Eft'efts.  1.  The  Prejudice  and  Difherilbn  of  the  King  and  of  his  Crown.  2.  The  Diflierifon  of  all 
liis  Subefts.  And  3.  The  Undoing  and  Deftruftion  of  the  Common  Law  of  this  Realm.  All  which 
appears  in  the  Preamble  of  this  Atl.     5  Inft.  1 20. 

*  They  are  called  [other  Courts)  either  becaufe  they  proceed  by  the  Rules  of  other  Laws,  as  by  the  Canon  or 
Civil  Law  iscc.  or  by  other  Trials  than  the  Common  Law  doth  warrant ;  for  the  Trial  warranted  by 
the  Law  of  Ergland,  for  Matters  of  Faft,  is  by  Verdict  of  twelve  Men  before  the  Judges  of  the  Com- 
n;on  Law,  of  Matcers  pertaining  to  the  Common  Law,  and  not  upon  Examination  of  WitnelTes  in  any 
Court  of  Equity  ;  fo  as  Jlia  Curia  is  either  that  which  is  governed  per  Aliam  Legem,  or  which  draweth 
tlie  Party  Ad  aliud  Examen  :  For  if  the  Freehold  and  Inheritances,  Goods  and  Chattels,  Debt  and  Du- 
ties wherein  the  King  or  SubjeCt  hath  Right  or  Property  by  Common  Law,  fhould  be  judged  per  Aliam 
Legem,  or  be  drav<n  Ad  aliud  Examen,thc  three  Mifchiets  atoreflud,  cxprefs'd  in  the  Preamble  and  in 
this  At'r,  fhould  follow,  via.  Diflierifon  of  the  King  and  his  Crown,  the  Diflierifon  of  all  his  People, 
and  the  Undoing  and  Dcftruclrion  of  the  Common  Law  at  all  Times  ufcd:  By  which  Words  of  the  Act 
it  appeareth,  that  all  thefe  Mifchiefs  were  againft  the  ancient  Common  Laws  at  all  Times  uled. 
5  Lift.  120. 

■\  Here  Council  cannot  be  taken,  as  moft  commonly  it  is,  for  his  Judges  of  his  Courts  of  Juftlce,  who 
are  {kiA  to  be  of  his  Council  for  Proceedings  in  Courfe  of  Juftice,  becaufe  the  Courts  of  Juftice  are 
hereafter  is  this  Adt  named;  neither  doth  it  intend  the  King's  Privy  Council,  but  the  King  and  the 
Lords  of  Parliament  in  P.irli.'ment,  which  is  a  Court  of  Juftice.      5  Inft.  125. 

:j:  Premunire  againfi  an  Jabot  who  v;as  a  Lord  of  Parliament;  and  therefore  he  prayed  to  be  by  Attor- 
ney, and  could  nor,  becaufe  the  Statute  is  contrary  ;  but  by  fpecial  Writ  out  of  Chancery  lie  may.    Br. 

Attorney,  pi.  4.^.  cites  i^  H.  7.  9.  So  of  the   Pr,!yii:g  to  be  received,  this  may  be  by  Special  Writ 

out  of  the  Cha"cery.     Ibid. 

II  By  theic  Words  the  Perfons  attainted  in  a  VS'rit  cf  Premunire  are  difabkd  to  have  any  JBion  or 
Remedy  by  the  King's  Law,  or  the  King's  Writs ;  for  the  Lav/  and  the  King's  Writs  are  the  Things 
whereby  a  Man  is  protcftedand  aided,  fo  m  he,  that  is  out  of  the  King's  Proteftion,  is  our  of  the  Pro- 

tevftion 


Prerogative  of  the  King. 


tC(f>ion  and  Aid  of  the  Law.     ;  InO.  i  z6.- S  P.  And  no  one,  knowing  liim  Guilty,  can  with  Safcry 

give  liim  Aid,  Comfort  and  Relief     Hawk.  PL  C.  55.  cap.  rg.  S,  4-. 

^  Noic,  by  this  Adt  the  Pioiurers,  Jttomies,  Exeaitcrs,  Kctaries  and  Afaintainers  fhall  have  the  fame 
Puniftincnt  that  the  Principal  fliall  have.     ;  Inft.  125. 

*♦  See  (P.  a.  6) Tiii.<.  is  a  new  Kind  of  Fcifeiunc  given  by  this  Aft,  and  is  penal,  and  cannot 

by  Eouitv  extend  fnrlher  than  the  Kecord.s;  and  therefore  thi>  Adt  e>;tcndeth  not  to  the  Forfeiture  of 
Fairs  Nfarket.s,  Rent-charges  Kent-leck,  Warreni,  AniuULics,  or  any  oiher  Hcrcdiianient  tiiat  is  not 
within  the  Word  [Lands.]     ;  In(t.  126. 

■f-j-  The  Greatnefs  of  the  Punifhment  Ihews  the  Greatnefs  of  the  Offence.     ;  Inlf  1 16. 

Provided,  that  if  they  come  in  before  they  he  Outlawed,  and  yield  them- 
fehes  to  Prtfon  to  be  jitjh/ied  by  the  Law,  and  fiibmtt  to  the  judgment  of 
the  Court,  they  fimll  be  received, 

3.  If  a  Man  leafes  his  Vicarage  for  Life  rendering  Rent,  and  fues  in  the 
Eccicfiafiical  Cc:>.rt  for  the  Rent,  Premunire  lies  ;  by  which  he  tendered 
orher  Iliue  i  for  now  the  Rent  relerved  is  a  Lay  Thing.  Br.  Premu- 
nire, pi.  5-  cites  44  E.  3.  36.  ■  ♦  Ti   r 

4.  16  R.  2.  cjp.  5.  Enacts  that  *  if  any  prirchafe  or  profcciite,  or  caitfe  to  vs'ords    - 
he  pnrchafed  or  profccutcd  in  the  f  Court  of  Rome  or  elfewhere,  \  any  'thing  tend  to  all' 
which  touches  the  King,  againfl  him,,  his  Crown  and  his  Regality,  or  his  Pn-fons  of 
Realm,  they,  ihcir  \\  Notaries,  Procurators,  Afaintainers,  Jleiters',  Fautors  wliat Quality 
and  Counfellors,  fiall  be  put  out  of  the  King's  Proteffion  &c.  H^^^'^f^ 

1 26. 

I  Thefe  Words  extend  to  all  Ccurti  of  what  Juriidifticn  focver,  and  whether  holdcn  by  Right  or 
Wrong.  ;  Inft.  126. ^It  is  intended  in  the  Bijhop's  Conn  ;  and  therefore  if  a  M.'n  be  Excommuni- 
cated tor  a  T/'/w,?- w/;/(-fc  Af/ow;/  to  the  Common  Luiv,  PremUnire  lies.  Br.  Premunire,  pJ.  1  2  cites  5  E. 
4,  6. It  has  been  faid  that  Suits  hi  the  Jdmiralty  or  Eakji/rjhml Cohrts  within  tiie  Realm  are  with- 
in this  Statute  by  Force  of  thefe  Words  {Or  djc'^here)  if  tiiey  concer-i  Matters,  the  Conuf.mce  where- 
of belongs  to  the  Common  Law  ;_  As  where  a  Biilinp  deprives  an  Incumbent  of  a  Donative,  or  exxommu- 
nicates  a  Man  tor  Hunting;  in  his  Parks  &c    or  where  Commiflioners  of  Sewers  imprifim  *  M.an  for  nor 

releafing'a  Judgment  at  Law.     Hav.k.  PI.  C.  51.  cap.  19.    S.  iS. -But  it  fecms  that  a  .Sui:  in  thofe 

Courts  for  a  Matter  nvhich  appears  net  by    the  Libel  it  lelf,  but  only  by  the  Defendant's  Plea,  or  other 
Matter  fiihftcjuent,  to  he  of  Ten  f  oral  Com/fan.  e,  {as   where    a  Plaintiff ///ii^//  fcr^'ithes,  and  the  D--fend;int 
pleads  that  they  were  fever'd  from  the  nine  Parts,    by  which  they  became  a  Lay  Fee)  is  not  within  the 
Statute,  becaufe  it  appears  not  thai  either  the  Plaintiff  or  the  Jud?e  knew  that  they  were  fevered      Hawk 
PI.  C.  51.  cap.  19.  S.  19. See  (P.  a.-)- 

4:  Theie  Words  extend  to  All  Things  whatfoever,  and  are  as  general  as  can  be.     5  Inft.  i  z6. 

H  This  Aft  crfey/^i  not  only  to  Procurers,  Abettors,  Waintainers,  Counfellors  &c.  which  are  Icnown 
Words  in  Law,  but  to  Favourers  (Fautores)  which  V\  ord  was  largely  e.vctended  in  the  Time  of  H  S 
whereby  it  is  to  be  oblerved  how  dangerous  it  is  to  bring  new  Words  into  an  Acl  of  Parliament  efpe- 
cially  into  'uch  as  be  fo  penn'd  ;  for  there  it  appears  that  Clift,  being  a  Parfoi  of  a  Churcii,  granted  to 
the  Cardinal  an  Annuity  fo  long  as  he  thould  be  Legate,  Ut  decentius  &  fublimius  fe  <^creret  in  Autho- 
ricate  fua  Legantina,  which  the  Cardinal  had  by  Bull,  and  paid  to  him  10  Marks  in  Name  of  Scifin  ■ 
and  he  was  adjudged  a  Fautor.     5  Init.  ii6.  cites  Mich.  21  H.  3.  Cliti's  Cali. 

5.  The  refnfing  to  eleli  or  confecrate  the  Perfbn  nominated  by  the  Kin^ 
to  a  Bifioprick  is  made  a  Premunire  by  25  H.  8,  cap.  28.  Hawk.  Pi. 
C.  52.  cap.  19.  S.  22. 

6.  The  exercilmg  the  Jurifdiftion  of  a  Suffragan  without  the  Ap- 
pointment of  the  Bifhop  of  the  Diocefe,  is  made  Premunire  by  26  H. 
8.  cap.  14.    Hawk.  PI.  C.  52.  cap.  19.  S.  2r. 

7.  5  Eliz.  cap.  I.  Enacts  that  if  a^iy  SubjetJ  of  this  Realm,  after  the  i^  Till  this  S:-d. 
of  April  I s6i.  pall  by  Writing,  Cyphering,  Printing,  Preaching  or  Teach- ™^^^'"y  °^^^ 
tng.  Deed  or  Atf,  advifedly  and  wittingly  hold,  or  (land  with  to  extol,  fet  "'/l^a'p^^ 
forth,  maintain  or  defend  the  Authority,  Jurifditiiun  or  Power  claiiued  or  fon  attainted 
iifurpcd  by  the  Bijhop  or  See  of  Rome  within  this  Realm,  or  wittingly  attri-  of  Premu- 


..     .-^  ..  -  —  *.  -._..  Cafes 

Tear  after  f uch  Offence,  and  convicied  or  attainted  at  any  Tiiiie  after,   /ball  >; 

incur  a  Premunire.  IVrCo'.cCli. 

J.  2Bu;(l. 


?.99- 


12  Rep.  5S.   the  Cafe  of  Premunire. The  Statutes  2-  E.  ^.  i.   if)  R.  2.  5.  g^r   of  Pi-cmu'ire  are 

yet  in  Fcrce,  and  all  fuch  Proceedings  by  Colour  of  Ecclefiaftical  Law,  before  any  Ecclcflaftical  Jud'-'cs 

C  ,,':,   . 


I  o  Prerogative  of  tlie  King. 


V.  bo  wcvc  in  Dangci-  of  Prcmunirc  before  this  Aft  of  i  Fliz-  are  now  in  Cafe  of  Premiinire  after  the 
faid  Acf,  b--  i:  befi)rc  ConimiQioncrs  by  Force  of  High  C'ommiirion,  or  before  Bifhops  or  other  Eccle- 
(iaflical  Judjjes;  for  the  iaid  Afts  of  Premunire  arc  not  repealed  by  this  Act.  Keiblved.  12  Rep.  57. 
Oafe  of  rrcniunire. 

8.  The  5  Eliz.  cap.  i.  ProLibits  Books  to  be  publifhed  or  printed,  or 
uttered  w  ithin  the  Kingdom,  which  maiiit(^::i  the  Siipreimci'  of  the  Fijps 
uithin  the  King's  Dominions.  The  Approvers  of  liKh  Books  are 
within  the  faid  Statute,  and  the  Danger  of  it,  viz.  Premunire.  By 
all  the  Judges  of  England.  Jenk.  235.  pi.  12.  cites  iiEViz.  Dyer 
2S2. 

9.  A.  was  indicted  upon  the  Statute  of  i  Eliz,.  cap.  i.  for  aiding  B. 
km"di't!!g  hiiii,  to  be  a  p-iiicipal  Maintamcr  oj  the  Authority  of  the  See  of  Rome ^ 
(the  Oriender  in  luch  Caie  is  liable  by  the  laid  Statuce  to  the  Forfei- 
ture of  Premunire.  There  are  other  Oricnces  mentioned  in  the  faid 
Statute,  with  other  Penalties^)  this  Orfence  in  the  faid  Statute  has  the 
Words,  {Upon  Purpofe  and  to  the  Intent  to  e^Htol.  the  Power  of  that  See  i)  thefe 
Words  were  omitted  in  the  laid  Indittmcnt^  for  which  Cauie  the  faid  fn- 
diflment  was  judged  infuilicient  by  all  the  Judges  of  England  ;  for 
thele  Words  make  the  O.ience  as  to  the  Forfeiture  of  Premunire.  jenk, 
2^3.  pi.  27.  cites  20  Eliz.  D.  363. 

10.  The  contributing  to  the  Relief  of  a  Popijh  Seminary  is  made  a 
Premunire  by  27  Eliz.  2.  Par  6.  Hawk.  Pi.  C.  52.  cap.  19.  S.  26. 

11.  16  Car.  I.  cap.  21.  Enacts,  that  tf  any  Perfon  Jhall  put  i?i  Execution 
any  Letters  Patents^  Proclamation  krc.  'whereby  the  Importation  of  G impo-iv- 
der.,  Saltpetre^  Brimfione^  or  other  Max  en  als  for  the  making  of  Ganpmider^ 

1  Vent.  I- 1 -pall  be  any  ways  prohibited  or  ref-rained.;,  hepall  incur  a  Praemunire. 
5;  ^  ^l-  ,         12.  Green  and  others  were  indicted  for  refu/in?  the  Oath  of  Allenance 
Kino-  V         contained  m  the  Act  3  Jac.  cap.  4.  and  being  convicted,  Judgment  ot 
Green  &al.  Premunire  was  given  againlt  rhem   according  to   the  Directions  of 

the  faid  Statute.     Raym.   212.    Mich.  23  Car.  2.    B.  R.     Green's 

Cafe. 


(P.  a.  3)    Premunire.    Isotes.    kvAjor  njohom  it  lies. 

S  P  Ha  k  I-  "OR-craunire  is  but  a  Contempt ;  and  a  Pardon  of  all  Contempts  par- 
Pi.  C. -88.        Xf   dons  it.     12  Rep.  92.  Pafch.  10  Jac.  in  Lord  Vaux's  Caie. 

cap.  97.  S.id. 

By  the  Sta-  2.  The  King  lliall  have  Premunire,  ■xndithQ  Party  grievedhy  thtSnh  of 
tute  27  E.  3.  j.}^g  Provilionmay  haveAtlion.  Per  Littleton.  Quaere  what  Action  he  Ihail 
It  appears  \^^-^^  •  it  feems  Aftion  upon  theCafe  ;  but  none  can  have  Premunire  but 
munire  Iks  the  King,  as  it  feems.    Quaere.     Br.  Premunire,  pi.  13.  cites  7  E.  4.  2. 

IL  Pai-ty  ts  for  the  King,  and  they  both  may  join  in  one  Writ.     3  Inft.  1 25 Br.  Action  Popular, 

pi.  9.  cites  S.  C. 

3.  The  Bipop  of  Durham  has  Jura  Regalia  there,  and  therefore  may 
hold  Plea  of  Premunire  ;  quere,  for  it  is  gi\en  by  Statuce,  and  there 
was  no  fuch  Suit  at  Common  Law.  Br.  Premunire,  pi.  15.  cites  14  H. 
4.  14.  and  9  E.  4.  2. 

Serjeant  4.  A  Man  attainted  in  a  Premunire  is  difubled  to  bring  any  Ac'fion  ; 

Hawkins       £qj.  j^g  jg  gxtra  Legem  politus,  and  is  accounted  in  Law  Civiluer  mor- 
beenquef-      ^""8.      Co.  Lltt.  1 30.  a. 
tioned,  whe- 
ther a  Man  attainted  of  Premunire  has  a  Right  te  Surety  of  ih?  F>:ic.',  or  nor.     Hawk,  PI.  C.  iz6.  cap, 
60.  S.  3. 

f.  Upon 


Prerogative  of  the  King.  1 1 


5.  Upon  an  Indidment  ot'  Premunirc,  a  Peer  of  the  Ivculin  flial 
le  tried  by  hts  Peers.     12  Rep.  92.  Lord  Vaux's  Cafe. 


(P.  a.  4)      Premunirc.     /;;   r^zhnt   Cqfes    it  Ik'Sy    or   a 

Frohibitiofi. 

I.  QOME  hold  that  a  Benefice  donative  by  the  Piuron  only  is  a  Lvy  And  in  this 

^J  T'/'/z/f,  and  the  Bijhopjhall  not  vi/it,  and  thereiore  Iha'U  not  de-  ^•''"'^  «2s 
pn  .  e  i  and  then  if  he  .■.•eddies  in  ;t,  he  is  m  the  Cafe  of  Prtemunire      Br  t-^f^'^"' 
Prcmuiure,  pi.  21.  cites  8  AlF.  29.  "  |S,^|;°j,, 

6.  and  was  compell'd  to  obtain  a  Pardon,  mafmuch  as  he  had  deprived  the  Dean  of  Wells,  which  was 
a  Donative  by  Letters  Patcnii  of  the  King,  by  Ad:  of  Parliament  therefore  made.  But  8  e!  -..  above  is 
not  adjudged.     Ibid. *  S.  C.  cited  j  InJl.  122.  ■'    ' 

2.  Prohibition  lies  always  where  Premunire  does  not  lie  ;  as  of  Tithes  p^m  where 

cf  great  Trees  ^  ox  jor  Tithes  of  the  feventh  P  art  Prohibition  lies,  and  not  "'■'"'/■''' ■''''r 

Premunire  i  for  the  Nature  oj  theAtiinn  belongs  to  the  Spiritu.il  Court^  Ti'n'e:*""  "^  ^ 

\>\!it  not  the  Catifeva.x.^\.^¥oxm.     Br.  Premunire,  pi.  16.  cites  24  H.  8.     which  never 

r>  r.  •     ,  •      ■         r  c  belonged  to 

the  Spiritual  Court,  Premunire  lies  tbefeof ;  as  of  Btht  againft  Exe<rafo:-s  upon  a  Si»:p!e  Conh-aB;  or  for 
Breach  of  Faith  upon  a  Promife  to  pay  10  1.  by  fuch  a  Day.  Br.  Premunire,  pi.  16.  citei  2i  H.  S.  and 
Doct.  &Stud.  lib.  2   cap   24. 

3.  Saint  Germin  In  his  Book  of  Doctor  and  Student,  who  wrote 
after  26  H  8.  holdeth,  That  it  a  Man  makes  a  Prom  fe  for  a  temporal 
Thing.,  and  f-iu tars  toperjorm  it,  and  does  it  not,  if  he  be  fued  tor  Per- 
jury in  the  Spiritual  Court,  a  Prohibition  or  a  Premunire  lies  in  that 
Cale.  Alio  belays,  \ii  -.iM-a-n  ha  excom7H  ante  ate  m  the  Spiritual  Court 
fvrTrefpafs,  or  iuch  other  Thing  as  belongs  to  the  King's  Cro-vn  and 
his  Royal  Dignity  (Sec.  the  Party,  if  he  will,  mas'ha^ea  Premunire 
lac.  againif  him.     3  Inll.  122. 

4.  In  all  Cafes,  when  the  Caiife  originally  belongs  to  the  Cognizance  of  But  tho"  the 
the  Ecclcfiaflical  Court,  and  the  Suit  is  profecuted  there  in  the  far.ie  Nature,  Cauie  may 
as  the  Cognizance  belongs  to  them  (tho'  in  Truth  the  Caufe,  all  Circum-  originally 
llances  being  difclofed,  Lcluiigs  to  the  Court  of  th   King,  and  to  be  deter-  ^*^''£?,.[° 
mined  by  the  Common  Law)  yet  no  Preaiunire  lies  in  that  Cjie,  but  j]a);i(-ai  ^' 

a   Prohibition;  as  it  Tthes  fevered  trom  the  nine  Parts,    are  carried  Com-t,  yet  if 
izivay,  it  the  Parlon  lues  tor  the  Subflrattion  of  thefe  Titlies  in  the  Spi-  ^'^y«"  {or  it 
ritual  Court,  this  is  not  in  the  Cale  of  Premunire  ^  tor  it  may  be  that  '"''•'«  •'I* <«'«'■« 
the  Plaintitf  did  not  know  of  the  Severance,  nor  that  they  were  car-  %;i;J'%t;, 
rled  away,  nor  may  the  Eccleliaftical  Judge  know  it  i  and  tiio'  the  mtbehn?  to 
Defendant  pleads  this,  vet  the  Ecclelialiical  Court  may  proceed  to  try  tl.itC:tin,lut 
the  Truth  of  it  without  Danger.   And/o  in  Cale  oi  Syha  Ccedua,  tho'  the  '"'/^f  Cw»;,w 
Wood  perhaps  may  be  alove  20  Tears  Cro'icth.     12  Rep.  39.  the  Cale  munue  lies' 
of  Premunire.  ^^ifa  M,-' 

iuary  be  de- 
livered to  the  Par/or?,  and  after  the  Party  retakes  it,  if  the  Parfon  furs  for  this  as  a  Mortti.iry  to  kirn  deliver- 
ed a?id  carried  aivay,  (and  lb  of  Tithes  fevered)  he  is  in  Ca(c  of  Premunire.  But  ajter  the  Retakinp,  if 
le  fues  for  it  as  a  Mortuary  yiot  executed  in  Nature  of  a  Suit  which  helci^cs  to  the  Ecclrji.jfrical  Court,  lipoii 
the  Truth  of  the  Cafe  there  is  Caufe  of  Prohibition,  and  no  Premunire  lies:  So  if  lie  fues  for  Ttles  of 
Ji  ood  above  20  Tean  Grov/th,  lb  that  it  appears  by  the  Libel  that  the  Caufe  dies  not  belcn"  to  the  Fcclejlaflical 
Court,  the  Premunire  lies  ;  But  if  tlie  Suit  be  Pro  Sylva  Ca-dua  &c.  lb  that  as  the  Suit  is  framed,  the 
Cognisance  beloni^s  to  the  Ecclefiaftical  Court,  tho'  the  Truth  be  otherwilc,  a  Prol-.ibition  lies,  and  no 

Premunire       1 2  Kf  p.  59.  Cafe  of  Premunire. For  wheii  the  Caufe  cripiisaliy  bekv^'s  to  the  Eccle- 

fiaftical  Court,  tho  it  holds  Plea  of  any  Incident  to  it,  ivhich  belongs  to  the  Commcn  Law,  a  Prohibition  lies, 
.induce  a  Premunire.     12  Rep.  39.  40.  Cafe  of  Premunirc. 

S-  ^^'hen 


12  Prerogative  of  the  King. 

5.  When  the  Ca;ij'e  urignhilly  belongs  ro  the  Cogni/ance  o'i  the  Common 

Law  and  }J't  to  the  Krclc/iajiual  Conrtj  there^  rho'  tbtj  libel  lor  it  accord-. 

tug  to  the  Courfe  of  the  Kcckfiajiicdl  Law^  yet  the  Premunire  lies,   becauCe 

it  draws  the  Caufe  Ad  aliudKxamen,  and  fo  deprives  theSubjeft  of  the 

Benefit  ol   the  Common  Lmv,  which  is  his  Birth-right.     12  Rep.  40. 

Cale  of  Premunire. 

Sid_  41^;-  6.    A£lion  upon  the  Statute  27  E.  3.  of  Premunire,    and  declared 

S  C.  Mod.     that  Pafch.    18  Car.  2.   he  recovered  Zoo /.  Debt  againjl  the  Defendatit  in 

'h.C   Ad-     -S-  ^-   and  that  after  the  Defendant  exhibited  his  bill  in  Chancery,  and  ob- 

journatur,      tAxncA  A  Decree  for  the  Vacating  of  the  Judgment.     The  Delendant  de- 

murr'd.     This  Cafe  depended  from  Trin.  20  to  Trin.  22  Car.  2.  when 

Hale  Ch.  J.  held,  that  this  Cafe  was  not  within  the  Statute,  and  fo  he 

faid  it  appeared  by  the  Petition  upon  which  the  Statute  was  founded. 

And  no  more  was  done  thereupon.     Lev.  24  to  243.    Trin.  20  &  22 

Car.  2.  B.  R.  King  v.  Standilli. 


mentccT)'      (^'^'S)     Premunire.     Proceedhigs,    Pleadings  afid 

Judgff2£Nt. 

*  See  pi  9.  1. 1  N  Premunire,  the  Defendant  appeared  by  *  Attorney,  and  becaufe 
ard  in  Notis  J|^  {jg  (j^{^  not  come  in  Perfon,  he  was  condemned,  and  the  K^benff 
+  S^ P~Fof  ^^^"^"^^  ^^^  ^^ ^'^t  '9^^^'^  ^rt^^  ^  exigit  &c.  t  and  did  not  make  Mention  that 
It  fhali  be  he  warned  him  by  two  Months  ac«.ording  to  the  Statutes,  and  yet  well; 
intended  that  quoduota.     Br.  Premunire,  pi.  18.  cites  39  E.  3.  7. 

it  is  uell  . 

fer'vednccardw^to  Law,  for  other  Writs  ought  to  be  ferved  15  Dajjs  before  the  Return,  and  yet  no 
Wertion  tliereof  is  in  the  Return  ;  and  if  the  Sheriff  does  not  warn  him,  or  terve  the  Writ  as  he  ought, 
if  the  Party  be  damnified,  he  may  have  Writ  of  Difceit.    Br.  Retorn  de  Brief,  pi   56.  cites  S.  C. 

Br.  Premunire,  pi.  2.  cites  42  E  5.  7.  Contra,  That  where  the  Sherif  returned  the  Defendr.r.t  ivarned 
and  returned  ho  Day  ;  and  therefore  ill,  becaufe  by  ihcStatute  tlejjhall  be  ivarned  two  Alonthi  before  the 
Day  of  the  Retton,  which  cannot  be  counted  where  no  Day  of  Garnilhmcnt  is  returned,  for  which  Rea- 
fon  Sicut  alias  ilfued.     Br.  Retorn  de  Brief,  pi.  103.  ciies  S.  C. 

Ifthe  Defer:-      2.  In  Premunire  the  Defendant  was  reafonably  warned  according  to 

«''"'* '^'"'^  ""' the  Statute,  and  did  not  come  i  by  which  it  was  adjudged  that  he 

&c%^ti7e    ftallbeput  out  of  Proteaion  &c.     Br.  Premunire,    pi.  3.    cites  43 

exprefs  Let-  E.  3.6. 

ter  of  the 

Law  Judgment  fliall  be  given  againft  him,  according  to  the  Aft  2;  E.  5.     5  Inft.  125. 

And  there  it  3.  Piemumie  againjl  divers,  fome  as  Principal  and  fotne  as  Acce£~aries  i 
was  admit-  '       ~ '  -  .    -      - 


that  they  fiiail  ihould  anfwcr  :  But  per  Fencote,  they  l/jiill  not  anfziier  till  the  Principal 
^1.""',"^^!^'"    be  attainted^    Br.  Premunire,  pi.  4.  cites  44  E.  3.  7. 

Aw?  J  Pre  .-   i.         1 

teBion,  is  no  Jttaimler;  for  Thorp  Ch.  J  faid  it  is  only  a  Pain  given  by  the  Statute,  that  if  they  do  not 
come  the  firft  Day  they  fhall  be  out  of  the  Proteftion  of  the  King,  and  their  Lands  and  Chattels 
forfeited:  But  this  is  no  Attainder,  ^i>r  C,r]>/rti /w//  i//;(e  againft  them ;  and  tf  they  do  not  appear  at  the 
Capias,  Exigent  pall  ijj'ue  ;  and  fo  the  Statute  proves  that  they  have  Anfwcr  ;  for  otherwife  it  fhall  be 
in  vain  to  award  Proceli  ;  quod  nota.     Ibid. 

4.  And  feveral  admitted  there,  that  there  may  he  Principal  and  Accef- 
fary  in  Premunire  ;  but  Candilh  faid  that  //'he  who  is  c&iled  Principal 
dies,  yet  the  vtherjhall  anfwer  :  Contra 'in  Felony  ;  but  Finch  faid  that 
it  is  more  like  to  Trefpafs  than  to  Felony-,  for  in  Tre'fpafs  he  who  firll  comes 
Ihall  anfwer,  and  if  he  be  convifted  of  Damages,  and  after  another 
comes  and  pleads,  and  is  convifted,  he  Ihall  be  charged  of  the  firll 

Damages ; 


Prerogative  of  the  King.  i  -:> 


Damnges  i  and  if  he  be  acquicred,  yet  the  hrli  Ihall  be  charged  i  and 
the  \\  lit  was  that  Ibch  Munutenentes  &  Abettatores  ipl'uin  expuleru:,t  : 
And  alter  Finch  awarded,  that  the  Defendants  who  appeared  IhdUid 
anlwer;  and  ib  it  fccms  that  all  are  Principals.  Er.  Preniunire,  pi.  4. 
cites  44  E.  3.  7. 

5.  i'rcmunire  by  nn  Ahhox.  a  gal  ;ijl  tivoi  the  cue  juade  Fhfar'ltj  and 
was />//?  oift  of  Protctlicfi  ot"  the  King,  and  his  Goods  and  Chartels/w-- 
feitcd;  and  zh\sat  the  firjl  Day  as  it  iecms.  Rolfe  defended  the  Tort  and 
Force,  and  demanded  Judgment  it  the  Court  would  take  Conulance  ; 
lor  he  fat d  that  the  JUot  Plaifitijf  was  dcpofed  at  C.  ta  the  County  ofChcJ'er^ 
■where  this  Court  has  no  Jtmjditiion.  Chauntrell  faid,  this  goes  to  the 
Action.  Per  Strange,  .:\t  leaft  it  goes  to  the  NN'rit,  but  il  you  agree 
to  the  Iflue,  it  ihali  be  tried  where  the  Writ  is  brought,  by  the  Statute 
&C.  of  9  E.  3.  cap.  4.  as  it  fee.ms.  And  alt:er  Roli'pafs'd  o\er,  and 
pleaded  Excommunication.  Brooke  makes  a  Q^itere,  if  the  foreign 
Plea  above  lliall  be  tried  where  the  Writ  is  brought,  where  it  goes  to 
the  Writ  i  tor  the  Statute  mentions  where  it  is  pleaded  in  Bar.  Br. 
Premunire,  pi.  8.  cites  8  H.  6.  3. 

6.  Bill  ot  Premunire  lor  the  King  was  brought  againft  J.N.  in  B.  R.  Br.  Rill.  pi. 
and  he  pleaded  to  the  Bill,  becaule  the  Statute  is  that  Jach  Suit /hall  be  '""^e^f  ;^" 
by  Bill  Lefore  the  King  and  his  Council,  or  by  Premunire,  which  Bill  be-  Anno  22  H. 
lore  the  King  and  his  Council,  is  intended  before  him  and  his  Lords,  and  s.  it  was 
not  before  him  in  his  Bench;  and  Premunire  is  intended  by  H-'rit  Original^  common 
and  not  by  Bill  in  B.  R.   wherefore  Plaintilf  made  Bill   of  Premu-  ScrlS'^vcL 
nire  againll  him  in  Cullody  of  the  Marliial,   and  then  he  was  com-  compcU'd  to 
mitted  to  anfwer.     Br.  Premunire,  pi.  i.  cites  27  H.  6.  5.  anuver  to 

the  Bills  of 
Piemunire  in  B.  R.  wlio  were  not  in  Cuftody  of  the  Maif.ial  ;  quod  nora.     I!)iJ. 

7.  Premunire  cg^i'i'fi  thrcc^  one  as  Fncurator,    another  as   Counsellor,  The  Defen- 
and  the  third  as  Attorney  •  the  'Da-uiages  (tall  be  fevered.     Per  three  [ul-  '^,"'"^-  ™^X 
tices.     Br.  Premunire,  pi.  17.  cites"36'H.  6.  29.  "        th^'he^vm 

ri:ake  them 
a!!  Primip.^Ij,  or  the  c>:e  Ptir.cr^.-.l  r.r.d  tJ:e  oilers  Jccejfaries  ;  but  the  Damages  fiia'l   be  fceraHv  tax'd. 
5  Inft.  125. 

8.  Premunire  agaiufi  four;  tzvo  appeared  and  ttvo  not;  and  the  Wnx. 
was  abated  lor  Default  therein  5  and  therelore  no  Judgment  was  given 
againll  the  two  who  made  Detault,  inafmuch  as  the  \\'rit  was  ill 
and  abated.     Br.  Premunire,  pi.  11.  cites  5  E.  4.  6. 

9.  In  Premunire  the  Defendant  appeared,  and  took  Exception;  and  the  A  Man  fliall 
Court  for  di'.  ers  Conliderations  permitted  him  to  make  Attorney.  Br.  '■'''  "•"^''  -'''- 
Attorney,  pi.  53-  cites  9  E.  4.  2.  '  S'lir 

/;'/j  infpeiial 
Cafe.  Br.  Attorney,  pi.  S2. S.  P.  Br.  Attorney,  pi.  104  cites  50  E.  ;.  :. Defendant  can- 
not ajipear  by  Attorney,  but  in  Per/on  in  this  Suit,    cho'  lie  be  a  Lord  of  Parliament,    unlels  by  fpccial 

Writ  of  the  Chancery.     Br.  Premunire,  pi.  1  5.  ci'cs  i  5  H.  7.  9. S.  P.  And  this  by  the  Statute  ;S  E. 

;.  cap.  2.     5  Inlt.  125, S.  P.  Whether  the  Defendant  be  a  Peer  or  Commoner.     It  is  fad  indeed 

in  Roll's  Reports,  That  Sir  Anthony  Mildmay  vasfiifTered  to  p!e^d .t  P^ndon  to  a  Premunire  by  .-Ittorrie) 
and  no  Mention  is  made  of  any  'uch  V\  rit  rrGranr;  but  .'•erjeant  Haulcins  fays  he  prelumcs  there  was 
aClaufe  tothisEftl-ct  in  the  Pardon.     2  Hav,k.  PLC  275.  cap.  26.  S.  55. 

10.  In  Premunire  a  Man  may  ha\e  Procels  ly  Prcclamation  only, 
and  may  have  Exige/it  if  he  ivill.  Br.  Proccls,  pi.  So.  cites  9  E. 
4.  2. 

11.  A   Man    brought  *  Bill  againjl  f .  N.  in  Cufcdy  of  the  Marpal,'^t  Parlja- 
and  counted  upon  the  Pre-inunire,that  he  had  fued  the  Plaintiff  in  the  Arches  ^'^^^>\-^-9^ 
jor  Goods  of  J.  S.  and  had  appealed  to  Rente  ;  and    it  lies  v,  ell   hy  Bill 'i".^'*,^ViioiTr" 
without  Orfginal  ;  lor  this  is  to  give  him  Day  in  Court,  and  I'chen  he  iur  leSta- 
is  m  CufI'd)  ofth  MarP a!  be  is  al-xays  in  Court  ;    quod  nota  per  Cur.  lure,  pi.  57. 

D  But 


I  A.  Prerogative  of  the  King". 

citcsS.C.—  But  where  the  Statute  gives  the  Proceis  or  Form  of  the  OriginJ,  there 
*  This  Suit  jjij-j,  {\,r^i[  i^e  only  oblerved  ;  upon  which  the  Leleiidanc  laid  ihathel'ued 
"fr'^-^  l^°^^m  '"  ^^'^^  Spiritual  Court  as  Executor  ol'  J.  S.  to  luae  tiie  Will  proved^ 
bya;mW  v.'here  the  Plaintiff  claimed  alf'o  to  be  Executor  by  another  Will,  and 
/xv;<;'but  if  had  Citatitm  thereofj  ablque  hoc  that  he  is  guilty  in  other  Manner, 
the  Dcfeu-  ^j^^j  p^j.  HuH'ey  and  Fairlax,  This  is  no  Plea,  and  theretbre  nothing- 
dantbe  w^  ^  ^^,,^jj^  j^^  enterecl  but  Not  Guilty  i  lor  the  Plea  dees  v.vt  anl'wer  any 
nihrMi! xhc  Thing'to  the  Suit  of  the  Goods.  And  lo  lee  that  Not  Guilty  is  a  good 
Suic  n'-iv  be  Plea  in  this  Action,  and  that  Execaturs  camict  ftie  jor  the  Goods  of  th« 
againft  iiini    Tdhitor  ill  the  Spiritual  Court,  but  at  Ccminon  Law.     Br.  Preniunire,  pi. 

trivine  of  the  two  Montlis  was,  that  they  lliou'd  have  Koticc,  wl.ich  is  fatisficd  ;  and  therewith  agrees 
the  Prcceden's  ;  and  the  Defendant  cannot  be  fiied  in  any  other  C^ourt  when  they  are  in  Cudoaia  J\lare-i 
fclialli.     See  the  Statute  of  18  P-iiz.  cap.  5.  but  that  Statute  extends  to  ccnwiion  Informers,  and  not  when 

the  Suit  is  commenced  by  the  Party  grieved.      5  Inft.  1 15.. Bitt  if  the  DeJencianI  .if pears  mid  pleads, 

and  the  IlTue  be  i'cmni  a^ahift  htw,  or  if  he  demur  in  Law  &c.  Jitdprncnt  ITiall  be  given  againft  him,  that 
he  jhall  he  cut  of 'protect  ton  Sec.  And  ib  has  the  Statute  27  E.  5.  been  interpreted  ;  and  Judgment  given 
accordingly.     3  Inft.  115. 

S.P.  If  he  12.  The  Judgment  in  Premunire  is,  'That  the  Defendant  pall  he  (votA 

be  in  Pri-  thencetbrth"cw?  of  the  King's  PrctecJion,  and  his  Lams  and  Tenements, 

l^ieDefen  <^'00<^s  and  Chattels  forfeited  to  the  King,  and  that  his  Bcdj  Ihall  reniaiu 

dantbefon-  ?«  Prifon  at  the  Kinj's'P  leaf  tire.     Co.  Litt.  131.  b. 

Aewned  titoit 

his  Def-.ult  in  >:ot  appeayinr,  whether  at  the  Suit  of  the  King  or  the  Party,  thzfanfe  Juofrment  fhall  be 
given  a.<t  to  the  being  out  of  the  K ing's  Protediion,  and  tie  Forfeiture ;  but  inftead  of  the  Claufe  ti'.at  the 
Body  fliall  remain  in  Prifon,  there  fliall  be  an  Award  of  a  Capiatur.     2  Hawk.  PI.  C  44).  cap  4S.  S.9. 

5  Le.  159.         13.    The    Attorney-General  profecuted  a  Premunire  for  the  Queen 

P'-.iS?-  ,      and  P.    againlt  Doctor  M.  and  others,  becaufe  they  procured  the  laid 

Fr'^'^'e"!.     -P-  '■^  ^^  J'"^^  '"  ^^^  ^'^^'  '^t  Oxford  before  the  Cornviijfary  there  in  an  Ac- 

S  R.  by       1^0^  ofTreffafs  by  Libel  according  to  the  Eccleftaflical  Law,  in  ivhich  Suit 

^iame  of      P.  pleaded  Son  Franktenement,  and  fo  to  the  Jurifdiftion  of  the  Court, 

Pavrezv. Dr.  ^,fji^  ycf  f/pcj  proceeded,    and  P.    was  condemned  and  iniprilbned.     And 

Matthews.     _^^^^^  ^^mt  Suit  depended,  the  Queen's  Attorney  withdrew  the  Suit 

for  the  Queen  ;  and  it  was  moved  il,  notwithftanding  that,  the  Party 

grieved  might  proceed.     But  it  was  held  by  the  whole  Court,  That 

if  the  King's  Attorney  will  not  further  projecnte,  the  Party  grieved  cannot 

maintain  this  Suit  ;  for  the  principal   Matter  in  the  Premunire  is  the 

Conviction,    and  the  putting  of  the  Party  out  of  the  Proteclion  of  the 

King,  and  the  Damages  are  but  acceffary,  and  then  the  Principal  being 

relealed  the  Damages  are  gone.     Le.  292.    pi.  399.    Mich.    26   &    27 

Eliz.  B.  R.  The  Queen  v.  The  Dean  of  Chriltchurch. 

14.  The  King  brought  a  Prohibition  againlt  the  Prior  of  W.  that 
where  the  King  had  recovered  in  J^i/are  Irapedit,  the  Defendant  Cent  his 
Frere  to  Rome  ivith  an  Appeal,  and  lued  there  to  avoid  the  Judgment,  ac- 
cording to  the  Statute  of  Premunire.  And  upon  Not  Guilty  pleaded, 
all  this  was  tound  againft  the  Defendant i  and  Judgment  v\a.s  prayed 
for  the  King  upon  the  Statute  of  27  E.  3.  c.  i.  m  Caie  of  Premunire  j 
and  it  was  adjudged  that  he  lliall  not  have  it,  becaufe  the  Judgment 
ought  to  le  conformable  to  the  Original,  and  this  Suit  was  not  taken  ac- 
cording to  the  Statute,  but  by  a  Writ  of  Prohibition  at  the  Common 
Law.  9  Rep.  74.  a.  Trin.  9  Jac.  in  Doctor  Huliey's  Cale,  cited  as 
30  E.  3.  II.  b.  The  King  v.  the  Prior  of  Woburne. 
The  Fe-  15.  Error  to  re'\erfe  a  Judgment  in  Premunire  given  by  the  Jullices 

porter  adds  of  Alfife  and  Gaol-Delivery  in  the  County  ot  Somerfet  againlt  Perin, 
famrpau'ir^  for  refujing  to  take  the  Oath  o\'  Obedience  mentioned  in  the  Statute  3  |ac. 
fuch  a  Judg -  eap.  3.  Perin  ple;'.dcd  Not  Guilty  to  the  Indictment,  and  the ///i/*? 
mentin  Pre-  zvas  jomcd  between  him  and  the  Clerk  01  Aliizes,  and  i\\q  ylivard  of  the 
munirea-      Fe»/rt' facias  vvas  (rf>-///^'rY/ upon  the  Record  rhu=;,  vi/..  Super  qtw  precept,  fait 

gamft  one  i       i      j.         i 


Prerogative  of  the  King.  1 5 

V:c.  Com.  Somers.  prtcd.  qriod  Venire  faciat  &cc.  where  ir  ought  to  be  -Oixon  was 
Precept,  ell.  and  not  Prieceptuin  fnit.  in  the  Picrerpeiie£t  I'enlc  ;  tor  i:  ),'-7'^''''^,' 

•  1  "^         T-    1  •  \  •  1     •      I  <^  1     1         ■-  '  TiT  ••11  '    ''"'•■    ""^^ 

IS  ruther  ii  Hiltory  ot  a  Matter  which  was  acted  betore  tTv^:  lliuc)oin  cl,  ibid._s.  P. 
than  the  Record  of  the  Court  ot  an  Act  done  bv  the  Court  in  Priefentij  Vent.  i:;. 
which  always  ought  to  be  recorded  in  t!ie  Prelent  Tenfe  ,  and  lor  this  -Michi^Car. 
Error  tiic  lud^mcnt  was  reverlcd,    and  the  Party  rcllored.     2  Sand.  ^-.'^'^-•Tie 
393.  Mich.  23  Car.  2.  The  King  v.  Perin.  Gi-eea£cal. 

16.  The  Defendants  were  indicted  tor  -refiijiugthe  Oaths  of  Obedience 
enjoined  by  3  Jac.  cap.  4.  hnd  the  Indict laajt  was,  T'hdt  at  the  yJl/izes 
and  General  Gaol-Delivery  held  before  Sir  R.  A.  &c  and  Z.  E.  Gent,  eidciu 
R.  A.  and 'T.  L.  hac  vice  AJJ'ociat.  per  Sacrament nm  fuum  &c.  prafentat. 
fxijlit  n/odo  feqaen.  viz.  Jiir.  pr^efcntant  qiiod^  at  tlie  General  Quarter- 
Setfions  for  the  County  of  Hereford  14  January  Anno  30.  the  Jafiicesof 
Peace  did  tender  the  laid  Oath  to  the  Deiendants,  and  they  rel'uied  i  and 
afterwards  adJjfifastent.  pro  Com.  Hereford  pr^dicl.  apiid  Hereford  prxdiff. 
in  Com.  Herefo-rd  prxd.  31  Martii  31  Car.  2.  Coram  Roberto  Atkins  Milrte 
Balnei  tin  Jnjlic.  ditii  Domini  Regis  de  Banco,  &  Z.  B.  Gen.  e'xdcm  R.  A. 
&  'Jt.  L.  Mil.  iin.  Baron.  Scaccani  diiii  Domini  Regis  ad  Afjifas  in  Com. 
Hereford  prxd.  capiend.  affign.  per  formam  Statut.  the  faid  Jitjlices  A. 
and  Z.  B.  again  tendered  the  [aid  Oath.,  and  they  refiifed  to  take  the 
fame.  And  upon  Not  Guilty  pleaded.,  the  Defendants  Relitf  a  Veri/icatione 
confefs  the  Judgment;  and  [udgment  was  given  againlt  them:  And  up- 
on a  V\  rit  o^  Error.,  the  Error  a[//gii\{  was,  that  the  feccnd  lender  oi  the 
Oath  ivas  by  the  Jujiices  of  AJJife  only  i  whereas  the  Statute  3  Jac.  fays  U 
mult  be  by  Jitfiices  of  Afjife  and  Gaul-Deh-vcry  ;  and  this  feemed  not  to 
be  allowed  by  Dolben,  but  by  the  other  two  it  was  not  Ipoke  to  ;  but 
Raymond  conceived  'twas  Error,  and  that  the  juftices  of  Aliife  can- 
not by  Virtue  of  that  Commilhon  barely  tender  the  laid  Oath  ; 
for  the  Statute  fays,  that  in  Cafe  they  re  fife  to  take  the  faid  Oath  tendered 
them  by  the  JuJlices  of  Peace,  then  the  faid  ffuflices  fl')all  and  may  commit 
the  fame  Perfons  to  the  Common  Gaol,  there  to  remain  without  Bail  or 
Mainprise  tmti}  the  next  Ajffes,  ivtere  the  faid  Oath  fhall  be  again  in  the 
faid  open  Afffes  required  of  thon  by  the  faid  Jufhccs  of  Afflfe  and  Gaol-De- 
livery in  their  open  AJfifes;  and  every  Perfon  I'o  retuiing  Ihall  incur  the 
Danger  and  Penalty  of  a  Preniunire,  by  which  it  appears  that  they 
being  committed  to  Gaol  by  judgment  oi  the  Juilices  of  Peace,  none 
can  deli\er  them  but  they  wlio  ha^e  Power  to  deliver  the  Gaoii  and 
the'  the  Statute  de  Finibus  27  E.  i.  gives  Jultices  of  A'Tife  Power  to 
deli\er  the  Gaol,  that  is  intended  only  oi  Felons,  as  appears  by 
Stauiif  PI.  Cor.  57  &  58.  But  the  )  udgment  was  reverled  lor  an  in- 
curable Error,  which  was  the  nnf  reciting  of  the  Oath  contained  in  the  Acl. 
Raym.  374.  375.  Trin.  32  Car.  2.  B. R.  The  King  v.  Mounfon. 


(P.  a.  6)    Premunirs.  Forfeiture  oj  zvkjt,  pud  hj  \dmm. 

I.  T^Remunlre  againji  feveral  upon  the  Statute  27  E  3.  cap  i.  They 
jff  were  found  Guilty,  the  one  as  Principal  and  the  others  as  Acceffaries^ 
and  the  Damages  were  levered  i  And  per  Mais,  there  mav  be  Princi- 
pal and  Accehory  in  Premunire,  and  he  would  have  fevered  the  Da- 
mages i  but  Gafcoyne  law  the  Record,  which  fuppofed  that  they  were 
Coadjutors,  Procurers  and  Abettors  to  him  who  made  the  Bull,  bv 
whicii  it  was  awarded  that  they  recover  Damages  in  coinmon  ;  and 
the  Attorney  ot  the  King  prayed  that  they  may  torfeit  their  Land  and 
Chattels,  becaufe  they  were  attainted  as  above.  Gai'coyne  faid  the 
Statute  dees  net  ivill  that  he  /hall  [orjeit  his  Land  &c  unlejs  for  Contumacy 
for  making  Default  at  the  Day  oi  the  Premunire  returned  and  fued,  by 

which 


1 6  Preroaative  of  the  Khw. 


b" 


♦  Br.Foi--  which  &;c.  *  Eut  fee,  that  there  are  other  Statures  in  the  Time  ot  R^. 
tciturcsdc  2.  that  t!iey  lliali  ibrlcic  Lands  and  Chattels,  it"  they  are  attainted,  but 
'?2^'c'ic«8     ^°^  by  the  Statute  27  E.  3.    quod  nota.     Br.  I'remunire,  pi.  6.  cites  B 

H.  4.-.ac-    H.    4.    6. 

coi-cii'ij,iy. —  .       .^ .    , 

.*'.  ['.    Ami  tliL-Cc  .irc  L/irdi  'UiJ'uh  he  luxd  /it  the  Hniie  oj  the  Jci  done,    nv.d  attcr,  if  it  be  upon  Verdict,  a.S' 

by  Felony  or  frcaioa    Br.  I'rcmiKiirc,  pi.  20.  cites  8  H.  4  7.  per  Ga:c6ig  ic 

Br  Prcmu-  2.  Richard  Fermor  ol  London  "ivas  attainted  in  a  Premunire  in  the 
nirc.  111.  19.  Tjiiie  of  H.  8.  and  his  Lands  were  forfeited  z«  Ftv,  and  not  only  fot 
Brooke  kvs  Term  of  Life  i  quod  nota.     Br.  Forfeiture  dc  Terres,    pi.  101.  cites 

and  fo'l-c,'      34  li.  8. 

that  it  is  not 

only  a  Forfeiture  for  Term  of  Life,  as  in  an  Attaint  ;  for  tlie  one  is  by  Statute,  and  the  other  is  by 

Common  Law^ But  xfT'emnt  w  'T.m'  is  attainted  in  a  Premunire,  Uejh.il!  jcije/t  tlie  Land  but  di:- 

rhifr  lis  Lite  ;  for  albeit  the  Statute  of  16  R  2.  caf.  5.  enadts.  That  their  Lands  and  Tenements,  Goods 
and  Chattels  fiiall  be  forfeit  to  the  Kin;;,  that  mull  be  underftood  of  fuch  an  Eifate  as  he  may  lawfully 
forfeit,  and  that  is  during  his  own  Life.  And  thcfe  ,c^er,eral  li  crds  do  r.ot  take  a'xay  tl  e  Force  of  tie  St.-.- 
Iiite  de  Dcr.is  Conditionalibus ;  but  he  fliall  forfeit  all  his  Fee-fmple  Lands,  Eftatcs  lor  Life,  Good.';  and 

<'.;hattels     And  fo  it  was  re'blved  in  *  iCrUDBin's  Cafe.    Co  L'tt.  i;_o.  a. S.  P.  But  the  26  H.  8. 

has  the  Words,  Jll  Manner  of  Inheritance  to  he  forfeited  :  The  Offence  is  greater  ^\  ithin  the  z6  H.  8.  and 

the  Words  more  peremptory  than  in  the  other.     Jenk  2S-.    in  y].  21. ♦  S.  C.  cited,  as  re'blved  by 

all  the  Judges  of  England.     Pafch.  21  Eiiz.  11   Kep.  65.  b.  in  Dr  Poller's  Cafe.— -—5  lull.  126.  cites 

S.  C. — '■ Serjeant  Hawkins  fiys  it  is  agreed,   That_  the  Statutes  of  Premunire,  which  give   a  general 

Forfeiture  of  all  the  Lands  and  Tenements  of  the  Oft'.;nder,  extend  not  to  Lands  m  Tail.  2  Hawk.  Pi. 
C.  454.  cap.  49.  S.  2S. 

3.  He,  that  procures  one  ^o ///e  z«  the  Court  Chrlftian,  ihall  forfeit  as 
much  as  he  that  fueth,  and  is  Principal  as  well  as  the  other,  and  is 
in  equal  Degree  uf  Premunire  ;  but  if  thty  l-'Oth  he  indiBed,  xhtuueofthe 
Att  and  the  other  of  the  Procurement.^  and  he  that  is  charged  zvith  the 
Procurement  is  found  Gui/ty,  and  the  other  by  another  Inquejl  is  found  Not 
Gutity,  judgment  Ihall  never  be  given  againft  him  who  was  indifted  of 
the  Procurement,  becaufe  he  cannot  be  an  Oifender  but  in  Refpect  of 
the  Oil'ence  ol  the  other.  3  Inll.  125.  126. 
Cro,  C,  172,  4.  One  Trugion  was  feifed  in  Fee  ot  Lands,  and  fo  feifed  was  in- 
^-  C.  ditted  of  Premunire,  and  before  his  Tt-ial  he  gave  them  lu  'Tail ;    and 

alterwards  he  vi'as  attainted  of  Premunire,  and  an  Office  under  the 
Seal  of  the  Exchequer  found  it  i  and  Queen  Elizabeth  under  the 
Great  Seal  granted  them  to  G.  C.  and  this  Grant  by  the  Queen  was 
within  the  Time  of  the  Purview  of  the  Statute  of  18  Eliz.  tor  Confir- 
mation of  Grants  of  the  King  ;  and  the  Quellion  was.  Whether  the  At- 
tainder in  the  Premunire  jhall  avoid  a  Grant  made  by  the  Party ^  Mefne  be- 
tween the  Indiclment  and  the  'Trial.,  and  Judgment  thereupon.  And  this 
was  argued  feveral  Times;  but  it  being  a  great  Point  of  Doubt  and 
Confequence,  thejultices  did  not  give  any  Opinion  or  Refolution. 
But  it  was  relblved  that  the  Grant  was  not  good  at  the  Common  Law; 
betaule  upon  the  Attainder  the  Eltate  of  Franktenement  was  not  di- 
velted,  and  veiled  in  the  Queen  till  an  Office  thereof  iound,  and  the 
Office  ought  to  be  an  Office  to  uintle,  and  not  to  inform  the  Queen  of  the 
Particulars  of  the  Land;  and  therefore  inafmuch  as  it  was  by  Corn- 
mi  Ihon  under  the  Seal  of  the  Exchequer,  and  not  the  Great  Seal, 
therelore  the  faid  Office  was  infufficient  to  intitle  the  Queen,  as  it  is 
reioLed  in  |j5agE's  Cafe.  5  Co.  Jo.  217.  Mich  5  Car.  B.  R.  Gioi\Q  v. 
Gayne. 


(P.  a.  7)      Premunire.     Suing  in    other   Courts.      iriM 
Jhall  be   laid  to  be  Other  Courts, 

I.     A    FTER  Judgment  given  before  Roger  Loveday  and  Walter 
/\  Winborn,  Jullices  ot  Oyer  and  Teiminer,  agaiuit  Walter  Bi- 

lliOp 


Prerogative  of  the  Rini^-.  17 


i]  opofExeterand  his  Tenants,  thefiiid  Rilhop procured  the iJilhopol' Lan- 
dau in  the  Pariih  Churches  oi  Coriuvali  and  Devonlhirc,  to  pronounce 
Sentence  oi Excoinnitnncattoii  by  Sentence  of  the  Archbilhop  of  (^-inter- 
bury,  (which  Sentence  was  had  by  the  I'rocurement  of  the  faid  Bilhop  ol" 
Exeter) i^^^////?  ^//Perfonsof  wiiacElLire,  Degree  or  Dignity  foevcr,  ;te 
dealt  in  the  Proceedings  Be  againfi  the  Biji.op  and  bis  tenants  before  the  [aid 
Jtijiiccs.  And  in  this  Pare  of  the  Record,  being  in  French,  it  is  laid, 
La  Corone  &  la  Dignity  nollre  Scigniour  le  Roy  ne  doit  per  autre 
eftre  Jultice  ne  guync  &.c.  Ec  les  choles  que  font  palies  en  fa  court  per 
judgment,  ou  en  auter  manner  ne  devient  eltre  ea  autri  court  recic- 
cees  &.C.  Out  of  this  Record  Lord  Coke  iays  we  may  obferve  three 
Things,  ift.  What  the  Ancient  La-iv  of  this  Realm  was  before  the 
making  the  Acl  27  £,  3.  2dly.  That  (En  autri  court)  which  are  the 
Words  ot  this  Aft,  was  taken  to  be  a.-wther  Court  within  the  Reahn. 
3dly.  That  the  Mifchief  before  this  A£t  was  for  Suits  in  other  Courts 
within  this  Realm  after  Judgment  given  in  the  King's  Courts.  3  Init. 
123.  cites  6  E,  I.  The  Earl  of  Cornwall's  Cafe. 

2.  J.  W.  exhibited  a  Bill  of  Premunire  againll  W.  P.  upon  the  Sta-  SoR.  B.  and 
tute  oi  16  R.  2.    for  fumg  in  the  Admiral  Court  beiore  John  Earl  of  ^'- ''^  ^"'^ 
Huntingdon,   Admiral  of  England,  for  a  Caiife  which  belonged  to  the  "h.,r!4j'^'^'^ 
Common  Law ^  whereunto  the  Defendant  pleaded  Not  Guilty.     3  Inlt.  wiurthe(;rl 
121.  cites  Mich.  9  H.  7.  coram  Rege.  fence  ofPrj- 

nmnire,  ht- 
caufe  x\\ty  filed  J.  C.  he  fere  Henry  Duke  of  Exeter  Jdmhal  of  E!!<?J,wd,  fcr  taking  nm-ny  a  Crcfs  of  Gold, 
and  other  Gccds,  fi<}<poJiiig  the  fame  to  be  talenfuper  altuni  Mare,  ill  ere  in  Truth  they  urre  taken  at  Staff:rJ. 
in  the  County  of  Eflcx,  and  the  Stature  of  16  R  2  v\as  recited,  That  none  fl.'juld  fuc  in  Curia  Ko- 
mana  feu  Alibi  &c.  atid  that  the  Conulimce  of  this  Plea  belonged  to  the  Commor.  Law,  an.l  not  to  the 
Court  of  the  Admiral.  And /o  it  h  of  the  Conjlable  and  Marjhal;  if  they  hold  Plea  of  i  Matter  determia- 
able  by  the  Coratnoii  Law.     3  Inft.  121.  cites  5S  H  6.  coiam  Rcge. 

3.  A  Suit  in  the  Ecckjiajiical  Court  within  the  Realm  for  a  Temporal 
Caufe  was  a  Caufe  of  Premunire.  3  Inll.  120.  cites  it  as  adjudged 
by  the  whole  Court,  Mich,  ii  H.  7. 

4.  In  Rail.  pi.  429.  b.  and  430.  there  is  a  Precedent  of  a  Pre.-nunire 
for  fuing  in  the  Ecclelialtical  Court  for  Debt.     3  Inlt.  121. 

5.  It  was  refolved.  That  he  that  fued  in  the  Eccleiiaitical  Court  fjr 
the  Forgery  of  a  laji  Will  and  Teftament,  incurr'd  the  Danger  of  a  Pre- 
munire i  becaufe  the  Party  grieved  might  have  his  Remedy  by  tho 
Common  Law.     3  Inll.  121.  cites  17  H.  7. 

6.  And  in  the  fame  Year  of  17  H.  7.  Juflice  Spilman  alfo  reports,  Th?  Pnflnop 
that  one  Turbervile,  as  well  for  the  King  as  himfell,  fued  a  Premunire  °^  Bangor 
againft  a  Parfon,  lor  fuing /or  "fithcs   in  tiie  Eccleiiaitical  Court,  '?/- i^^^a  Pr^l^^^l'^ 
ledging  the  fame  to  he  fevered  from  the  nine  Parts  i  and  Judgment  gi,  ea  nire  for  hold- 
againil  the  Defendant.     3  Inll.  121.  uitrFieaofan 

j^dvcufon, 
.777(^  0/ T/z/jj /ewrV  from  the  nine  Parts.     5   Ind.  122.  cites  Trin.  56  H.  S.  coram  Rcgc.  Rot.  9.    The 
Bifhop  ol  Bangor's  Cuie. 

7.  And  the  Reafon  of  all  thefe  Cafes  Is,  bccaiifc  they  draw  Matters 
triable  by  tht  Commow  l^^v^'  ad  all  ltd  csj  men  ^  and  to  be  difcufs'd  per 
aliam  Legem.      3  Init.  121. 

8.  But  Tome  ha\e  made  a  .G)i(cJI-ion,w\i'it\viv,f^ncc  the  F.cclc/iajlical  Jii~ 
nfditl ion  ivas  acknowledged  to  oe  in  the  Croivn,  an  Eccleiiaitical  Judge 
holding  Plea  of  temporal  Matter  belonging  to  the  Common  Lavv  in- 
curs the  Danger  of  a  Premunire  >  Tho'  hereof  there  is  no  Quellion  at 
all,  yet  lelt  any  Man  might  be  led  into  an  Error  in  a  Cafe  lb  dange- 
rous, we  will  clear  this  Point  by  Realon,  Precedent  and  Authoritv'  ; 
the  Realon  holdeth  itill,  to  draw  the  Matter  Ad  aliud  examen  See.  and 
the  like  Qiieltion  might  be  m.ade  for  the  Admiral  Court,  which  is  and 
e\er  was  tne  King's  Court,  but  governed  per  aliam  Lcgc:u  i  and  lb 
likewile  of  the  Court  of  the  Conltablc  and  Marihai.     3  ln:l.  121. 

E  9:  Tha 


1 8  Prerogative  of  the  ivin^-. 


b* 


9.  The  Bifhop  of  Norwich  was  attainted  in  a  Premunire  at  the 
King's  Suit,  and  his  Caic  wss  thi.s.  \\  ithin  the  Town  of  Thetlord 
there  then  was  a  Gujiam^  7'hat  all  hccle/iajiical  Canfcs  iiriling  within  the 
laid  I'own  (Ijonld  be  dctcrmnud  hcfcre  the  De-fu  tlicre,  h?.\  ing  a  peculiar 
liccleiiaftical  Jurifdiftion,    and  that  no  Inhabitant  of  the  fame  Town 

Jbonld  be  drawn  before  any  other  Ecckfiajlical  Judge,  and  that  every  Per  fun 
futng  contrary  to  that  Cuftoni,  the  lame  being  prcfcnted  bejcrc  the  Mayor 
of  Thetlord,  Jhould  forfeit  6  s.  S  d.  and  that  an  Inhabitant  of  Thetlord, 
lor  an  Ecclelialtical  Caufe  ariling  in  Thetlord,  lucd  another  beiore  the 
Bilhop  of  Norwich  within  his  ConJiftory  Court  at  Norwich  j  and  this 
was  prefented  before  the  Mayor  of  Theiford,  according  to  the  Cuitom, 
•whereby  he  forfeited  6  s.  8d.  The  laid  B.^.iop  cited  the  laid  Mayor  for 
taking  the  laid  Prefentment,  Pro  faliitc  animx,  to  ajfear  before  him  at  his 
Houle  at  Hoxton  in  Suliolk,  where  the  Mayor  appeared,  and  the  Bi- 
Jhcp  ore  tenus  injoin'd,  upon  Pain  of  Excommunication,  to  annul  the  faid 
Prefentment  beiore  a  Day.  And  for  this  Onence  he  was  attainted  in  a 
Premunire,  upon  his  Confeffion  before  Fit/.james  Ch.  J.  and  the  Court 
of  King's  Jiench,  upon  the  Statute  of  16  R.  2.  the  Record  whereof  Lord 
Coke  lays  he  has  leen.  By  which  Judgment  two  Points  are  cleared, 
I.  That  the  Statute  of  Premunire  extends  to  Eccleliaftical  Courts 
■within  the  Realm,  cdly.  That  afterthe  King  was  in  Pol'felfion  of  his 
Supremacy  the  Bifhops  incurr'd  the  Danger  of  Premunire.  3  Inll. 
121.  cites  25  H.  8.  coram  Rege,  the  Bilhop  of  Nor'vvich's  Cafe, 

10.  A  Writ  of  Premunire  upon  the  Statute  of  27  E.  3,  i'orfuingbejore 
the  Prc/ident  and  Council  in  Males  after  Jtidgnunt grven  in  the  Court  of 
Common  Pleas  in  an  Aftion  of  Debt  lor  42 1. 10  s.  in  Subveriione  Legum 
Antiquarum  &c.     3  Inil,  124.  cites  Trin.  21  Eliz.    C.  B.   Rot.  319. 
Beans  v.  Loyd. 

11.  T.  S.  'Parfon  of  N.  brought  a  Writ  of  Premunire  againft  R.  T^ 
upon  the  Statute  of  27  E,  3.  tor  fuing  in  the  Court  of  Audience  of  the 
Archbilhop  of  Canterbury,  to  impeach  a  Judgment  gimen  in  a  ^iiare  hn~ 
pedit  before  the  Jujlices  of  Jifftfe  in  the  County  of  Suliolk  &c.  The  De- 
fendant pleaded  Not  ^Guilty  &c.  3  Inft.  122.  cites  Trin.  £9  Eliz. 
C.  B.  Thomas  Stoughton's  Cafe. 

S.  R  Hawk.      j2.  An  Information  upon  the  Statute  27  E.  3.  againft  Sir  Anthony 

cap  ig'        Mildmay,  for  that  he  and  other  Connnifjioners  of  Hewers  did  imf  each  a 

S  16.  Judgment  in  the  King's  Bench.     He  purchaled  a  Pardon  from  the  King, 

and  pleaded  it.     3  Inft.  125,  cites  Hill.  12  Jac.  coram  Rege. 


^„,  „       (P.  a.  8)     *  Pardo!/.    The  fe'veral  Kinds  of  Pardons,  and 

*T'ic  Power  \  /  \  •  cc 

ofpai-.ioning  the  Diiierence. 

all  Oftcnccs 

is  an  hifcpa-  ^  -r    /• 

rabk  Incident  j.  A  LL  PardoHS  are  either  General  or  Special^  and  are  either  byAtl  of 
totheCrcwn  J^  Parliament,  (whereof  the  Court  in  fome  Cales  lliall  take  No- 
li"ei-^°tis  "ce)  or  by  Charter  of  the  King  (which  muft  always  be  pleaded).  And 
as  much  for  thefe  again  are  either  abfolute,  or  under  Condition,  Exception  or  Qua- 
the  Good  of  lification  ;  for  fome  of  thofe  Pardons  laft  mentioned  the  Party  may  have 
the  People  jj  tWrit  of  Allowance,  or  take  an  Averment  in  certain  Cafes  j  in 
Kin"  ftould  ot^hers  the  Party  may  be  aided  by  Averment  only,  where  no  Writ  of 
pardon,  as    Allowance  doth  lie.     3  Inft.  233. 

that  he  ^,     ,  .  _    - 

fliould  punilh.     Per  Holt  Ch.  J.  Show.  2S4.  Mich.  5W  &  M.  in  Cafe  of  The  kwg  v.  Parfon^. . 

2  L.  P.  R.  Zfif).  Tic.  Pardon,   cites  S  C 1  See  ^U.  a.  1 2). 

2.  A  Special  Pardon  fhall  be  taken /or  the  Jd'vantage  of  the  Kingy    be- 
cau!e  it  comes  at  the  Suit  of  the  Partv ;  but  a  General  Pardon  lluil    be 

taken 


Prerogative  of  the  King.  1 9 


taken  more  for  the  Benefit  of  'he  Party^  becaufc  this  proceeds  from  the 
Kin^  himfelf,  and  of  his  Special  Grice,  &  ex  mero  niotu.  Adjudged. 
Latch.  22.   in  Boliion's  Cafe. 

3.  Per  Jones  and  Codderidge  Jullices,  A  Coronation  Pardon  is  but  m 
Nature  ot  a  Particular  Pardon,  and  dillers  from  a  General  Pardon  in 
that,  where  no  certain  Time  is  fpecified  as  to  the  OHences,  it  lliall  not 
difcharge  any  previous  Offences  for  which  Judgment  has  been  given, 
but  a  general  Pardon  fhall.     Latch.  141.  Davy's  Qii'e. 

4.  A  Coronation  Pardon  is  no  Pardon  till  fued  out,  and.  is  not  like  a> 
General  Pardon.     Per  Doderidge  J.  L.ttch.  141.  Davy's  Cafe. 


(P.  a.  9)     Pardon.     In  nnhat  Cajes  not  77eceJJmy ;  ami  in 
what  grantabk  of  Courjc. 

I.  Stat.  Gloucefier,\^^  ACTS  that  in  Cafe  it  be  found  by  tbeCotwtry,  tha^  Where  a 

cap.  9.  Pj  a  Pcrfon  tried  for  the  Death  of  a  Man.,  did  it  in  his  ^tf^l^d^^'f'' 

Defence,  or  by  Mistortune,  then  by  the  Report  of' the  Jufiices  to  the  King.,  l^cath  ofa 
the  King  pall  take  him  to  his  Grace  if  ttpleafe  him.  Man,  and  it 

b^'  found  up- 
on tlie  Arraignment  that  it  was  done  Se  DefenJ.evdo,  upon  a  Cenificatc  of  tliis  Indiftment  and  Arraign- 
ment found  as  aforefaid,  the  Chancellor  in  this  Cafe  jh.ill  /;i-^nt  a  Purdon  to  the  Party  for  his  Life,  ii/ith- 

ctit  applying  to  the  King.     By  all  Judges  of  England.      fenk.  l^'S.  pi.  S-.  circs  19  H.  ;. -S.  P.    Hawk. 

PI.  (J.  -6.  cap.  29.  i.  15. S"P.  Kr.  Ciiurter  de  Pardon,  pl.65.  cites  4H.  7.  2. 

Serjeant  Hawkins  fays,  By  this  Starutcat  tirft  Sight  it  fecms  to  be  imply 'd,  that  it  is  left  to  the  Difcre- 
tionof  the  King,  whether  tie  will  grant  a  Pardon  in  fuch  Cafe,  ornot  And  agreeable  hereto  it  is  (aid  in 
four  feveral  Motes  in  Fitzhcrbert's  Abridgment  of  Ca'es  in  the  Time  of^.  5.  That  a  Perfon  found 
Guilty  of  Homicide  Sa  Dtfcndendo,  is  to  be  remitted  to  Prifon,  in  order  to  attend  the  King's  Grace. 
And  yet  in  two  other  Notes  in  the  very  fame  Year,  it  is  laid,  That  in  fuch  Cafe,  if  the  Prifoner  caufe 
the  Record  to  come  into  Chancery,  the  Chancellor  will  inuke  him  a  Charter  ot  Pardon  without  fpeak- 
ing  to  the  King  ;  and  this  (cems  to  be  ll'ttlcd  at  this  Day,  and  agreeable  to  thj  ancient  Common  Law, 
which  fhall  not  without  cxprcf.  Words  he  rellraincd  by  a  Stature  which  fcems  to  be  made  in  AiHrmancs 
ofit.  Ard  therefore  thcfe  V\'ords  in  the  Statute,  (ifit  fliall  plea'c  the  King,)  fhall  be  taken  to  be  fpoken 
only  cut  of  Reverence  to  him,  and  not  as  intendrd  ra  make  the  Riglit  ot  the  Subject  to  fuch  a  Par- 
don precarious.  And  the  Cafes  above-cited,  which  iccm  to  the  contrary,  may  be  reconciled  with  the 
Otl'crs,  by  intending  them  to  mean  only  the  Grant  of  the  Kii^g's  L\a'.don  to  a  Pcrfon  reprefented  to  him 
as  Guilty  of  Homicide  Se  Defendendo,  without  any  Certificate  of  the  Verdift  upon  Record  ;  for  none 
of  thofe  Cafes  make  any  Intention  of  fuch  Certificate,  as  the  others  do  ;  and  if  there  be  no  fuch  Certih- 
tate,  it  leems  plain  that  the  Grant  ofa  Pardon  is  a  mcer  Matter  of  Favour.  Aiid  it  has  b;en  adjudged, 
that  fuch  a  Pardon  is  as  neceliary  for  one  who  is  indiCred  only  of  Homicide  Se  Defendendo.  and  confef- 
fes  it,  as  for  one  who  is  found  Guilty  of  Honficide  Se  Defendendo,  on  an  Lidi6i:ment  of  Murder.  2 
Kav,k.  PLC.  581.  cap.  37.  S  2 S.  P.  2  Inlt  316'.  ^17. 

2.  "Where  fpecial  Faff,  amounting  to  JtiJlifiaUe  Homicide,  is  found  bv  H.P.  C.  3S. 
the  Jury,  the  Party  is  to  be  difiniis'd  without  being  obliged  to  pur- 
chale  any  Pardon  &c.     Hawk.  PI.  C.  70.  cap:  iS.  S.  3. 


(Ql  ^)     ^'^'7-''7^  Thing  y^^//A7/j-  by  a  Pardon. 
I*  T  JF  A.  be  bound  to  B.  in  an  Obligation  of  100  1.  and  after  B.  is  at-  See(S.  a) 

J_  taint  of  Felony,  jinti  nftcr  tijc  t^uin;  bp  Ind  letters  pateutd  ii'- '•  p 

parOOtt0  llim,  bp  tIjCtC  I©ar55j  fClUcet,  fardunavir,  remilit&  relaxa- Carteret.' 
vit  pradift.  13.  ledamque  pacis  i'u:£  qui);  ad  ipluni  Dorainum  Regem 
\erius  ipfum  pertinet  de  eo  quod  lecit  fUCl)  JfCiOiiy  $C»  &  Omnia  quie 
ad  Dominuni  Regem  pro  Felonia  prajd.  verlus  iplum  Kcgcni  tunc  per- 
tinet,  vel  pertinere  potuit  &c.  tirmamque  Paccin  eidem  \\.  inde  con- 
celiit:  ^3i«3  OOeS  tlOt  rCftOre  ?5.  tOtJjC  liliU  obligation  ;  fOC  It  UU15 

in  tljc  actual  liJoflcffiou  of  tijc  Uituj  lip  tijc  attainijci-  licaire  ©face 


20  rrcroi^ative  of  the  Kinc;. 


fottnti,  nun  ijcvc  mc  not  mv  i©orti0  of  tJ?rtint  or  EclTitutioii,  init 
onlpof  |:/ariioii.  -©nn.  2^  car,  05,  E.  mmm\J)reia  and  chap- 
i>ci,^  aDniugiO  upon  a  Demurrer,  3utratur  ipill.  n  Car,  Rot, 
921. 

z.  A.  was  bound  to  the  King  in  a  Recognizance  of  looo  1.  and  was 
attiuntcd  of  Trc.ifn>i ;  the  King  pardoned  him,  and  reiVored  to  him  all 
his  Goods  and  Chattels  which  he  forfeited  by  the  Attainder  ;  This 
Debt  to  the  King  remains  ;  lor  it  was  only  fuipended  by  the  Delin- 
quency of  A.  By  all  the  Judges  of  England.  Jcnk.  209.  pi.  43.  circs 
1  Mar.D.  124. 

3.  In  Debt  on  Bond  Defendant  pleads,  that  after  the  making  it  the 
Plaintiff  was  attainted  for  Coining,  which  the  Piaintiif  conlelles,  and 
fays  that  altcrwards  the  Queen  did  by  Pardon  rellore  unto  him  0772nia  Eo- 
va  &  Cat  alia  ftia  j  and  on  Demurrer  the  Qiieftion  was,  Whether  Debts 
by  Specialty  were  included  in  thofe  Words?  Goldsb.  114.  Adams  v. 
Oglethorpe. 
Lev.  8.  S.C.      4.  A,  became  Felo  de  fe  in  the  Year  1648.  alterwards  by  the  Aft  of 

S. P.      General    Pardon  all    Felonies  were    patdoned,    excepting   Murder, 

^q^""^^','?  and  then  upon  an  Inquilition  it  was  returned,  that  A.  had  a  T'erm 
S.'fy—Binmfor  J'cars  of  the  yearly  Value  of  100  J.  It  was  adjudged  that  this 
Scire  Facias 'was  pardoned  by  the  General  Pardon  ;  for  nothing  js  vejied  in  the 
bv  an  Ad-  Kt:ig  till  Itiqiiijition  found ;  and  no  Inquilition  was  found  till  after  the 
mmil^rator,  General  Pardon,  and  fo  the  Term  for  Years  was  gone  before  the  Inqui- 
dant  pleaded  fition  found.     Sid.  150.  15  Car,  2.  The  King  v,  \\'arde. 

that  the  lu- 

teftate  \n  the  Yeaf  16  5  5  became  a  Felo  de  fe  ;  and  this  was  found  by  an  Inquilition  before  the  General 
Aft  of  Pardon  ;  Plaintiff  demurs.  Adjudged  that  this  Debt  being  wfied  in  the  King  before  the  General  F.ir- 
det!,    was  not  pardoned  thereby,    and  could   not    pals   without  (Fords  of  Refiitution.     Per  Cur.   Sid. 

j68.  Mich.  15  Car.  2,  B.  R.  Tombesv   Etherington. Saund.  561.  S.C. z  L.  P.  K.  269. 

Tit.  Pardon,  tivcs  S.  C.  —  Lev.  1 20.  S.  C.  fays  it  was  rcfolvcd  that  the  Debt  was  extinguijhed  in  the 
Hands  of  the  Debtor  by  the  Claulc  of  the  Aft,  which  pardons  and  releafes  nil  Caufei,  I'hings,  ^ii.irrelj. 
Stilts,  Jiicicm'r.ts  avd  Executions;  which  is  to  be  taken  generally,  s.s  wcW  Judgments  And  Executions  fof 
Dehts  of  tie  King,  as  for  Offences;  and  as  well  for  Debts  due  to  the  King  by  JJfignment  or  Forfeiture,  as 
Debtsdue  to  him  criminally. S.  P.  z  Hawk.  PIC.  596.  cap.  57.  S.  55. 

5.  12  Car.  2:  pardoned^//  Deks,  Judgments  ^c.  An  Inquifition 
found  one  Felo  de  /t-,  who  had  a  Debt  due  by  Judgment  to  him.  This  is 
pardoned  by  the  faid  General  Pardon.  Sid.  264.  Trin.  17  Car.  2.  B.  R.. 
Lock  V.  Etherington. 

6.  The  Word  (^Pardon')  includes  in  it  felf  the  Word  (Rekafe)  and  fo 
are  i  H.  7.  10.  11  H.  7,  11.  For  all,  that  is  not  v/ithin  the  Exception,  is 
by  the  general  Words  pardon'd  and  gone;  nnd  ihe  Cafe  of  Sir  (S>0Org0 
'BiniOll  of  late  Time  in  the  Exchequer,  cioes  not  oppofe  iti  for  there 
Sir  G.  B.  beiug  indebted  to  the  King,  and  J.  S.  being  indebted  to  him,  Procefs 
out  of  the  Exchequer  Chamber  illued  againft  J.  S.  and  his  Goods  feiled 
for  the  King,  and  then  came  the  A£l  of  <)blivion  i  and  adjudged  that 
the  Debt  of  J  S.  remained,  becaufe  he  was  Debtor  to  Sir  G.  B.  and  not 
to  the  King;  but  if  he  had  been  an  immediate  Debtor  to  the  King,  the 
Debt  lliould  be  gone,  per  Tvvifden  and  Keeling  J.  againll  Windham 
J.  upon  Conference  with  the  Barons  of  the  Exchequer  and  other  Jullices. 
Sid.  265.  Trin.  17  Car.  2.  B.  R.  in  Cafeof  Lock  v.  Etherington. 

7.  'I"he  King  prefented  to  a  Benefice  which  had  become  void  by  aSi- 
moniacal  Agreement,  and  afterwards  by  a  General  Pardon  reltores  all 
Goods  and  Chattels  forfeited  jby  Reafon  of  any  Offence  done.  Per  Cur. 
The  King's  Prefentee  has  a  good  Title  notwithftanding  the  Pardon;  for 
here  was  an  Intereft  vetted  in  the  King,  ^\•hich  the  Pardon  cannot  di- 
vert i  and  the  Prefentation  fliall  not  pafs  by  the  Words  (Goods  and 
Chattels)  which  are  Things  of  a  lower  Nacure,and  all  in  the  Perfonalty, 
as  was  fiid.   Arg.  2  Mod.  52.  Trin.  27  Car.  2.  The  King  v.  Turvil. 

8.  A  Pardon  of  all  Forfeitures  will  not  di-vejl  an  Intere/l  vefied  in  ths 
King.  Per  Cur.  3  Mod.  100.  Pafch.  2  Jao.  2,  B.  R.  The  King  v. 
Saloway. 


Prerogative  of  the  Kina:.  21 


.J^C^LX»V,      V^X     ^i.W      ^v.x.^. 


(Q^a.  2)     Pardon  of  one,  in  what  Caics  it   fnall   be    a^"^^'=^ 

Pardon  of  another. 


■P 


ARDON  of  the  King  granted  to  an  Approver  [Jjall  difcharge  the  Covtra  of 
'ppelke.  Br.  Charters  de  Pardon,  pi.  62.  cites  47  E,  3.  5.  ^/"'l'  f_ 

there  he  may  be  arraigned  upon  the  Approvement.     Ibid. 


2.  If  Twefjty  are  indited  of  Fclo/ij,  and  after  the  Kifig  pardons  the  one, 
ivitbctit  making  Afeiitio/i  vf  the  others.^  this  is  good  ;  Ibr  Felony  is  ftv.ral^ 
and  not  joint,  and  it  is  as  ieveral  Indiftmentsagainll  every  one  by  hiin- 
felf,   and  not  joint.     Br.  Cliarters  de  Pardon,  pi  45.  cites  6  E.  4.  5. 

3.  If  two  are  jfoint-Deltors  to  the  King,  and  he  pardons  the  one,    this  '''■  ^-  ^°';  '^ 
fliallnotfervc  the  other  i  quaere.     Br.  Patents,  pi.  90.  cites  2  R.  3.  4.    '^'■''"j'= '"- 

J-  T   c      7  3     f      tended  to  be 

of  a  Sole  Debt  due  by  him  only,  as  it  was  faid  ;  therefore  quure.     Br.  Charters  de  Pardon,  pi.  57.  cites 

S.  C. So  where  fxo  me  bcm:d  to  the  Kin^,  nnd  hetb  in  toto,  and  the  K/ag  rchafes  to  the  one,    the  other 

fliall  not  take  Advantage.     Br  Charters  de  Pardon,  pi.  4.  cites  54  H.  6.  5.  &  50.    55H.  (J.  i.  25.- 

S.  P.  J-Jr.  Ibid.  pi.  96   cires  i  H,  -.  10. Contra,  it  feems,  of  John  Bondhy  two,  and  he  releafcs  to  the 

one.     Per  Afliton  ;  but  per  Da;iby  and  Prifot,  it  fliall  ferve  both,  where  they  are  bound  both  in  toto. 

Brooke  mskes  a  Qiiasrc.     Br.  Charters  de  Pardon,  pi  4.  cites  34  H.  6.  5.  &  50.  55  H.  6.   i.  25. 

Jii- it  was  laid  there  that  in  the  Exchequer,  If  ttvo  are  Jicowitatits,  and  the  King  rcleafes  to  one,  yet 
thofe  of  the  Exchequer  will  have  the  whole  Account  of  the  other.     Ibid. 

4.  If  a  Man  and  his  Sureties  are  hound  to  p.-ij  Fine  to  the  King^  or  20  /.  It  is  agreed, 
ly  a  fertatn  Day,  and  do  not  pay  at  the  Day,    and  the  King  pardons  J'^^^^^^ 
the  Principal,  this  li.ali  difcharge  the  Sureties.  }^x.  Charters  de  Pardon,  ^^f,)^  to  the 
pi.  36.  cites  I  K.  7.  to.  _  _        _  King  rtj 

5.  Contra  of  Sureties  cj  the  Peace;  for  there  nothing  is  due  till  the '^'"■f';'  for 
Bond  is  forfeited  ;  tor  there  it  the  King  pardons  the  Principal  after  For-  another /cr 
feiture,  the  Sureties  are  difcharged.  Contra  of  Pardon  If  ore  the  Forfei-  If  ^cemin 
ture.     Ibid.  _  fine,  or 

6.  And  where  a  Man  is  hound,  that  A.  Sheriff  of  N. pall  pay  his  Prefers  other  Debt 
ftich  a  Day,  Releafe  of  the  King  to  the  Sherift  after  the  Day  does  not  f,"^  '"  *'-^ 
acquit  the  Surety  of  the  Breach.     Contra  of  Pardon  before  the  Detault.  Pa'i^onofdie 
Per  Townlend.     Br.  Charters  de  Pardon,  pi.  36.  cites  i  H.  7.  10.  Principal  isa 

Difcharge  of 
the  Surety  alfo.  But  it  feems  to  have  been  holden  as  a  general  Rule,  That  <ahere  a  Man  is  bound  as 
Surety  for  another,  for  the  Perfcrmavce  of  n  future  ^'H,  the  Difcharge  cf  the  Prhicipal  before  rhe  I'lme  of 
FerUrmar.ce,  will  rot  difcharge  the  Surety,  becanfe  nothing  was  due  to  the  King  at  the  Time  of  fuch 
Difcharge.  But  it  feems  ex/rfw/f/y  mce;  neither  do  the  Cafes  brought  for  the  Proof  cf  it  fcem  any 
Way  to  come  up  to  it  ;  for  as  to  the  firft  of  them,  viz.  That  of  the  King's  Releafe  of  a  Recognizance 
of  the  Peace  to  the  Principal  before  it  is  foifeitcd,  which  Avail  not  difcharge  the  Sureties,  it  may  be  an- 
fwered.  That  it  will  rot  ib  much  as  dilchaige  the  Principal.  And  as  to  another  Cafe  cited  for  this 
Purpofe,  viz.  That  of  the  Kirg's  pardoning  J.  N.  the  Building  of  fuch  a  Houfe,  for  his  Building 
whereof  J.  S.  is  bound  to  the  King,  which  fliall  be  no  Difcharge  to  J.  S.  it  may  be  anfwered,  Thar 
as  this  Cafe  is  put,  J.  N.  doth  not  leem  to  be  bound  at  all,  but  only  ].S.  who  therefore  does  notfeem 
to  come  under  the  Jiotion  of  a  Surety,  but  of  a  Principal.     2  Hawk.  PI.  G.  5S7.  cap.  37.  S.  23. 

7.  hx\  Alienation  ^vithov.t  "Licence  to  A.    Tenant /or  Life,  Remainder  Entvihzre. 
to  B.  in  Fee  ;  a  Pardon  of  Alienation  to  A.  will   not  ferve  B.     Tenk.  Alienation  is 

-,«-„1-._  ''to  t-ivo  foin- 

222.    pi.  77.  ^  J. 

r       '  '  tenants  in 

Fee,  a  Par- 
don of  all  Alienations  to  one  will  (erve  the  other;  for  they  make  but  one  Tenant.     Jenk.  222.  pi.  77. 

cites  14  H.  6.  26. This  was  as  the  Law  flood  before  the  u  Car,  2.  cap.  24   which  took  away 

Fines  for  Alienations 


(Q.a.3) 


2  2  PrcToaativc  of  the  Kinu'. 


Sec  CO. a.;)  (Q^  a.  3)     Pardon  of  Pr'/mipnl,  in  what  Cafes  It  pardons 

the  yiccejJiDy. 

2  L.  P  R.  I  A  "WAS  indi£ted  as  AccclHiry  to  a  Burglary  committed  by  one 
I'iirdon'dtes  J^\~*  ^^^^  ^'^*^  htQn  tried  and  attainted^  but  prvi: tired  his  Pardon^ 
S.'c.  '  which  had  been  allo-ded ;  and  now  A.  prayed  that  Ihe  might  be  dii- 
char>;ed  :  But  relblved  that  ilie  miifi  fkad  to  the  Indiclment;  for  tho'j  it" 
the  Principal  ha\e  cither  liis  Clergy,  or  be  acquitted,  or  obtain  hi3 
Pardon  belore  Judgment,  the  Acceii'ary  lliall  not  be  queltioned  i  vet//' 
the  Principal  be  attainted  the  yiccejf'ary  miijl  anfwcr,  tho'  the  Principal  be 
pardoned.     Raym.  477.  Mich.  34  Car.  2.  Anon. 

2.  It  leems  generally  agreed.  That  notwithftanding  all  Felonies  are 
feveral,  and  conlequentiv  a  Pardon  of  one  Man  cannot  be  a  dire6t  Dill 
charge  of  another,  yet  in  fome  Cafes  the  Felony  of  one  Man  may  be  lb 
lar  dependent  upon  th.it  of  another,  that  the  Pardon  of  one  will  by  a 
neceHary  Confcquence  enure  to  the  Benefit  of  the  other ;  As  where  the 
Principal  pleaded  his  Pardon,  and  was  nlloii't'd  it  at  Common  Law  before 
his  Attainder j  or  where  he  pleads,  and  is  allowed  it  at  this  Day  before 
his  Convitlion  ;  in  which  Cale  it  feems  that  the  Acceliary  may  by  a  ne- 
celfary  Confequence  take  Benefit  of  it,  becaufe  he  cannot  be  arraigned 
till  alter  the  Principal  is  convicted.     2  Hawk.  PI.  C.  387.  cap.  37.  S.  22. 


s«(.^a)     (R.  a)     The  Pardon  of  what  Things  Incluiive,  fliall  be 

Pardon  of  others. 


(U.  a 


I*  T\  8  €U>  249. 83*  Brereton.  05?.nar  !}cli3  ill  Capste.  bfinn;  in 
J^-  Icflfc  for  i>cai*0,  aiiB  Ecnty  rclcriici!  ticfccnticn  to  tije  Drir, 

iDljO  CiltCren  nilQ  took  tijC  McntSj  an5   before  OfHce  fbund,   General 
Pardon  Of  5  €h  tUMK  EtUD  DUCijarWB  all  Intruiions  and  Entries,  nntJ 

h))  tIjc  Court  of  iJBartiss  Saunocr^  aito  Dier,  confequentiv  Mefi^e  if- 
fues  and  Liveries  atc  rsircijiirict?,  aitB  a  iL^reccBcnt  CttCt?  CtttOXXi-- 
mgl}),  bp  tIjC  ©pinion  of  s  in  tljc  fiime  Cafc;  luitvOc  laats  Wi^s 
not  in  Lcafe.  T5ut  tip  2  cijc  Citiccn  tiiap  inU  Sftion  of  accoutit 
aiiamlf  X^rcrcton  as  ijcr  15mI\W  or  Rctcmtr,  anB  alid  an  SHttion 
of  Debt  agatiift  tIjc  Icflcc^,  uilja  botlj  arc  c^ccyteu  out  of  tl)t  ii\ic= 
tionv 
2.  3  i),  7, 3,  ii,  Dtificj)  ftemfi!  to  bt  Centra  ;  for  Ije  faiQ  t!jat 

if  Partlbn  ht  niatie  to  the  Heir  of  an  Intruder,  of  the  Intrulion.   OlTiCg 
♦  Orig  is      ffttmji  fjffPf  {]j^^j(  ftr^£;  ty-  £^|i^n;  foL*  all  the  Profits  before    [hilt]    HUt 

3*  16  e.  4*  ucim  in  ^t.  prcrogatfjc  40*  I'?*  tljc  partson  ought 

to  be  as  well  of  the  Profits  as  ol  the  Entry,   Cr  Gtlj^rUiUi^  afCCr  0ttlCC 

founti,  tijc  £\iun;  fijaU  be  anfiucrctJ  of  tlje  proiit0» 
4.  @t.  prcrcgi'^ttiJC  40,  ii.  after  Deatij  of  tijc  ?.ncc(?or  tlje  pm 

fntCr.Cj  t!]C  t\inff  pai'tiCnS  Ijim  all    Entries  with   the  Profits  belore  01- 
fice  found  ;  tljl-j  parHOllS  LlUCtp,  au?  is  Ipecial  Livery. 

5.  It  the  King  pardons  Ourlawry,  'vvhich  is  promulged  upon  Indifl- 
r-ient  of  Irefpafs  at  the  Suit  of  the  Kiiig,  and  Vvh.itibever  belongs  to  the 
King,  vet  he  liiall  make  Fine  and  R.uifjmi  lor  Fine  and  Ranfcm  are  not 
farflvni'd  tinlejs  ij  fpacal  ]i'ords.     Br.  Cliarters  de   Pardon,  pi.  30.    cites 

22  Air.  47. 

6.  Felony  is  fiid  to  be  included  in  High  Treafiw,  and  confeqnently 
a  Pardon  oj  Fclany  dildu'.rges  an  Indifliitent  oj  High  Treajln^  it  it  want  tlii 
\\  o'A  Prcditiorii.     Hawk  PLC.  65.  cup.  2j.  S.  2. 

(S.a)  JVbat 


PrcToa a tivc  of  the  Khvj,  22 


0 


See  (Pa  S^ 

(S.  a)     What  fnall  bs   [fuel  to  Lv]   pardoned    [/^'  ^  Cc-C«;')Cf  .0 

f^eral    Pardo;/.!  6 -Prohibi- 

tion (vS.) 

I*  T  JT  a  93illt  upon  a  ©tut  in  the  EcdeliaiUcal  Court  be  condemned  C.-o  E.  io3. 
X  in  Guts  to  riJC  l^iirtP,  and  thereupon  is   P-xcomnniniLiucd,   ailTl  ^i  ^      TT^ 

nftcu  conic0  tijc  ©cncral  li3arrion  of  21  :jac,  auQ  r.ftci-  a  sigmiiciivit  by  kJi,c<!?' 

ISj   UUlCf,  aiVCI  IjC  taken  upon  a  Capias  de  Ex,;orn:iiunicaro  capiendo,  Cud  " 

nnti  tijis  imirnco  m  Id  -   - 

Scire  Jacias  Cimn^t  ti)C 

plcnD  tlje  i^avoon  In  1 

lameD,  fortijcContc ,    , 

tljo'  not  tiie  Colls,  antJ  tljc  tj^iirti'  cuuljt  to 

to  pav  thtr  Colts.     13,  17  Car,  liS*  E.  tlCtUlCCii  Codriuim  and  Rodman.  >^-S'"'--;'i  '^^ 

aoiisgcn  pci*  Giinani,  aim  tljcuc  citco  tnrjk^zes  cfi  m  ':5.  E»  d1;£  '""" 


cndiiiit 


^i9iiij»  2  Cai%  aojtrcigco.  pleads  ti,.;t 

the  Plaint;? 
■was  Exconwiinic.Ucd  ;  to  which  the  Pliintift  in  Ermr  pleads  the  General  Pardon.  And  the  Court  (as  ic 
feems)  held,  that  by  it  the  Excew;t;ioiii\ztio!i  ivjs  ciifharged,  for  they  awarded  a  Relpondeas  Ouller      3 

Rep.  6S  a  Mich.  6   |ac.  Trollop's  Call:. — It  was  doubted  by  the  2  Cli.  [ulHces  whether  an  Exconimuni- 
.-o.i„„  .„;.»i,.   u„  .^',l:\ ^.A  k.,  ,u.,   Ti-i^™'.,  P,...j„r.     o.,^  »i,o  Pi.,;„.;ii  ..„a 1  >„  1,;.  t..;^     ..  ■  1  «  1  ^ 


2.  If  a  Man  be  atfahited  of  Felony  by  0/itlazvry  or  Verdi  ff^  and  the  King  S.  P.  iHawk. 
p.rrdons  him  ill!  Filonu-s^  this  ihali   not  ferve.     Per  Strange  i  lor  it  ihall  ^''- ^- 5S5. 
be  intended  that  the  King  had  not  Conufance,   and  was  deceived  in  his  ^^li^l'p^'  ^' 
Grant.     Br.  Patents,  pi.  15.  cites  8  H.  6.  19.  L-it  i^i.__ 

.  .  _  .  S.  p.  But  the 

particular  Crime  for  which  lie  is  conviclred  oni;iit  to  be  particularly  mentioned.     2  L.  P.  R.  2-0.     Tit. 

Pardon. So  a  General  Pardon  of  inl!  Robberies  is  not  good,   where  there  is  a  Coniiciion  by  f'erdicl  of  one 

in  particul.ir,    Sid.   .150.  Mich.  21  Car.  2    B  R.  The  iCinp;  v.  M.iddocks. A  General  Pardon  of 

all  Felonies  does  not  extend  to  Pii-.icy.     Hawk.  PI.  C.  99.  cap.  57.  S  6. -S.  P.  2  Hawk.  PI.  C.   -84. 

cap.  5  - .  S.  r  I 

Serjjant  Hawkins  fay.'!,  It  has  been  holden  that /i?;r;>?!f/)' a  Pardon  of  all  FcAwV/ /wWcrf  all  ^reafoi^s, 
as  well  as  Felonies  -whatlbever  ;  and  it  fecms  to  bi  tak.'n  for  granted  in  ni  inv  BoiiI:s,  that  a  Pardon  of  alt 
Fehttirs  in  general,  witliout  detcribirg  any  one  in  particular,  w.iy,evenat  this  Uay(ifthe  Party  be  nei- 
ther attainted  nor  indicted)  be  pleaded  in  Bar  of  at:)  Felo>:y  wii.itfoevcr,  coming  witliin  thf  General  Li- 
mitations thereof,  except  Murder  or  Rape  ;  and  the  Rcatbn  why  it  cannot  alll/  be  pleaded  to  Murder  or 
Rape  is,  becau.re  the  Statute  of  1  3  ii.  2.  recjuires  an  exprefi  Mention  of  tle>!!.  But  the  Serjeant  fays  he 
finds  this  Point  no  where  folemnly  debated,  neitlier  does  it  fecm  eafy  to  reconcile  it  with  the  "-eneral 
Rules  concerning  Pardons,  a;;reed  to  be  good  in  other  Ca(i;s  ;  for  if  a  F,.dony  cannot  be  well  pardon'J 
■where  it  inay  be  reaCoaably  intended  tii.it  the  King  when  he  granted  the  Pardon  was  not  fully  apijris'J 
of  the  State  of  the  Cafe,  much  lels  does  it  feem  reafonabic  tliat  it  fliould  be  pardoned,  where'it  may  be 
well  intended  that  he  w-as  not  anpris'd  of  it  at  all.  And  if  a  Felony  w  hereof  a  Perfon  is  attainted  can- 
not be  well  pardoned,  even  tho'  it  appear  that  the  King  was  informed  oFall  the  Circumlfances  of  the 
Fact,  unlcfs  it  alfo  appe.ir  that  he  was  informed  of  the  Attainder,  much  lefs  docs  it  Iceni  rcafonabie  that 
a  Felociy  fliould  be  well  paidon'd,  where  it  dues  not  appear  thar  he  knew  any  Thing  of  it  ;  for  by  this 
Means,  where  the  King  m  Truth  intends  only  to  pardon  one  Felony,  he  may  by  Confeauence  pardon 
the  grcatell  Number  of^  the  nioif  heinous  Crimes.  And  for  thcle  Rcalons  he  fuppofes  Ger.eral  Pardon-; 
are  commonly  made  by  A'.'t  of  Parliament.  As  to  the  Precedents  of  fuch  General  Paidons  in  Ralfal's 
Entries,  it  may  be  anfwccd.  That  their  Authority  leem  to  be  of  lei's  Weight,  when  compared  with 
thofc  many  Precedents  of  Pardons  in  tlie  Regiller,  every  one  of  which  particularly  delcribes  the  (..'iTencc 
which  is  pardo"ed,  and  even  tljo'c  wiii;h  relate  to  Homicide  by  Lunaticks  or  Infants,  or  in  Self-de- 
fence &c.  except  only  one  which  pardons  Elcapcs,  but  cxprefsly  excepts  all  voluntary  ones.  And 
therefore  where  the  Books  ("jeuk  of  Pardons  of  all  Felonies  in  general  as  good,  perhaps  it  miy  be  rea- 
fonabic f  )r  the  molt  Part  to  intend  that  they  either  fpeak  of  a  P.irdon  by  P.irliament,  or  tli.it  they  fu-i- 
pole  that  the  particular  Criir.e  is  mentioned  in  tlie  P.:rdon,  tho'  tiiey  do  not  e:;prel's  ic  1  H.iv,  k  Pi.  C. 
gSj.  cap.  97.  S.  y. 

3.  .\  Pardon  granted  at  the  Suit  of  the  Party,  fljall  le  taken  more  firon^  g .  p  ..,,  ^ 
j\:r  ;-/■£'  A'//7^,  a>Hi  more  firong  ng^injl  the  Party,  bat  a  General  Pardon y  cr  pi,  2^  cites' 
a  Pardon  iirantcd  ex  nicro  AIoik^   IhaH  be  ta.ken  ir.ore  itrony;  a^ainll  th"ei>-C^^^ 

King, 


2^  Prerogative  of  the  King-. 


Lilt.  2 i.S.  p.  King,  and  more  itrong  for  the  BencHc  of  the  Party  i  for  it  is  intended 
:idjud-id  there  that  the  King  has  Knowledge  of  the  Matter :  Contra  where  it 
(^^(■(,  comcj  by  Suit  ot  the  Party,   or  by  Sunniie.     Br.   Charters  de  Pardon^ 

pi.  25.  cites  37  H.  6.  21. 
Bi".  Charter  4.  It'ic  he  found  l?y  Ojice^  that  the  'Tenant  of  the  King  died  fcifed^  and 
dc  Paidon,  jj„^^^  j,^^  jj^^.^  intruded^  and  alter  Intriijions  arc  'pardoned by  Parliament^  yet 
^Q_^Jl  the  Heir  pall  render  the  Mefnt  Pro/its,  but  Ihall  not  be  punilhed  tor  the 
Jiiit  where  Intrufion,  for  this  is  pardoned,  but  not  the  Profits  ;  and  the  Elcheator 
Intruiions     i]iall  bc  charged  of  the  Prolits  where  the  Oilice  is  recorded.     Br.  Intru- 

arc  pardou'd  ^-  ^  ^I.   cites  33  H.  8. 

by  Parha-  '   '  •'•' 

znenx  before  Office  Ui:rd,  i:jhere  the  Heir  hits  eutercH,   there  the  Pmfit<:,  the  Entry,  and  Livery  and  all  aro 

pardoned  ;  and  there,  tho"  the  OSce  comes  after,  which  finds  tlie  I-nrufion  of  tlie  Heir,  yet  atl  is  gone 

by  the  Pardon.     Br.   Intrufion,  pi.  21.  cites  59  H   S. Br.  Charters  de  Pardon,  pi.  :i.  cites  5.  C-^^^ — . 

Br. Intrufion,  pi.  \6.  cites  5  H.  7.  9.  S.P. Br.  Olfice  devaat,   pi.  31.  cite,sS.C. Br.  Livtry,  pi. 

65.  i>.  P. S.P.    Dy.  241.  adjudged. S.P  adjudged  Ley  4S.  fcaintlpcfr'sCarc,  where  Lands 

were  held  in  Capite,  and  were  devifed  from  the  right  Heir  to  B  tlie  nort  Heir,  during  whole  Minority 
J.  S.  entered  and  received  the  Profits  ;  and  held,  th.it  tho' //.-/my/cKj  were  excepted  exprelsly  in  tlie 
Pardon,  yet  this  was  within  the  Pardon,  becaufe  t:o  Office  'xas  foiihd. 

If  there  be  j-.  A.  Tenant  by  Knight  Service  in  Capire  dies,  \ns  Heir  of  fall  Jge; 
^"d'"'^''™"'-''  ^^"^  cf'ters  and  takes  the  Profits  before  any  Office  Ibund.  5  Eliz.  an  Jci  of 
fourd  of  it'^  Parliament  pardons  all  Entries  and  Intruftons  :  This  difcharges  the  Mefne 
a  Pardon  '  Illues  taken,  and  juftifies  the  Entry,  and  amounts  to  a  Livery.  The  Entry 
after  the  before  the  OiHce  being  pardoned^  all  the  Coufcquences  of  it  are  pardoned  •■,  Li- 
iaid  Office  ygj.y  jg  ^i^^Q_  [Q  the  Heir  to  juitify  his  Entry  ;  and  an  Office  ibund  after- 
parcionthe  Wards  comes  too  late.  By  the  Court  of  Wards,  and  all  the  Judges  AHilt- 
Intrufion  ants  there.  Jenk.  234.  pi.  9.  cites  8  Eliz.  D.  249. 
and   the 

Mefne  Profits,  or  cl'e  it  will  not  difchargethem;  for  they  are  veiled  in  the  King,  ani  being  veded, 
they  cannot  be  difcliarj^ed  witliout  being  mentioned  :  In  the  principal  Cafe  they  were  never  vell.-d,  for 
ihc  faiu  Pardon  before  theO.fice  found  prevented  the  veiling  of  them.     Jenk.  234.  pi.  9. 

So  a  General  6.  Jurors  eat  and  drank  at  their  own  Cofis  before  Verdift,  and  after  their 
Pardon  of  Departure  from  the  Ixir  5  and  this  was  certified  upon  the  Poltea  :  And  it 
ftved  Tu?  w^s  held  that  the  Jurors  weie  finable  3  but  it  was  held  clearly,  that  ft 
vors,  who  was  pardoned  by  the  General  Pardon.  ■  iMo.  599.  pi.  825.  Hill.  37  Eliz. 
h2.Aeat  at     Hall  V.  Vaughan. 

ihePUwtiS's  ° 

Charge,  from  Cenfure.    Freem.  Rep.  79.  Pafch.  1673.  C.  B.  Bellamy  v.  Player. 

7.  If  one  pleads  afalfe  Plea,  for  which  he  is  fmeable,  and  after  and  be- 
fore the  Judgment  there  comes  a  General  Pardon,  the  Judgment  fhall  be 
that  he  is  not  in  Mifericordia  quia  Pardonatur.  Mo.  599.  pi.  825.  Hill. 
37  Eliz.   Hall  V.  Vaughan. 

8.  A  Writ  of  Entry  was  brought,  and  before  Judgment  came  the  Ge- 
neral Pardon  Anno  35  Eliz.  by  which  all  Fines,  Aincyciameats,  Contempts 
Sc.  were  pardoned  3  after  which  there  was  Judgment  for  the  Plaintilf, 
but  the  Entry  was,  Sed  nun  Afrfcricordia  quia  pardonatur.  Upon  Error 
brought,  it  was  held  a  good  Judgment,  and  that  by  the  Pardon  of  the 
original  7ort  the  Amerciament  was  difcharged  3  for  the  Caufe  of  the 
Amerciament  was  the  Tort  and  Contempt  of  the  Tenant,  in  not  rendring 
the  Land  to  the  Tenant,  according  to  the  King's  Writ  3  and  tho'  the 
Judgment  and  Amerciament  were  fubfequent  to  the  Pardon,  yet  the  ori- 
ginal Caufe  of  Action  being  pardoned,  of  Confequencc  the  Amerciament 
is  pardoned  likewife.  Adjudged.  5  Rep.  49.  Mich.  39  &  40  Eliz.  B.R. 
Vaughan's  Cal'e. 

9    Sherids  cannot  collecl  Fines  or  I/fics  after  a  General  Pardon  3  and 

for  fo  doing  an  Under-Shcrilf  was  punilhed  in  the  Star-Chamber.     Crodb. 

178.  Marriot's  Cafe. 

ThcTref-         10.  Trefpafs  was  brought  the  2.$th  September  i  Jac.  with  a  Continuando 

V^fs  ^.-aa  CM  ^Q  f/ji;  2'jth  of  NovemberntieT  :  Upon  Not  Guiltv  pleaded  bv  the  Dcfen- 

to  be  done  '       ■'  '  '  <^,-x\t 


Prerogative  of  the  King.  25 


dant,  the  Plaiiitilf  had  Judgment :  The  judgment  was  not,  Quod  Capia-  ^'ft  .I"'^f- 
turi  lor  a  General  Partiof!  pardoned  all  Of/enus  until  24  .September  i  Jac.  t^"yindo^"c" 
and  upon  this,  the  F"orce,  which  gives  a  Fine  to  the  king,  was  pardoned,  xhe  Entry' 
Judged  and  Ariirmed  in  Error.  Jenk.  303.  pi.  76.  cites  1'.  6  Jac.  Strick-  was,  viz,. 
land  V.  Thorp.  i^J.'"'''  '^^. 

^  t'lne,  quia 

rardonatur.  It  was  iiififtcd  that  only  Part  of  the  Ticf^'ar',  -Ras  pardoned,  vi/..  from  21ft  Jtme  to  25th 
Scf  tcniber,  but  that  tlie  Trclpafs  from  the  25th  to  tlic  6th  Kovcnibcr,  is  not  pardoned,  and  therefore  as 
toth.it  there  ought  to  have  been  a  C^apiatur:  But  the  Court  held  the  [udgmcnt  well  enter'd  ;  for  the  nrft 
Entry  in  a  Trelpals  being  only  Vi  &  Armis,  the  Pardon  of  this  is  a  Pardon  of  all  depending  upon  it  ;  for 
the  ffr/?  Entr'j  only  made  tl<e  Treffpfs  ;  belides,  it  appears  by  the  Declaration,  that  the  Continuance  ot  the 
Trelpafs  is  not  laid  in  the  Entry,  but  only  ijuoail  i)epalhirationem  &  Confumptionem  Hcrbte,  which  is 

added  only  to  incrcafc  Damaj^es  to  the  Party,  but  not  the  Fine  to  the  King.     Yelv   12')    S.  C. Cro. 

J.  20-.  S,  C. Brownl.  211.  S.  C. 

11.  A,  was  induced  upon  the  Statute  of  Forcible  Entry^  and  Rejfitiition 
ivas  awarded.  A.  travers'd  it,  and  a  Venire  tacias  was  awarded,  and 
Dijlrcfs  with  the  Niji  Prins ;  alter  which  came  a  General  Pardon,  which 
pardon'd  the  Force :  The  laid  Trial  was  Itay'd,  by  the  Opinion  of  all 
the  Judges  of  England  3  lor  the  King  will  not  proceed  againji  his  Pardon. 
Jenk.  312.  pi.  98.  cites  i  Cro.  144. 

12.  A.  exhibited  a //7.(7/y//j  iJ/7/ againll  B.  in  the  Star-Chamber ;  after 
-which  came  the  General  Pardon  ot  the  2ilt  Jac.  and  then  lor  Want  of 
Caule  being  lliewn,  it  was  taken  off  the  File,  and  the  Plaintiff  fined 
100  1.  to  the  King,  and  100  1.  to  B.  and  it  was  relblved  that  the  Fine 
and  Colls  are  dilcharged,  upon  the  Authority  of  Hurt  79.  Beverley's 
Cafe,  which  did  not  at  all  differ  from  the  prefent,  tho'  a  Day  was  liere 
given  to  pew  Caiife;  for  the  Plaintiff  hath  not  any  Means  to  plead 
the  Pardon.  Cro.  Car.  68.  Pafch.  3  Car.  by  all  the  Judges  at  Ser- 
jeant's-Inn. 

13.  If  Cofis  in  the  Ecclefiaftical  Court  are  not  taxed .^  a  General  Par-  Lat.  159. 
don  difcharges  them.     Lat.  190.  Palmer  v.  V\'arncr.  S.P.adjudg'd. 

- — \x  awarded 
before  the  Pardon,  but  not  tax'd'vCA  after  the  Pardon,  they  are  not  difcharged.     Cro.  Car.  9.  Dr.  Bric- 

kenden's  Cafe. Cofts  were   ta.^ed  tifon  an  Jttachvetit  againft  an  Attorney  for  Male- practice,  by 

Way  of  Jmends  to  the  Party  grieved,  and  tlien  came  out  a  General  Pardon,  whi^h  difcharged  the  Con- 
tempt. The  Court  inclined  that  the  Colts  were  difcharged,  (or  tiiey  are  7M  Cofis  upon  a  Judicial  Pro- 
teeduw,  but  a   Kind  of  Conifojitt.n  with  the  Oftendcr,  and  lb  not  like  Cofts  tax'd  in  the  Ecclefiaftical 

Conn  pro  Rejormatiojie  A/orum.     z  Vent.  IQ4.  Anon,  cites  5  Rep.   51.  Hall's  Cafe z  Hawk.   PI.   C. 

^94   cap.  57.  S.  45. 'A.  was  fentenced   for    Defamation  in   Court  Chriftian,  and  appealed  to  the 

Arches,  but,  upon  the  Aft  of  General  Pardon  of  21  Jac.  i.  coming  out,  (juitted  his  Jppeal ;  upon  which 
the  Court  of  Arches  taxed  Cofts  againft  him.  The  Court  held  clearly,  and  it  was  admitted  on  both 
Sides,  that  after  the  Pardon  they  had  no  Poiver  to  tax  Cofis  ;  and  that  the  Defendant  did  well  in  dropping 
his  appeal,  becaufe  the  Sentence  on  which  it  «as  founded  was  vacated  by  the  Pardon  of  the  Otferce.  Lat, 

I  55.  Lewis  V.  Whirton. For  a  Contempt  in  a  Court  of  Ecjuity,  if  Colts  arc  taxed  to  the  Party  grieved 

before  the  Pardon,  they  are  not  difcharged,  becaule  it  is  in  a  Court  of  Euuity,  where  Cofts  are  at  the 
Plcafureofthe  Judge.     See  2  Vent.  194.  fays,  it  was  held  per  Atkins  Ch.  B  and  Vent   J.  in  the  Dutchy 

Court,  that  the  Cofts  were  not  difcharged 2  Hawk    PI.  C.  ^9.;.  cap.  37    S.  4;,  cites  S.  C  N) 

Cofts  for  a  Contempt  difcharged  by  the  General  Pardon.  Totii.  loS.  cites  27  Eli/-  Fulwood  v. 
Fuhvood. 

14.  The  Coroner  returned,  that  A.  was  killed  with  a  Gun  hy  Mifad- 
'vcnture.  The  Court  held  this  not  within  the  General  Pardon  ;  lor  that  it 
was  Manjlaughter^  being  occalioned  by  an  anncccjjary  ylH: ;  and  the  De- 
fendant mult  purchafe  a  Pardon.  (So  tliat  it  feems  the  ASi  does  not  par- 
don Manflaughter.)    Sty.  337.  Trin.  1652.  C.  B.    Anon. 

15.  General  Pardon  does  «or  pardon  Simony^   tho'  it  concludes  with  2  L.  P  R. 
fuch  general  VVords,  viz.  And  all  other  Ofjenccs  which  the  King  can  par-  ^^°-  T'*'-. 
don.     It  is  true  he  cannot  be  punilhed  for  this  Simony  upon  the  Statute,  g'"^^1""'''j'^^" 
vet  he  lluiU  be  deprived  i  tor  in  Truth  it  makes  the  Church  void,   tho'  not  pardon'd 
the  King  pardons  it  by  exprefs  Words.     Sid.  170.  Mich,  ij  Car.  2.  C.  E.  by  thofe 
Philips's  Cafe,  cites  Hob.  167.  VN'ords,  be- 

caufe  it  is 

Malum  infe.     Sid.  222.  ^■liotn  1).  ^fliilif 0.  And  favs  it  wa.s  fo  nd judged ^>l'thc  Dcleg-ates  in  S.  C. 

But  .Serjeant  Hawkins  fays  this  feems  to  be  ro  good  Real'on  ;  for  Barrctry,  and  the  Injurious  linking 
ofarother,  and  generally  all  ( :fiences  at  Common  L.iw  ,.are  alfo  Mala  in  (e  ;  and  yet  it  ieems  clear,  that 
unlefs  thev  be  Capital,  they  may  be  pardoned  bv  fuch  a  Pardon.     2  Hawk   PI.  C.  5SS.  can.  5-.  S.  26. 

G'  16.  A 


26  Prerogative  of  the  King. 

"N  Ch.  R.  16.  A  y ndgmcfit for  Rent  Jrrear,  wliich  was  difchnrgcd  by  the  Aft  of 

^'a^'^^'sV  Oi^l''*'^"  1660.   was  decreed  to  be  "-jncated.    Chan,   dies   $$.    Trin.   16 
'  Car.  £.  Boicon  V.  Anne. 

17.  Money  not  actually  paid,  hut  retainer/,  was  not  difchargcd  by  the 
A£t  of  Indemnity,  as  Lord  Cii.  J.  Jkidgnim  conceived  ;  but  'twas  rc- 
Icrr'd  to  make  a  Cafe.  Chan.  Cafes  59.  Mich.  16  Car.  2.  Dickenfon  v. 
Knowcll. 

18.  A.  was  indebted  to  I),  and  afterwards  during  the  tjfurpation,  his 
Eftate  was  fold  by  the  Sequeitrators  to  B.  who  deducted  out  of  the  Pur- 
chafe-money  his  Debt.  Ali:erthc  Reftoration  and  General  Ati-  of  Pardon 
pafs'd,  x\.'s  Heir  brought  a  Bill  in  Equity  againil  B.'s  Executor,  praying 
an  jicconht  of  the  Projiis  The  Court  would  not  compel  an  Account  i  for 
that  all  Adonies  rccerced  by  the  Profits ^  are  pardoned  by  the  Act  i  but  upon 
B.'s  Executor  confenting  to  account,  on  paying  back  the  Purchafc- money, 
and  B's  Debt,  it  was  decreed  accordingly.  Chan.  Cafes  172.  Trin.  22 
Car.  2.  in  Cane.  Stowel  v.  Long. 

19.  The  Delendant  was  fued  in  the  Spiritual  Court  for  Dilapidations, 
^nd  pleaded  the  General  Pardon,  by  which  all  Oflences,  Contempts, 
Penalties  &c.  were  pardoned  ;  and  for  this  Reafon  he  prayed  a  Prohibi- 
tion ;  but  it  was  denied,  becaufe  the  Statute  never  intended  to  pardon  any 
Satisfaifionfur  Damages,  but  only  to  take  away  temporal  Punilhnients.  3 
Mod.  56.  Hill.  36  Car.  2.  B.  R.  Pool  v.  Trumbal. 

20.  A.  was  convifiled  of  Barretry,  and  produced  a  Pardon,  which  was 
of  all  Treafons,  Murders,  Felonies,  and  all  Penalties,  Forfeitures  and 
Ofiences.  The  Court  faid  the  VV' ords  (y///  Offences^  will  pardon  all  that  is 
not  Capital,     i  Mod.  102    Mich.  25  Car.  2.  B.  R.  Angell's  Cafe. 

21.  By  the  Act  of  General  Pardon  13  Car.  2.  S.  5.  All  Debts  and  Sums 
of  Money  due  to  the  Cro'jin  are  difcharged,  tho'  they  do  not  relate  to  the 
Wars.  But  Acts  and  Actions  ofSidjeds  are  not  difcharged,  unlefs  they 
are  iiich  as  concern  the  Wars.  kxio[\td  per  Cur.  3  Lev.  134.  in  Cafe  of 
Travell  v.  Carteret. 

Serjeant  22.  A  Queftion  was,  Whether  after  Vcrdia  for  the  King,  a  Pardon 

Ha\vldns  iliall  excufe  the  Forfeiture?  But  adjornatur.  See  the  Argum.ents  on 
w  be  a  fer' both  Sides,  3  Mod.  241.  to  243.  Mien.  4  Jac.  2.  B.  R.  The  King  v. 
tied  Rule,     Johnfon. 

ThatPai-don 

by  the  King,  without  exprefs  JFords  of  Refitutin?,  pall  not  diyefl  eitlier  fi-oni  the  King  or  Subjeft  ^;;  Fn~ 
tei-eft,  either  in  Lands  or  Goods,  vcfted  in  them  by  an  Attainder  orConviclion  precedent  ;  yet  it  feems 
af^reed,  That  a  Pardon  fi-hr  to  a  Conviiiion,  pall  prevent' r.tiy  FcrJ'eiturc  either  of  Lands  or  Goods.  2 
Hawk.  PI.  C.  395.  cap.  3;.  S.  54. 

23.  A.  was  indicled  for  keeping  a  Glafs-houfe,  being  a  Nnfance,  and 
thereof  convicted  and  fined;  alter  wards  came  the  General  Pardon:  The 
Court  held  upon  Confideration,  that  he  was  difcharged  thereby  only  as 
to  the  F/;/f,  and  not  as  to  the  Abatement  of  the  Nifance  ;  for  that  is  not  a 
Punifhment  to  the  Party,  but  a  Removal  of  that  which  is  a  Grievance  to 
other  People,  and  which  any  common  Perion  may  abate.  Salk.  45 8.  Hill. 
I  VV^  &  M.  B.  R.  The  King  and  CKieen  v.  W  ikox. 

24.  A.  was  convicted  of  Decr-Jlealing  in  the  Sum  of  20  1.  The  Quefi:ion 
was  Whether  this  was  within  the  General  Aft  of  Pardon  ?  Pengelly 
Serjeant  argued  that  this  was  not  pardoned,  being  -a. final  Jadgtnent  on 
which  a  W  rit  of  Error  lies ;  and  that  it  was  not  fuch  an  OiTcnce  as  could 
be  pardoned,  becaufe  of  the  Forfeiture  to  the  Party  grie^-jed,  which  is  Part 
of  the  Judgment,  fo  that  he  has  an  Interefl  in  the  Penalty,  -and  becaufe 
the  Puniflimenr  is  by  Way  oi Satis faM ion  to  the  Party,  and  not  lor  £,v- 
aniple.     Arg.  Salk.  383.  M.  9  Ann.  B.  R.  The  Queen  v.   Barret. 

25.  A  General  Pardon  pardons  Piihlick  Offences  done  to  the  Common- 
wealth, hwx.  u lit  private  hijuries  done  to  particular  Perfons  i  for  if  it 
ihould,  this  would  be  to  mix  Mercy  and  Injultice  togethar;  to  be  piti- 
ful to  one,  and  cruel  to  another,  in  one  and  the  flima  Aft.  2  L,  P.  R. 
271.  Tit.  Pardon. 

26.  Ser- 


Prerogative  of  the   King.  27 


26.  Scrjeanr.  Hawkins  fay«,  It  has  been  qucilioncd  whether  a  General 
Pardon  of  all  ^nfpaffcs  extends  to  Champc-rtj  or  Confederacy.  2  Hawk.  PI. 
C.  389.  cap.  37.  t).  27. 


(S.  a.  z)    What  iliall  be  faid  within  the  Exception  of  a 

General  Pardon, 

I.  \  ^\'AS  indiclcd for  Piracy;  and  lor  Standing  mtitCj  was  con- 
Jf\»  demned  to  fuller  the  Penalty  ot  Peine  fort  fc?  dure.  Before  it 
was  put  in  Execution  came  a  General  Pardon  of  all  Pains.,  Coiitcrapts 
and  iLseciil ions,  excepting  Piracy  :  And  it  was  held  by  the  major  Pare 
of  the  jultices,  that  the  Party  might  be  indicted  again  ior  the  Piracy, 
the  Judgment  (which  was  pardoned)  being  only  lor  the  Otience  in 
Standing  Mute.     Dy.  308.  Pafch.  14  Eliz,.  B.  R.  Cobham's  Cafe. 

2.  To  an  Information  on  the  5th  Eliz.  tor  converting  arable  Land  into  ^■^-  argued 
Pajlure,  and  for  continuing  the  fame  three  lairs,  the  Defendant  pleaded  ,^°  'b'^'  ^'" 
Not  Guilty  as  to  the  Coaverfion,  and  to  the  Continuance  the  General  i\ame  of 
Pardon  of  the  15th  Eliz.  and  on  Demurrer  it  was  argued  on  one  Side,  '©iihuiD  ij, 
that  the  Act  by  excepting  only  this  Converlion,  did  not  extend  to  the  ^tlcrroole, 
Continuance,  (they  being  diltinft  and  feveral  Things)  and  fo  the  Conti-  a^^i  i;<ys  rhat 
nuance  was  pardoned  :  And  on  the  other  Side  it  was  inlilled.  That  the  wkhthe'De- 
Converlion  Leing  excepted,  that  includes  the  whole  OHence,  and  ex-  fendant  took 
tends  therefore  to  the  Continuance.    Adjornatur.  Le.  274.    Mich.  26  divcife  Ex- 
Eliz.  in  Scacc.  Cleypole's  Cafe.  ceptionsto 

'  ^  the  Infor- 

mation, which  in  Truth  were  material ;  wherefore  the  Court  could  not  give  Judo-ment  with  the  Plain- 
tift';  but  that  the  Caule  was  ended  by  Compofition. 

3.  The  General  Pardon  of  the  28th  Eliz.  is  of  all  Felonies^  except-  :  Hawk.  PI. 
ing  Burglary  &c.    The  Qiieilion  was,  \\'hecher  an  Attainder  of  Burglary  ^:  'S?-  cap. 
be  within  this  Exception  ?  It  was  refohcd  by  all  the  juftices  of  Eng-  ^it'cs  S  C. 
land,  that  it  was  excepted,  for  it  llich  an  Exception  would  include  and  adds,' 
Burglary  before  it  -was  tried,  tho'  it  does  not  then  appear  to  be  fo  in  the  that  there- 
Eye  of  the  Law^,  and  ftands  a  Doubt  left  at  the  I'rial,  whether  Eur-  ^°J^  ."  ''"'"S 
glary  or  not,  a  Fortiori  ought  it  to  be  excepted  when  the  Burglary  Letter  of^thc 
appears   of  Record   by  Judgment  at  Law  i   and  liticc  the  Burglary,  E>:ception,  it 
which  is  the  Foundation,   is  excepted,    theretore  every.  Thing  con- c.mr.ot  but 
fequent  thereupon,    is   excepted  likew  ile.     6   Rep.    1-5,  a.    Cafes   of '^'^  ™^"'^^''' 
Pardons.  ,  t7e  m""'' '" 

of  it  alfb. 
Neither  does  it  follow.  That  becaufe  a  Pardon  of  a  Felony  whereof  a  Perfon  is  attainted,  is  not  rrood, 
■without  mentioning  the  Attainder,  therefore  fuch  a  general  Exception  of  a;ll  Felonies,  fnall  not  extend 
to  thofe  whereon  there  hath  been  an  Attainder;  foi-  the  Cafe  of  fuch  a'Pardon  depends  on  this  Special 
Reafon,  that  the  King  ought  to  be  fully  apprised  of  the  Proceedings  againll  the  Party  before  he  par- 
dons him. S.  P.  Jenk.  2.69.    pi.  ^5. 3  Inil .  s;^..  xites  Hiliv  £9  Ejii.   S.  C. S.  P. 

5  InPi.  23S. 

4.  A.  was  bound  in  a  Recognizance- fa  appear  before  the.  High. Com- 
miiiioners,  and  not  to  depart  without  Licence;  to  which  A...  pleaded,  the 
General  Act  of  Pardon,  which  excepts  all  Recognizances  <&c.  except 
Recognizances  for  y/p/if^raA/rt;.  Adjudged,' by  all  the  Barons  of  the 
Exchequer,  that  the  Departure  without  Licence  was  not  pardoned, 
but  A\ithin  the  Exception;  for  the  not  depai-ting  iz'itioiit  Licence,  was  only 
mentioned  in  the  Recognizance,  in  order  ro  continue  her  iVppearancej 
and-  tho'  not  mentioned  in  the  Exception,  yet  it  is  woi  )-a  collateral 
Thing,  but  within  the  Scnfe  of  it.  2  Le.  179.  Trin.  31  Eliz.  Paf- 
chall'sCafc. 

5-  A. 


28  Prerogative  of  the  King. 


A  Bill  w,is  J.  A.  brought  his  Bill  in  the  St;ii-Ch;imbcr  lor  Rior,s  and  Rout.s  t^Vc. 
brouj^htin  -y^hich  was  H\e  Ycars  bclbic  the  General  Pardon,  in  the  H.eign  ol"  (^. 
Chambci'  Eliviiibeth,  wherein  were  excepted  alt  Penalties  Qlc.  iiiC(in"d]or  any  Of- 
and  then*  ^encc  ^c.  (or  "which  any  Bill  bath  bcin  exhibited  within  8  I'uars  teft.rc,  and 
pa's'd  the  'now  depending,  and  alio  except  all  Offences,  Con  temp  s  Sc.  jor'-ji'hich  any 
General  gj^  ^^^  ep(hibited  "Within  fuiir  Tears  before,  and  now  depending.  The 
ffaJwards  Queltion  was  relerred  by  the  Court  oi"  Star-Chamber  to  Coke  SoUici- 
the  Caufe  tor-General,  W  ho  certified  that  the  Fine  to  tlie  (^ueen  Avas  not  pardon- 
was  tried,  ed,  but  excepted  i  but  the  Imprifonnicnt  and  Corporal  Punill.menc 
and  s  Fine  ^yere  pardoned  :  But  if  the  Bill  had  been  exhibited  within  thcjoitrltars, 
DL-tcndant  '^'^'^'''  ^^^  Oftence  itfelf  being  excepted,  by  Conlequence  all  Incidents 
tor  Paitof  or  Dependants  upon  it,  whether  Corporal  or  Pecuniary,  are  excepted  ; 
the  Matter  and  therefore  in  that  Cafe  nothing  is  pardoned.  And  this  Certificate 
chai-pedin  j^.^g  been  often  confirmed  by  the  Opinion  of  the  Court  of  Star-Chamber. 
for  other  5  Rep.  46.  b.  Mich.  35  &  36  Eliz.  Franklin's  Cafe. 

Jtlatter 

chare 'd  therein,  the  Plaintiff  was  fined  to  the  King  and  the  Party  grieved,  it  he'mg  fcanAahitSt  and  riot 
tyitrhhiaUe  iy  the  Court.  The  Qucilion  was,  whether  this  Fire  and  Damaj?,es  (et  upon  the  Pi  .i'-tiff  we/s 
V  ithin  tiie  Exception  of  the  Pardon,  which  is  of  all  Offence i  &=c  Kvlereol,  or  for  lAich  any  Bill  within 
8  y'ears  before  iv,u,  and  is  new  depending.  Adjudged  that  it  w as  paidom d,  for  this  fh;il  1  not  be  laid  to  be 
a  Hill  depending  (according  to  the  Exception)  on  the  Part  of  tl e  Plai7iti{f,  to  charge  him  with  the  Of- 
f-nce  ;  for  iiis  Bill  can  never  be  faid  a  Bill  depending  againft  hiiiijelj^  on  which  the  Plaintiff  is  to  be 
fined  ;  but  it  was  only  intended  to  except  Bills  depending,  ivith  Regard  to  the  Dcjendant,  and  this  Qon- 
Xew^l  viAi  accidental  and  collateral  X.ox.\\&  d\\\,  which  being  pardoned,  by  Confeouence  the  i^ne  is  par- 
doned likewifc.  By  all  the  Judges  at  Serjeants-Inn  in  Flect-ilreet,  except  one.  Hutt.  79.  Hill,  i  Car. 
Beverly  v.  Powell Jo.  S9.  S.  C. 

6.  In  the  General  Pardon  of  the  35  Eliz,.  there  was  an  Exception  of 

all  Offences  for  "which  any  Suit  at  any  Time  within  four  Tears  before,  or  up- 
on the  lajl  Day  of  this  prefent  Parliament,  and  is,  oi'Jhall  be  now,  on  the  laji 
Day  of  the  Scfjions,  depending  in  the  Star-Cbainber.  And  in  this  Cafe  a 
Bill  was  exhibited  in  the  Term  before  the  Parliament,  and  Procefs  anard- 
ed  returnable  the  Term  after  the  Sellions  ended.  Adjudged  that  this 
was  a  Suit  depending  before  the  Return  or  ferving  of  the  Subpxna, 
and  fo  within  the  Exception,  this  being  a  Procels  ifluing  out  ol:,  and 
returnable /«fo //'e  y^?OTf  C(j/ftt  where  the  iiill  is  exhibited,  (Aii.)  the 
Star-Chamber  i  and  there  is  a  great  Diveriity  between  this  and  an  Ori- 
ginal ilfuing  out  of  Chancery,  and  returnable  in  B.  R.  or  C.  B.  for 
there  the  Original  comes  out  ot  another  Court,  and  there  is  no  Record 
in  B.  R.  or  C.  B.  before  the  Return  of  it.  Adjudged.  5  Rep.  47. 
Hill.  39  Eliz,.  G.  Littleton's  Cafe. 

7.  A.  was  outlawed  on  a  Recognizance  in  Nature  of  a  Statute  Staple, 
and  after  came  the  General  Pardon  of  the  39th  Eliz.  excepting  all 
Debts  due  to  the  Queen  by  Recognizance  &cc.  or  otherwile,  and  except  all 
Debts  already  forfeited  by  Reafon  of  any  Outlawry.  It  was  refolved,  that 
by  the  lalt  Exception  it  appears  to  be  the  Queen's  Intent  not  to  include 
any  Debts  which  accrued  due  by  Outlawry  within  the  fi.rlt  Exception  j 
for  as  to  thefe  there  is  a.  fpectal  Saving,  and  in  a  fpecial  Manner  j  and 
being  a  General  Pardon,  it  is  to  be  taken  moit  beneficially  for  the 
Subjeft,  and  moft  Itrongly  againft  the  Crown.  5  Rep.  49.  b.  50.  a.  Hill. 
41  Eliz.  in  Scaccario.  Wyrral's  Cafe. 

Het  124.  8.  The  General  Pardon  of  the  21  Jac.  w  as  with  an  Exception  of  all 

S.  C — Jo.  Tithes,  and  jiiiions  of  ,^uare  hnpcdit,  other  than  fuch  wh\ch  the  King 
354.  S.C.  jpj.jy  have  by  Reafon  ot  any  Lapie  incurr'd  Ultra  three  Years  lalt  pait 
for  any  Benefice  whereof  any  Incumbent  then  was,  or  the  lafl  Day  of  the 
Parliament fljould  be,  in  Pofjejfion  by  Prefentation  or  Collation.  In  this  Cafe 
the  Church  became  void  by  the  Incumbent's  taking  another  Benefice, 
and  continuing  fo  two  Years,  the  King  made  Title  to  prefent  by  Lapfe. 
Adjudged  that  the  Pardon  extended  r^ot  to  this  Cafe  ;  lor  that  it  was 
never  the  Intent  of  it  to  dijpenfe  with  Pluralities,  and  the  Delendant  is 
not  an  Incumbent  within  the  Provifo  of  the  Exception,  for  he  is  an  In- 

cujTibent 


Prerogative  of  the  King.  29 


bent /-f  Ufurpation  and  Wrong.  Cio.  Car.  354.  Hill.  9  Car.  Per  all  the 
jujlices  in  the  Exchequer  Chamber,  except  two.  The  King  v.  the  Arch- 
bilhop  of  Canterbury  and  Pryll. 

9.  A.  being  indebted  to  B.  the  King's  Receiver,  gave  him  a  Bond, 
upon  which  his  Lands  and  Goods  were  extended  ;  and  afterwards  upon 
Security  guen  to  abide  the  Order  oi  the  Courtj  the  Goods  of  A.  were 
relloreci,  and  for  ib  doing  A.  and  C  enter  into  a  Recognizance ;  and 
upon  Breach  thereof  Judgment  was  had,  and  a  ^\'rit  of  Error  brought, 
in  which  there  was  a  Nonfuit  after  the  General  Act  of  Pardon  i  ^and 
then,  a  Scire  Facias  being  brought,  the  Defendant  pleaded  the  Par- 
don thereto,  in  which  were  excepted  all  Recognizances,  Obligations 
&;c.  entered  into  by  any  Receiver  lince  the  25th  March,  1640^  and  in 
another  Cl^nk  all  Bonds  taken  in  his  late  Majefiy^s  Name  bejore  Aday  1642. 
for  fecurin?  the  proper  Debt  of  any  Receiver  of  the  Revenue^  were  likewife 
excepted.  This  Recognizance  was  held  to  be  included  within  the  Ex- 
ception under  the  Word  Obligation  ;  for  the'  an  Obligation  is  not  a  Re- 
cognizance in  Pleading,  it  may  well  be  fb  within  the  Meaning  of  an 
Act  of  Parliament,  and  this  was  given  in  Lieu  oi  the  Obligation  "entered 
into  beiore,  and  is  a  Bond  of  Record;  and  fo  being  both  Obligatory ^  it  is  in 
this  Cafe  the  fame  Thing.  Hard.  366.  Mich.  i6  Car.  2.  in  Scacc.  The 
Attorney  General  v.  Ward. 

10.  a'  Bill  was  filed  by  A.  in  the  Exchequer  againfl:  B.  for  Wages 
due  to  him,  as  an  Officer  under  him  in  the  Mint,  B.  having  been  made 
Mafter  of  the  Mint  by  the  Keepers  of  the  Liberties  of  England,  and  there- 
upon entered  into  Articles  with  them  ibr  Payment  ol  the  fiid  Wa^es. 
Upon  the  Reftoration  all  Publick  Debts  and  Securities  were  veiled  in  the 
King,  but  became  difcharged  by  the  A61  of  Oblivion,  excepting /■/-)<? ^t-- 
coiints  of  Per/on s  'ischo  have  received  any  of  the  Rents  ^c.  of  any  Heredita- 
ments of  the  Cro-isjn,  and  ail  Securities  entered  into  by  any  Receiver  or  other , 
Accountant  in  the  Court  of  Exchequer^  and  excepting  any  the  Goods,  Money 
i^c.  of  the  late  King,  ^tieen,  or  Pnnce.  The  Delendant  pleaded  the  Par- 
don ;  and  adjudged  that  this  was  a  Cafe  within  it,  and  not  taken  out  of  it 
by  any  cf  the  Exceptions  ;  tor  the  Exception  of  the  late  King  and 
Queen's  Goods  extends  only  to  fuch  as  they  were  athialiy  pofjefs" d  of  ;  and 
as  to  the  Word  Qjdccoitntants')  that  relates  only  to  common  Accountants 
in  the  Excheciuer,  whereas  tiiis  is  the  Cafe  of  a  particular  Accountant  in 
a  Collateral  \v'ay  i  nor  is  this  an  Account  of  the  Rents  &c.  of  any  He- 
reditament  of  the  Crown,  properly  fpeaking,  tho'  it  may  be  in  a  large 
Senfe  lb  called,  but  the  Product  ot  the  Office,  or  ^rade  of  the  Mint.  Per 
Cur.  Hard.  371.  Mich.  16  Car.  2.  in  Scacc.  The  Attorney-General  v. 
Guerdon. 

11.  One  G.  in  the  Year  1659.  w-xs  attainted  oi'^lmd^er,  a;:d  executed ; 
and  it  was  tcund  by  Inquilition,  that  &x  laid  G.  had  lent  30  /.  to  the  De- 
fendant, and  that  the  Defendant  was  indebted  to  the  faid  G.  for  it. 
Whereupon  a  Scire  Facias  ijficd  againfl  the  Defendant,  who  pleaded  that 
ilie  was  not  indebted  to  the  i'aid  G.  Modo  &  forma  prout:  And  Haie  Ch. 
B.  held  that  the  A6t  of  General  Pardon  excepts  only  the  Offence,  and  not 
the  Forfeiture,  but  that  that  is  pardoned.  Hard.  421.  Trio.  17  Car.  2.  in 
Scacc.  The  King  v.  Margery  Bernard. 

12.  Upon  an  Inlormation  agaiiift  A.  as  Heir  and  Tertcnant  of  the 
Lands  ot  B.  the  King's  Cofferer,  for  Monies  received  to  the  King's  Ulc         , 
the  Defendant  pleaded  the  Act  of  General  Pardon   12  Car.  2.   in  which 
were  excepted  all  Fines  &c.  and  other  publick.  Duties  received  by  any  Sheriff" 
^c.  or  ether  Officer  for  the  late  King's  Lfe,  and  not  accounted  for  and  dil- 
charged  ;  and  excepting  all  Oftences  in  Detaining,  hnbezilling,  or  Pur- 
loining any  Goods,  Monies  or  Chattels  of  the  late  King,  .^/leen,  or  Prince. 
Adjudged  that  this  Account  was  pardoned,  and  not  within  any  of  the  *  Hai-d.  ;-i. 
Exceptujns  ;  lor  the  detaining  the  late  *  King's  Goods  and  Monies,   re-  '^'^'^  Aitor- 
lates  oni\-  to  Goods  that  were  cnce  in  his  affual  Poffff-on,  and  then  taken  "'"'cil^-rdon 

H  liom  S.l'.udnidg'd. 


30  Prerogati\e  of  the  King 


from  hinii  and  otherwife  the  whole  Pardon  might  be  deleated  bv  this 
Exception,  nor  is  it  within  the  other  Exception  i  tor  a  Coifircr  is  a  Peifon 
of  higher  Rank  than  any  that  arc  named  in  the  Acl,  and  a  Superior  fJiali 
not  be  included  where  an  Inferior  is  firft  named  ;  and  fo  the  Plea  was  al- 
lowed per  Curiam.  Hard.  44.1.  Pafch.  19  Car.  2.  The  Attorney  Gene- 
ral V.  Palmer. 
S.  P.  For  13.  If  a  General  Pardon  be  with  an  Exception  of  Murder^  yet  it  does 

notwith-  _  i^ot  except  a  Felo  de  fe,  efpecially  where  no  Inquihtion  was  tbund  till 
c£cf  may  ■'^^"^^''  ^^^  tieneral  Pardon.  Sid.  150.  Trin.  15  Car.  z.  B.  R.  The  King 
in  Sti-ictncis  V.  Warde. 

be   called 

Murder,  and  confequently  may  fecm  naturally  enough  to  come  within  the  Exception,  yet  fince  the  ge- 
neral Words  of  an  Act  of  Parliament  are  to  be  expounded  accordino;  to  the  common  Ufe  of  them,  and 
the  Ofl'ences  of  Felo  de  fc  and  Murder  are  generally  underftood  as  diftincf  Offences,  and  as  fucii  are  di- 
ftinftly  treated  by  all  Authors,  who  when  they  ufe  the  Word  Murder,  as  fignifying  a  certain  Species 
of  Offence,  always  mean  by  it  the  Murder  of  another  ;  and  farther,  fince  there  is  greater  Reafon  to  ex- 
ceptthe  Islurder  of  another  out  of  a  Pardon,  than  that  of  3  Man's  fclf,  becaufc  both  the  Law  of  God 
and  Nature  fecm  generally  to  require  Blood  for  Blood,  which  can  be  applied  only  to  the  Murder  of  ano- 
ther, the  Word  AJurder  fliall  in  fuch  an  Exception  be  taken  011/y  toJJgyiijy  the  Ahirder  of  a?ioll.'er.  1  Hawk. 
Pl.C.  387.  cap.  57.  S.  20. 

A  Suit  was  14.  Suits  for  Dilapidations  were  excepted  out  of  the  Aft  of  General 
commenced  pardon  of  2  IV.  &  M.  Self.  I.  cap.  10.  iinkfs  commenced  and  dependinjr 
after  the  Day  r    /.  ^  n^.,  mi  r  £. 

intheSpi-     Z^'^/^^-^^J'- 
ritual  Court, 

and  a  Prohibition  was  moved  for  to  flay  the  Suit,  which  was  by  the  Succeffor  againft  the  Executor  of 
the  former  Incumbent  ;  but  the  whole  Court,  upon  hearing Counfel,  and  Confidcration  of  the  Matter, 
conceived  that  the  Parliament  never  intended  to  take  away  the  SuccelTor's  Remedy  for  Dilapidations, 
for  that  was  to  eafe  the  Executor  of  the  V\'rong-doer,  and  tranflate  the  Charge  to  the  SucceiTor.  But 
thev  would  intend  this  E.xception  of  fuch  Suits  as  might  be  in  the  Ecclefiaftical  Court  agawft  the  Dila- 
pidirfcr  hinifelj,  to  ptiriip  it  ^s  a  Crime  agr.inft  the  EccleJi.Tflrcnl  L.-cC;,  and  to  ■pardcn  it,  ualefs  there  luere 
Frcfecittion  liefore  the  Dt^y  afore/aid.     And  fo  the  Prohibition  was  denied.     2  Vent.  216.  Anon. 

15.  Information  in  Nature  of  a  ^/eo  Warranto^  and  Judgment  per  Nihil 
dicit,  and  a  Capiat itr  pro  Fine  :  The  Queftion  was.  Whether  this  was  par- 
doned by  the  late  Aft  ?  Holt  Chief  Jullice  delivered  his  Opinion,  That 
£!n  Interlocutory  Judgment  is  not  within  the  Exception  of  the  Aft^  for 
by  a  Judgment  is  meant  a  final  Judgment.,  it  being  coupled  nsiith  Sentence 
and  Decree.,  and  a  Capiatur  pro  Fine  is  only  to  bring  them  in  to  receive 
the  Judgment  of  the  Court  ^  but  this  being  a  Matter  of  Right,  viz.  in 
a  Quo  Warranto,  tho'  the  Fine  be  paidoned,  yet  the  Continuance  of  the 
Crime  is  not.  And  he  faid  he  remembered  a  Cafe  upon  the  Aft  of  Par- 
liament, in  King  William's  Time,  where  the  Fine  for  the  Nufance  was 
pardoned,  but  not  the  Continuance  ot  the  Nufance.  He  fiid  likewife, 
that  v/here  W  rits  of  Error  fay,  Si  Judicium  inde  redditum  lit,  it  extends 
only  to  final  Judgments,  and  ^o  does  the  Exception  in  the  Aft  of  Parlia- 
ment. And  Powel,  Powis  and  Gould  were  of  the  fime  Opinion  j  where- 
fore Judgment  was  given,  that  the  Defendant  fliould  be  oulledof  his  Of- 
fice tor  committing  the  Offence,  but  that  the  Fine  is  pardoned.  11 
Mod.  235.  Trin.  8  Ann.  B.  R.  The  Queen  v.  Tyrril  and  Berber. 
Ibid.  697.  16.   Marrying  an  Infant  Ward  corumttted  ly  Order  of  Chancer);  and  that 

the  Repoi-tev  without  the  Privity  of  the  Committee,  is  a  Contempt  of  the  Court;  but  a 
%S' 1"'"'^  General  Aft  of  Pardon  coming  afterwards,  th:)'  with,  an  Exception  of  all 
Chancellor  Contempts  and  Offences,  for  which  any  Profecution  was  then  depending, 
made  the  and  which  had  been  profeciited  at  the  Charge  of  any  private  Per/on  or  Pcr- 
like  Deter-  foas,  was  held  by  Lord  Ch.  Parker  to  be  pardoned,  this  Oftence  or 
mination  in  Contempt  ending  only  in  the  Punifhment  of  the  Partv  OiTending,  and  not 
i^lffin  V.  in  relieving  or  redrell'ing  the  Profecutor.  VV'ms's  Rep.  696.  Pafch.  1721. 
a&iffin;  and  Phipps  v.  Earl  of  Anglefey. 
alfo  for  a 
Contempt  of  another  Nature,  rclatir.g  to  a  Ward  of  Chancery,  i;;  Dr  Y.ildcn's  Cafe. 

17, 


Prerogative  of  the  King.  3 1 


17.  Ic  has  been  holdcn,  that  a  Forfeiture  due  to  the  King  by  Force  of  ii 
Conviilion  upon  the  Statutes  29  Eliz.  6  Par.  5.  and^Jac.  i.  4.  Par.  7.  ihaU 
not  be  taken  to  be  within  the  Exception  of  a  General  Pardon,  which  ex- 
cepts all  Forfeitures  &c.  converted  to  a  Deut  by  Judgment.  Hawk.  PI.  C. 
16.  cap.  10.  S.  23. 

18.  It  has  been  adjudged,  That  where  a  General  hSt  of  Pardon  ex- 
prcfcly  pardons  all  Fctii  itreafons.^  but  excepts  Murder^  it  cannot  be  avoid- 
ed by  indicting  one  lor  Murder  only,  without  the  Word  Proditorie  &c. 
who'has  been  Guilty  of  Petit  Treaion  ;  *  for  tiie  lefs  Olience  being  in-  *  ^-  ^: 
eluded,  and  confequcntly  drowned  in  the  greater,  cannot  but  be  par- ^  ^c-^  c:^ 
donedby  a  Pardon  of  it  ^  and  therefore  the  Exception  ol  Murder  in  iuch  2-.  s.'  -9. 
a  Pardon  7nujl  be  confirued  offuch  Murder  only  as  is  fpe dally  fo  called.,  and 

doth  not  amount  to  Petit  Treafon.     2  Hawk.  PI.  C.  386.  cap,  37.  S.  19. 


* 


(U.  a)    Charter  of  Pardon.      fFl.mt  Thing  iliall  be  par- 
doned by  Fardoii  of  other  \Thh?g.~\ 


Fol  1  -y.  bis. 
(R.a) 


i^Tif  a^tin  I1C  outlawed  in  Trefpafs,    aUU  tljC  Mtg  pardons  theCS-a^ 
1  Outlawr)-,  yet  the  Fine  remains,  far  tl)l5  fi)il!l  HOt  pilfSl  W  tinP  *  rio ;?  gf 

general  xmx^,  1 7  ip*  4*  17*  ti.  +  22  sfra;  47*  no-titise^.        "      itBr.cha.- 

tcrs  de  Par- 
don, pi.  12.  cites  S.  C. ±  Br.  Charters  de  Pardon,  pi.  30.  cues  S.  C.- 

2»  "But  3S)at50n  of  Trefpafs  before  Outlawry  will  bar  the  Fine.     7  S.  P.  For 

'^  Ihall  not  be 

but  where  he  is  outlawed,  or  otherwife  attainted.     Br.  Charters  de  Pardon,  pi.  12.  cites  S.C. 

3.  Jf  a  C^ait  outlntueB  -tt  tlje  %\\ix  of  tlje  partp  fee  pnrBoucti  of>^.p.  For 

tlje  Outlawry,  pet  !)€  is  not  reltored  to  his  Goods  tljereb  iV     7  f:)*  4*  5*    P'^'don/,^// 

'"  '  rot  e'rje  Kejii- 

titthn  c[ Goods,  but  only  a  Refiitution  to  the  Law.     Br.  Cliarters  de  Pardon,  pi.  1 1.  cites  ;  H.  4.  4.  5. 

4*  3if  a  C9an  outlawed  of  Felony  pUl'Cljaft  a  Pardon  of  the  Outlawry,  In  Emrupn 
Vti  tjiS  Goods  and  Lands  Ihall  be  torleited.     *  7  f)^  4*  17,  l3.  Outlawry 

proKSDKced 
upon  IndiBmenl  of  .h'urder,  'twas  afiigned  for  Error,  that  at  the  Capias  the  King  pardoned  him  all  that  in 
him  is,  aU  Chattels  and  Pojfvjjions  ;  ai:d  prayed  that  the  Oiitlaiury  be  reverfcd,  aiui  that  he  may  ha-te  his 
Chattels  :  And  the  Judgment  Was  reverfed  ;  but  he  did  not  re-ha-ve  bis  Goods^  becaufe  ic  did  not  appear 
by  Record  here,  which  was  againft  the  Opinion  of  Hank.  Qu.2re  ;  for  it  f>.ems  that  it  einrht  to  he  hy 
Ji  ords  of  Rcftitiitio)!,  and  not  hy  IVvrds  of  Pardon.  Br.  Chartcr.s  de  Pardjn,  pi.  75.  cites -j  H.  5.  14.  15.-^ 
*  Br.  Charters  de  Pardon,  pi.  12.  cites  S.  C 

5+  Jf  a  I^^an  bound  in  a  Recognizance  for  Surety  of  the  Pe.tce  kills  a 
Wan,  antl  10  pardoned  of  the  Felony,  VZt  \)Z  {\)M  UOt  tiC  CUCijiVCSeG  Of 

trie  Eccopijunce*  7  Ij)*  4*  35*li> 

6.  it  a  Man  ht  iiidicled  of  Felony.,  and  alfoof  Treafuu,  and  after  he  is  Br.  Corone, 
outlawed  of  Felony^  and  then  the  King  pardons  the  Felony,  he  lliall  not  be  pi  146.  cites 
arraiznt'd  of  the  Treafon  ;  for  he  cannot  be  dead  but  once.     Per  Caccsby  :  ?!,•*■"■  l"'-"'^ 
but  Brooke  lays  the  contrary  is  held  ior  Law.     Br  Charters  de  Pardon,    "*'"    -* 
pi.  44.  cites  6  E.  4.  4. 

7.  [i  three  bring  feveral  Appeals  of  Rclbcry  againft  IV.  N".  and  he  is  found 
Guilty  at  the  Suit  of  the  one,  he  Jhall  not  be  arraigned  at  the  Suit  of  tl^^e 
others.  Per  Suliard  ;  but  Markham  contra  ;  qua.re.  Br.  Corone,  pi. 
146.  cites  6  E.  4.  4. 

8.  A  xMan  abjured  the  Realm  for  the  Death  of  a  Man,  and  was  taken  ,  Infl.  z\^. 
afterwards,  and  pleaded  the  King's  Pardon  of  all  Felonies  ,  and  was  dil- ^"p  ^^^ '~"'T 
allowed;  lor  it  did  not  make  Alcntion  of  Abjuring.     Br.  Cnarters  de  pj  ^".yV^ 
Pardon,  pi.  23.  cites  9  E.  4.  28.  '  tap.  ;-'.  s.  s. 

9.  One 


3^ 


Prerogative  of  the  King. 


9    Cr.e  fined  for  Trefpafs,  sr.d  alter  the  TrerpsCs  is  pardoned  ;  the  Fine 
fhali  not  be  difcharged  i  becaule  the  Pardcn  h:is  no  Relation  to  any  cer- 
tain Tin.e.     Lat.  141.  Daw's  Cafe. 
•p.cKi-'-  10     If  the  King  bjs  a'Verdiff   againft    A.  jor  Debts  cr  D.iuugcs, 

-  -  j.id  li*cre  JuJi^i^'.ht  the   Kins;  fjrdcns   this  Delr  a»d  Damages  to  A. 

"the  Kincr  "ihill  have  Judsnient  :  So  it  is  between  common  Perlons  ^ 
J^'vk^on  -  bu^  beca!ie  neither  a  Scire^ Facias  lies  againli  the  King  for  A.  il  he  be  m 
thc'Dc'cn-'  Execution,  nor  an  Audita  Querela,  if  he  be  not  m  Execution  ;  this  Par- 
cant  plc^d^  (j^n  .,ad  Releafe  l>,all  be  .T/Vcxti  to  dr'ch-rge  tbi  Ex:c:tt:cti.  Jenk.  1S3. 
Non  ca  F.c-    ,    ^        ■       I ,  H.  7.  10.  bv  all  the  Judges  in  the  Exchequer  Ctiamber. 

t'-im,  and  it    i'-    i""        '  '  '  j       ^ 

\?^1  ;-„\!!^-  .K.  Deed  of  the  Defendant,  and  before  the  Dav  in  Bank,   the  Kirg  pardoned  the  Defen- 

dJt^a  r  D^btst  Quar«ls  &c.  and  after  the  King  h.d  JucJ  -  ^ucd  out  fxccutiW    Albeit  by 

'    •  LZrl  r^w  Ti^'e  'o  the  iVid  Debt  is  accrued  to  :  ^  :   Record  after  the  Pardon,    the 

VVne  Tine  or  the  Pardon  bcina  but  a  Mu'er  L-.  .  -cr,  yet  bicau'e  the  Obh-ation  was  the 

-  of -h-  Debt    a-d  the  Matter  whereupon  Tudgment  was  gi'cn,  xid  by  the  ParJon  the  Debt 

c  -r  brthe  pb'lig-.uon  was  extind,  the  Judgmeat  thcrcapoa  caar.o-  bind,  but  is  to  be  avoi..cd  by 

plei-ing  --c-e  FarGon.     5  lait.  23 5. 


^.u.  2)     Chai-ter  of  Pardon.      Rehtioi:, 

rv         I  T^£^'         '    i^'-fg  "P^"  OUiguHctt;  the  Dcfmd^nt  pleaded  Nhn  efi 
de'pido'^^'^    ■  l)  r  .vhich  palled  a^aifi.i  bwi  by  Xili  Prius,  ^nd  lefore  the 

f..  ^'dti'  D'^/  Ba«k  Chi  Kinr  pardoned  lom&ic.  this  discharges  the  DePt,  but  not 
^  ^-  th'F:n'    which  accmed  bv  tne  J  udgment  alter  the  Pardon,  h  the  denying 

c^k's  cln  Did,  and  ib  no  Relicion  of  the  Fine  to  the  Action  j  tor  this 
i-'curr'd  bv  the  denying,  which  was  betore  the  Pardon,  and  the  judg- 
ment is  by'Realbn  o'f  it.     Br.  Rekciox-i,  pi.  22.  cites  34  H.  6.  3.  aad  35 

3r  Charters  2  'pltent  granted  by  the  King,  or  Pardon,  and  other  Matters  ot  Re- 
de Pardon,  cord,  ihall  have  Relauon  to  rhe  Icjie  cr  Da:e  oi  it,  and  Matter  in  Pact  to 
jl.  24.cir^  the  Time  ci  the  Delivery  only.     &r.  Patents,  pi.  24.  cuts  ^7  H.  6.  2 1. 

£r  Qa  have  R.l^i:r,  t:  tU  D.f.,  .«.^  f^U  D^,  hclr^  Matter  of  Rc:or,  ■  other.Lb  of  Mat- 
ter is  Pms.     Adjudged.   I^ch.  2;.  m  Bo&on  s  Ua-e. 

3.  rol'jntary  Efsape  cannot  be  pardoned  before  the  Aa  done.     Br.  Pa- 
tents, pL  51.  cites  13  H.  7.  15.  ^,       ,    ^    ,  7        r 

4  Ii  a  Man  be  attainted  0;  Murder  cr  Felony  hy  OittloiSTy  or  otherwtfe 
acd  the  Kin<^  vardcas  him  all  Felonies,  Mird^rs,  and  Executions  thereof, 
and  Omlawrui  and  Wai=v;ngs,  and  Suits  of  Peace,  and  pardons  and  re- 
leafes  aU  Forfeit '!res  cf  Lands  and  Temnunts,  ana  cr  Goods  ana  Lcattcls  j 
this  ihail  ferv'e  only  lor  the  Life  and  tor  the  Land,  it  no  Office  be  thereot 
iSand  but  itlkail  net  fer^e  ''cr  f/v  Gads  -jcitk^otn  RefriT.-ition  cr  Grt  s  tor  the 
Kinc^'is  inntled  to  them  bv  the  Outla\s  ry  without  Office,  but  the  King 
is  n  "t  intitled  to  the  Laud  till  Office  be  tound  ;  and  ii  Otnce  be  lound 
afterw-rds  vet  the  Pardon  ihall  fervej  tor  this  ihall  have  Relauon  to 
the  judgment  and   then  the  Pardon  Mefne  ihall  ferve  well :     Contra 


fij. 


pi.  J2.  cites  29  H.S. 
2  Hawk.  PL        5-  -'    ' 


\  being  indiaed  for  Murder,  pleaded  a  Pardon  oi  ail   Feionies, 

C.7s"-~^"a  Oiiences  &c.  Ic^cre  and  until  the  iJ^^h  D.jy  of  Februa^;  which  wis  fabfe- 

5:.  S."  21.  *  qasnr  to  the  Time  of  the  giving  oi  the  W  ound,  out  aiKcccdcat  to  tre 

Far fs  Death.     It  was  adjudged  th^t  the  Murder  was  pardoned;  tor 

th°  NS'ooad  ^ivcn  bv  the  Prtfoner  was  the  Commencanent  o;  rta  Felony,  and 


Prerogative  of  the  King.  3  :^ 

\7is  the  Oieace  and  Mifdemeanor  agaiml  the  Queen,  which  is  pardoned 
by  the  Statute,  and  for  that  Reafon  e^er)  TLi/ig  ccajcquea:  thereupon.  PI. 
C.  401.  Mich.  13  Eliz.   Cole's  Ca!e. 

6.  Where  a  MiniJrcT  was  "  for  an  Offence  'fcntpcn  PiTli.-minti^  S  C  c-Itsd 

and  the  Ojfaics  -j.-jis  aiierwarc-  ;       .   J  by  Parliament ;  and  then  the  Par-  ^[^.V^;  '^ 
Jiament  ended.     The  Depri":niai  was  utterly  w/^j  for   the  Pardon  re-  -- £:j7q3 
iateth  to  the  firft  Day,  and  the  Parry  need  not  fue  to  reverie  the  Depri-  fn'cis  of 
vatioa.     Cro.  E  41.  Triruiy  Eliz.  C.  B.  Fox's  Caie.  B^er  -. 

Rogrrs. 

S.C  cited  2  Hiwk.  PLC  595.  cp  r-  S  5: 

r.  Upon  an  Appeal  to  the  Arches  Coort,  there  was  a  Stmena gi^sen  fcr  S  P  B.:  if 
dtfamziiry  Jf'cr.isj  and  12.  d.  QJrs ;  and  then  came  the  General  Pardca  ;y*^  *^^l?^ 
and  then  the  Delendant  appealed  to  the  DeUratis,  who  affirmed  the  kit  j^l  l^^r  _ 
Sentence,  with  gre.itcr  Cojis^  not  allowing  the  Defendant's  Plea  of  the  in  ths  Spi- 


S31 


Jac.  C  B.  Davis  v.  Hawtins.  :urh  P^coa 

relate  to  a 
Tinie  precedent  to  the  Airard  of  the  Cofe,  and  after  fach  Pardon  the  .^p^eVant  defert  his  Arces!,  a^d 
the  Szirirua!  Gsart  award  Cells  ag^a;:::':  him  ;  in  Respect  of  :"i:ch  Desertion  it  fee::a  tfca:  he  irar  hire  3 
Prohibition,  becauTe  the  Pardon  hiving  Quchar^ed  the  Colh,  the  nriSiur,  a  siA  as  tiic  Otesce,  =iaie 
the  Acpeal  tobe  to3oPurpo;e.     atusk.  PLC    ;  94.  cap.  5  7 .  &.  4^ 

S.  A-  yy^lihell^i^pjiidL  [evinced l^thsEcck/u^icilQimmJponns, 
isg  andalUiting  il.  .ii-id^kery  -zcitbC.  and  ror  this  Oiience  was  finti 

tc  ike  A';;/^,  j:.':I  .  :o  do  Ftgsnc:  in  the  Church  &c.    On  which  A. 

praved  a  Prohibit:t>c,  aad  it  was  granted  ,  tor  that  bv  the  GcaeraJ  Par- 
don (which  cjjze  btjcn  ite  Scztince  pa'sci)  the  Onence  was  dilcharged, 
and  conlequentiy  the  Sentence  and  Fine  which  came  alter  were  void  i 
and  it  v/as  held  per  Hutton  J.  That  lijomt  ^  tt€  0^'-:ncis  charged  on  the 
Defendant  were  ccmmittcd a^ter  the  Pardon,  yet  the  Sentence  and  Fine  ia 
this  QjSi  being  ;irr/>e,  the  Pardon  thill  be  a  Dilcharge  thereof  Cro. 
Car.  113.  Trin.4Car.  C.  B.  Peel's  Cale. 

9.  A  &v;c7-a/Pj^rdoaby  .2'.-?  6-"P^ri?5,-3£«f,  tho'  made  the  laii  Dav  oi  .zritlert-zTs 
the  Seliioa;,  lliall,  like  other  Acts,  reloiS  to  tb^jirjt  Day  ef  ScJ^zns.  Bat  J^  -^x"  '=« 
it  is  orherwile  of  a  Pardon  cfGracCy  and  a  Spi-nal  'Purdoii,  which ihall  re-  ^^"^'^^ 
late  only   to  the  SisI  und  D-:€  cf  it.    Adjudged  per  Cor.    Lat.  z'.  "^' 

Boilon's  Cale. 

and  then  a  ^uirs-ej^  e*  tr  Tircnrsizzr.  on  the  -Snrate  nf  V.urv  is  giTen,  sad  th; 
Cfxres  ;  thii  Parrlor,  by  its   isebtic^  ro  the  ifr  Djv  of  the  SellioQS,  fhall  irardDn  the  Ju^r-njat,  tho* 
yWr  f«B»Ei  the.-cto  :  Orhi.-wife  ir  is   if  sfrer  J'JCgtQen-  tbr  the  -jllmoas   Qxiira^i,  a  St^.zju  Pjrdoa  is 
procured.     Per  Cjr.  Lat.  S2.  ia  Sdiori'i  Csit,  dies  56K  2.  5. 

12.  The  Defendant  was  indicted,  and  convicted  cm  the  Stature  of 
Ufurv  i  and  on  a  Certiorari  pleaded  the  Coronation  Pardon,  v.  hich  was 
general,  or  all  alarious  Takings  and  Contracts,  'xitlxut  Piijticn  to  Jiy 
csTtJSU  TiKi  ;  for  this  Reafon  it  fnall  not  di'ctitrgi  tht  Judir.uxt  which 
v.as  r/ct/T  ivrbrt  the  Pardon  ;  but  when  th:  '-"  --  r.  is  of  all  Odences  com- 
mitted before  fiich  a  Day,  there,  tho'  ay.  .nttT^sm^  it  ihali  be  cif- 
charged  by  the  Pardon.     Per  Cur.  Lat,  141.  Daw's  GJe. 

II.  htt'j-niatioH  fcr  Jmp:TtJH^  GA:vj  contra  Stat.  3  E.  4.  cap.  4.  The 
Cafe  was.  That  the  Gloves  were  iii3p-:>rted  betore  the  25th  of  -\Iarch,  to 
■which  Ti.Tie  the  General  Pardon  extends,  bv  which  ail  urdawiai 
Importations  v,-ere  pardoned  ;  and  in  April  tollowing  the  laid  Gloves 
were  tcund  in  the  Hands  cf  the  Detendant  to  be  Ibid.   The  ^rudic/:  was, 

V,l  .:l-:T  tth  r  .  -KT 

i::-'j:i-a  ite  I...^ ,  -..  .- _   ...  .;.  ..    ...- .     __:  :...    z r.ns 

were  divided  ^  Turner  Ch.  B  held,  that  the  Forfeiture  was  not  gone  bv 

I  "      thi 


••     ^  irrer  Ses'.=s 

1  ;>r_ 

Ij^:-  or 

P^rlL 

-TDenr, 

■n  a  C-iToJ 

Fsrax 

c^^  Prerogative  of  the  King. 


the  Pardon  ;  lor  he  laid  the  Importation  was  not  unlawi'ul,  and  by  ii 
there  is  no  Ofience  againft  the  Statute,  but  it  is  the  Selling  or  Deiign  u- 
Sell  which  gives  the  Forfeiture;  but  the  other  Barons  ieemed  to  beot'the 
contrary  Opinion,  inaihiuch  as  the  Selling  is  not  the  principal  O&nce, 
but  it  is  Evidentia  I'atti  that  the  Importation  was  to  that  Intent,  and  U> 
the  Importation  being  pardoned,  the  Goods  lliculd  not  be  forteited.  And 
Thurland  compared  it  to  the  Cafe  where  a  Man  is  Itruck,  and  dies  in  a 
Week  aher,  the  Death  ihall  have  Relation  to  the  Stroke.  And  Sawyer  pur. 
the  Cafe,  Suppoling  thefe  Goods  had  been  feifed,  and  then  the  King  had 
reltored  them,  or  luppofe  the  King  had  relealcd  to  the  Party,  there  they 
ihould  never  be  forleited  by  any  After-Sale  again,  notwithltanding  the 
Statute  faith  as  often,  and  every  Time  they  may  be  lound  &c.  treem. 
Rep.  325.  326.  Pafch.  1674.  in  Scacc.  Harling  v.  Cannon. 


(U.  a.  3)    Private  Pardon.      To    what   the  Words   lliali 

exfe?ui. 

Br.  Patents,  I.  T  F  the  King  pardons  to  the  Jlieiue  of  bis  Tenant  ^  zvho  holds  in  chief,  Alt 
pl.  102.  cites  \^  Alienations,  by  tliis  the  Tenant  cannot  alien,  but  by  this  the  Fine 
£■•  C.  for  Alienation  is  pardoned,   notwithftanding  that  he  did  not  pardon  the 

Fine  but  the  Alienation.  Br.  Charters  de  Pardon,  pl.  26.  cites  14  H.  6.  26. 
The  King's  2.  Sheriti'made  a  Falfe  Return,  and  the  King  £x  mero  motu,  fpeciali 
Paidon  ot  all  Gratia  &  certa  Scientia,  pardoned  all  Mifprifions,  Offences  and  Contempts ; 
Miffnftcm,  after  this  Pardon  was  obtained,  the  Judges  of  P).  R.  fined  him  ioo  1. 
^mt'enrptT  fo""  '^his  falfe  Return  ;  the  Fine  was  eltreated  into  the  Exchequer,  and 
pardons  an  the  Sherift^  was  taken  in  Execution,  and  committed  to  the  Fleet ;  he 
Ogetice  fued  a  fpecial  Writ  upon  this  Pardon  in  the  Nature  of  an  Audita  Quere- 

agahift  any  jg^  ^ompriling  all  this  Matter,  and  returnable  in  the  King's  Bench.  Re- 
flr't'lie  ^  folved  that  the  Patent  by  the  faid  general  Words  pardoned  the  faid  Of- 
judges  in  fence,  and  that  becaufe  the  Pardon  preceded  the  fetting  of  the  Fine, 
the  Exche-  therefore  the  Fine  may  be  [is]  difcharged.  After  Judgment,  and  before 
quer  Cham-  ^j.  ^j-^gj.  Execution,  the  King's  Pardon  difcharges  the  Debt  or  OHence, 
iTi  pl  "-^  ^"^  Execution  oi  it,  and  is  pleadable  agaiult  the  King.  Jenk.  109.  pl. 
cites  3;  H.'  10.  cites  36  H.  6.  24.  Quatermain's  Cafe. 
6.4. 

3.  Information  in  the  Exchequer/or  Shipping  oflVeol  to  other  Place  than 
'^asalfoin  Calais,  againft  the  Statute  &c.  the  Defenda?it  pleaded  Pardon  of  the  King 
the  Pardon  defctla  Pads,  which  per  Choke,  is  only  Surety  of  the  Peace,  and  all 
Omnhnoda  Actions  which  are  Contra  Pacem,  and  this  A6lion  is  not  Contra  Pacera. 
Demand.!,      Br.  Charters  de  Pardon,  pl.  24.  cites  37  H.  6.  4. 

J)eh,ta  &  .    .  ,       TL-j  '    J^         ^  ^1  T 

Forisj'aci.     And  this  is  good.     Ibid. 

Br.  Preroga-  4.  If  the  King  pardons  0;«7//V;.W^  7)c';«^/;(t'^j  yet  Inheritance  is  net  par- 
tive,  pl.  62.  dgfied,  quia  Rex  ;  and  yet  in  the  Cale  of  a  common  Perfon,  Rent, 
citesS.  c      j^^jght  ot  Entry,  and  every  Thing  which  is  implied  in  it  is  determined  j 

contra  in  Cafe  of  the  King.     Br.  Releales,  pl.  44.  cites  6  H.  7.  15. 
Soz  Pardon       5.  The  King's  Pardon  of  all  Offences  and  Mij deeds,  contra  formam  qiic- 
ofa  Knfame  yiifjjiumqiie  Statiitonwi,  extends  to  the  Offence  oi  Inclofures  againlt  the  Sta- 
doesnot^ex-  ^^^^  ^^  ^  ^  ^    ^^^  j^.  ^^^^  ^^^  extend  to  the  Continuance  of  the  Inclofiire 

Continuance    after  the  faid  Pardon,   as  of  a  Nufance.     Jenk.  198.  pl.  13.  cites  10  H.  8. 

of  the  Nu- 
fance after  the  Pardon  ;  for  this  Continuance  is  a  new  Nufance,  as  the  Inclofure  is;  for  this  is  a  Depo- 
pulation continued.     Jenk.  198.  pl.  19. 

S.  P.  Jenk.  6.  If  the  Heir  of  the  King's  Tenarft  x/Y/'/V;  Age,  enters  and  cakes  the 
254.  pl.  9.—  Profits,    and  the  King  pardons  him  all  Intrn/ioHs  \  this  il-.all  icr\c  him 

for 


Prerogative  of  the  King.  35 

for  Intni/ions  and  Mifne  Profits  tiiitil  Office  fonmi,  buc  not  ibr  the  Iliiies  •'^'i;''.^''.  lyS. 
altervvards,  neither  does  it  dilchiirge   him  oi  Li\ery  ,  but  it'  he  were  ^"1  ,'',\'yj'|"',-^f ■'"■ 
/?<// u-ij^f  when  he  fo  intruded,  and  obtains  a  Pardon  ol'iiU  Intrulions  be- (^.;,^.j,  tjn  ti,c 
fore  Ofiice  found,  this  difeharges  him  of  Intrulion,   .Mefiie  Rates,  and  Duteoftlu- 
Livery.      lenk.  198.  pi.  13.  cites  lo  H.  8.  Pardon;  but 

■'         ■'  for  all  the 

Time  that  lie  occupies  after  his  full  Age,  he  is  chargeable  to  the  King  ;  but  where  Heir  is  ot  full  A;;-; 
at  the  Time  of  the  Pardon,  he  fliail  go  ouit,  becaulc  the  King  has  no  Title  to  intermeddle  with  t;i-.; 
Land  after  the  Pardon  ;  and  fo  a  Diverilty  where  the  Heir  is  of  full  Age,  and  where  within  Age  ac 
the  Time  of  the  Pardon  &c.  quod  nota.  But  the  Reporter  makes  a  CVi.cre;  for  it  (trcms  that  the  Par- 
don made  to  the  Heir,  to  whole  Lands  the] King  had  once  Cauti;  of  V\'ardfliip,  fliall  dil'charge  the  Heir 
as  well  where  he  is  of  full  Age,  as  where  lie  is  within  Age  at  the  Time  of  the  Pardon;  and  that  tliis 
Pardon  countervails  a  Special  Livery,  and  the  Eifect  of  a  Special  Livery  is  no  other  in  Ertect  but  Li- 
centia  ingrediendi  See. 

7.  A.  purchafed  Land  to  him  and  Wife^    and  to  his  right  Heirs  ;  the  S'-!-!i  Pardon 
Lands  were  held  of  the  King  in  Capite  ;  A.  had  no  Licence;  the  King  ^1.^^."^°^  ,.g 
by  a  Coronation  Pardon  pardoned  A.  Onincs  Altcnationcs^  Tranlgrelliones  &  {[^^  Husband 
Oifenfas  pro  qualibet  i\lienatione  libi  faft.     This  Pardon  pardons  this  purchafes  to 
Alienation  ;  for  the  Word  Alienation  properly  goes  to  the  Fee,  and  a  Co-  him  and  his 
ronation  Pardon  ought  to   have  a  iavourable  Conftruction.     By  all  the  }  .  , . 
Judges  of  England.     Jenk.  222.  pi.  67.  cites  3  Eliz.  D.  196.  Sir  Robert  ibi/_ 
Catlin's  Oafe. 

8.  M.  was  attainted  in  a  Premunire,  and  the  King  pardon'd  him  Oiunes 
^/ingnlas  •TranfgreJJioncs,  OJJcnfas  S  Contemptas.  And  the  Qucftion  wds. 
Whether  by  this  Pardon  the  Judgment  in  Premunire  was  rekafed  >  And 
the  Court,  after  giving  M.  fome  Advice  to  be  more  careful  for  the  future, 
and  to  take  Heed  of  running  into  fuch  high  OrfenceSj  allowed  the  Par- 
don.    2  Bulll.  299.  Mich.  12  Jac.  The  King  v.  Sir  Anthony  Mildmay. 

9.  A.  became  bound  to  B.  in  a  Statute  of  10000  1.  and  after  was  found  And  it  was 
in  Arrear  to  the  Crown  22500  1.  as  Collector  of  the  new  Impoll:  :  Up  mi  f">"'^j "" -^r 
A.'s  Death  his  Lands  were  extended  lor  the  King's  Debt,  which  were  j°,jj^£)'^(,j  *^ 
afterwards  granted  by  the  King  to  J.  S.  in  Truft  lor  C.  A.'s  Heir  ;  then  the  Crown 
comes  the  Act  of  General  Pardon  13  Car.  2.  wherein  <^//  Accounts  of  Re-  was  not  par- 
^reivers,  Co/kiJors  &c.    are  excepted  ;  but  it  is  provided,  that  the  Heirs, '^°"f'|' "°.'^- 
Executors  &c.  of  Accountants  ihall  not  be  charged,  except  for  Sams  re-  ^g'^ft'ex"^ 
r/iaining  on  Accounts  already Jfated.     C.  conveys  to  D.    and  afterwards  in  cepts/ie.^c- 
the  Exchequer  pleads  the   Pardon  in  Difcharge  of  the  Crown's  Dthx.^  counts  of  alt 
which  is  confefs'd  by  the  Attorney  General,  and  Judgment  given  accord-  ^^^'"''"•y-' 
ingly  :  Upon  an  Ejectment  againit  the  Executor  ot"  B.  who  had  extended  tear/d'arv 
the  Lands  upon  the  Statute  tor  the  looool.  it  was  adjudged  that  theW^ord  Suhjldics, 
(^Accounts)  in  the  Exception  of  the  Aft  of  Pardon  extended  to  Sur,is  due  on  neiv  imtoft. 
Accounts  Jlatcd^  as  appears  by  the  fubfequent  Provilb,  in  Favour  of  the  "r'J?-^  cT'\ 
Heirs  &c.  of  the  Accountants,  tho'  properly  a  Sum  due  on  an  Account  is  ",,„  ' .    '    ; 
not  an  Acccunt,  as  was  adjudged  on  the   Statute  ot  Lmiitations  on   the  D,-,y  tf  Jan. 
Words  (Merchants  Accounts.)     3  Lev.  135.  Travcll  v.  Carteret.  i64.i.w"here- 

as  this  Mo- 
ney ivcs  received,  and  the  Account  ftated  in  165S.  for  that  the  Words  a]'ler  the  50//)  Jamtary 
1642.  relate  only  to  thofe  next  antecedent,  vii.  Rents  of  King  Charles  I.  and  the  former  Part  of 
the  Claufe  concerning  the  .Accounts,  fliall  be  taken  abfolutely  ir/z/Y/r/  any  Liwitnlion  to  the  7ime  ;  and 
that  for  two  Reafon;..  I.  Becaufe  the  Rebels  in  the  Year  1641.  begun  to  fe  ;uefter  the  Rents  of  the 
Crown.  And  2dly  Eecaufe  the  Rents  of  the  King  is  the  /.»/?  Antecedent,  to  which  that  which  folIoAS 
«U2ht  to  relate.  Per  threeJulHces  again.i  Levins  J.  5  Lev.  1 5  s.  Mich  3  5  Car.  z.  C.  B.  Travel  v.  Carteret. 


CU.a.4) 


q6  PreiX)gative  of  the  King. 


(U.  a.  4)     Pardon.     Good.    In  refpecl:  of  the  Words. 
In  Crlimnal  Cafes. 

I.     A   MAN  was  conviBed  of  Robbery  at  the  Suit  of  the  Part)\    which 

_/\  Partv  rcleafcd  him  the  Eacci'ttoii^  -drnX  t\vi  Ktng  rccituigthe  jittain- 

rt'c;-,  pardoned  him  the  Excattion ;   and  becaule  he  did  not  pardon  the  Felony 

by  exprefs  IFord^,  the  Charter  was  dilliUowed.     And  lb  it  feems  that  the 

I'arcy  by  the  Pardon  of  the  Plaintiii'ihall  not  go  quit,  without  Pardon  of 

the  King  i  quod  vide.     Br.  Corone,  pi  24.  cites  8  H.  4.  22. 

Serjeant  2.  It  a  Man  kills  another^  and  the  King  pardons  all  Felonies,  this  fliall 

.^^^^']"r.       not  lerve ;  lor  it  fhall  be  intended,  that  the  King   was  deceived  in   his 

to  be  1.. id       Cirantj  and  did  not  know  the  Heinournels  j  per  Martin.     Br.  Charters  de 

covvr.Esa      Pardon,  pi.  19.  cites  b  PI.  6.  20. 

t;cncialRule 

'in  m^  ny  Cooks,  That  wherever  it  may  be  reafonably  intended  that  the  King,  when  he  granted  a  Pardon 
of  Felony,  was  net  fully  nppriz'd  both  of  the  FIcinoufirefs  oj  the  Crime,  and  aljj  /'oiy  fnr  the  P.jrty  flaiids  ccn- 
itclei'.  ticieofon  Reiord,  the  Pardon  is  void,  as  being  gained  by  Impolition  on  the  King.  And  this  i!j> 
verv  agreeable  to  the  Reafon  of  the  Law,  which  (cems  to  have  intrullcd  the  King  with  this  High  Pre- 
rogative, upon  a  fpeeial  Confidence  that  he  will  pardon  thofe  only  whofe  Cafe,  coilld  it  have  been 
forefeen,  the  Law  it  (elf  may  be  prefunicd  \vil!i:ig  to  have  excepted  out  of  its  general  Rules,  which  the. 
W  it  of  Man  cannot  pofTiblv  make  fo  perfect  as  to  fuit  every  particular  Cafe  :  And  upon  this  Ground; 
tni.s  Cafe  was  determined  ;  but  fays  that  he  was  indiiited  by  thefe  Words,  That  he  liad  flain  a  Man  for 
having  fucd  him  in  the  King's  Court,  which  Brooke  in  his  Abridgment  of  the  Cafe  omits.  2  Hawk. 
PI.  C' 5^:5.  cap.  5;.  S.  S. 

S,  P.  Br.  Pa-  3.  J;id  per  Strange,  if  a  Man  be  attainted  of  Felony  by  Oiithnvry  or  Ver- 
terts,  pf  15.  ^^Y?^  and  the  King  pardons  him  all  P'elonies,  this  is  not  good  for  the 
per  Stranre  i^^-i^o"  aforelaid  ;  and  therefore  it  is  ufual  to  mention  all  Judgments^  Exe- 
If  a  Mjii   ctitioHs^  Pains  and  Penalties  of  the  fime.     Br.  Charters  de  Pardon,  pi.  19. 

be  .djUi'.ired    cites  S  H.  6.  20. 

for  Felony, 

and  after  the  King  p.-rrrfow/  him  all  Manner  of  Felonies,  this  is  not  good,  bccaufe  he  d-d  7:ot  pardon  all  Exe- 

t^ticns  of  Felony.  Per  Choke  J.  quod  noa  ncgatur.     Br.  Charters  de  Pardon,  pi.  44.  cites  6  £.  4.  4. 

.E«/ifit  had  "..  Pardon  was,  P'erdonavim/is  R.JF.  J.B.  P^.C.  de  omnibus  Feloniis, 
hun  Perdon- p£}- pr^ediclos  R.U'  J-B.  R.  C.  i>el  per  altf]!'.os  ccrnmfa^.  And  per  Tre- 
avmius  R.li' ■  lyi^iiie  and  Piuliey  J.  the  Pardon  is  not  good,  becaule  i-'^/owj'  is  les'eral,  and 
^e  "omnit's"''  Cannot  be  joint  3  and  therefore,  becaule  the  Pardon  is  joint  in  the  Premtf- 
Felctiiisfac-  fes,  it  is  not  good,  tho"  It  h-z  Jcv'.ral  in  the  fiibfeqncnt.  And  after  Fairfax 
tis  &c.  per  went  to  the  Jullices  of  C.  B.  for  their  Advice,  who  fiid  that  it  cannot  be 
^'r''u'-'Ti  Z'^oA.  as  it  is  written  ;  and  after  it  was  amended  in  the  Chancery :  But 
p'r  %B  vet  Srooke  fays  he  has  heard  that  the  Book  is  mifprinted,  and  contrarv  to  the 
R.C.  irf/ ^s,- Record  ;  rbr  the  firll  Pardon  was  good,  by  Realbn  of  thofe  Words  (Vcl 
alios  Sec  thiseorum  aliquem)   in  the  fubfcqucnt  i  quodnota.     Br.  Charters  de  Pardon, 

^ood''"for      P^-  ^  ^-   ^^^^^  22  E.  4.  7. 

tiiis  is  feveral.     Br.  Charters   de  Pardon,   pi.  51.    cites   zz  E.  4.    -■ .Serjeant  Hai\kins   favs 

it  feems  agreed,  Th.u  the  Pardon  of  A.  B.  a'-.d  C  of  all  Felonies  by  them  done,  without  adjdin.T,  <.Jr 
any  of  them,  is  void,  becaufc  it  fuppofes  tliein  pintly  Guilty,  and  extends  to  no  other  but  foinc- 
Felonies,  whereas  all  Felony  is  feveral  in  e.jch  Offender,  and  cannot  be  joint.  And  the  Year- Book  of 
22  E.  4  goes  fo  far  as  to  hold,  that  tlie  Addition  of  the  Words  (Or  any  of  them)  will  not  help  a  Pardon 
beginning  wiih  iuch  joir.t  Words;  hut  it  is  (aid  to  b:  mifreaorted,  and  contrary  to  the  Roll,  and  Icems 
to  be  agreed  not  to  be  Law  at  this  Day.     z  Hawk   PI.  C'..  580.  cap   ;-.  S.  24. 

5  A.  commits  Trcafon  or  Felony  i  the  King's  Pardon  of .-.-// 0^fV/vr« 
does  not  pardon  '/reafon  or  Felony:  The  Law  requires,  in  the  Pardon  of 
Capital  Oifences,  a  particular  Mention  of  the  Nature  of  the  Crime,  Ne 
Miileficia  remaneant  impunita,  and  the  King  be  deceived.  A  General 
Pardon  of  all  Fclonws  is  good  lor  any  Felony,  but  not  for  Treafon.  Where 
u  Felon  is  attainted,  a  I'ardon  ot  the  Felony  will  not  lerve  him  without  ;i 
j^afdon  ofche  Attainder  alio.     jenk.  197.  pi.  5.   cites  2  fl.  8. 

6.  If 


Prerogative  of  the  King.  ^7 


6.  If'thb  King  pardons  A.  a  Felony  whereof  he  Jlands  indiBcd^  or  indiRed 
and  attainted  &c.  and  in  Truth  he  is  not  indtClcd  nor  attainted  &c.  this 
is  Exprcl/iofalji^  and  makes  the  Pardon  void      3  Infl.  238. 

7.  D.  was  indiftcd  of  Felony  and  Murder,  and  prayed  to  have  his 
Pardon  allowed.  Per  Withens  and  HoIIowav',  Felo/tica  ititerfeilio  is  well 
enough,  thd' MiirdrtimhQ  omitted ;  but  the  Ch.  J.  contra.  Manflaughter 
is  Fclonica  interleflio,  but  at  another  Day  (the  Ch.  J.  being  abfcnt)  it 
was  allowed.     Comb.  39.  Mich.  2jac.  2.  B.  R.   The  King  v.  Davies. 

8.  One  outlawed  in  an  Appeal  of  Felony,  prayed  his  Clergy^  which  On  the  De- 
was  fo.'/A^cr/^/iJi^^/t'^  o«  .^aw/^?  c/ii/Y^Mj;  &c.  and  afterwards  purchald  <^  ^f^l  1^^''''^ 
Pardon,  and  fued  Scire  Facias  againlt  the  Apellant  &c.  it  is  faid,  that  the  tobcadmir 
Pardon  was  not  allowed,  becatife  tt  made  no  ALntionoftbe  Bigamy.  2  Hawk,  ted,  that  the 

PI.  C.  383-  cap.  37.   S.  8.  Pardon  was 

not good, be- 
caafe  it  made  no  Mention  of  the  Bigamy  ;  and  yet  it  is  faid,  upon  the  Non-appearance  of  any  one  to 
maintain  tlie  Appeal,  the  Pardon  was  allowed  ;  Eigo  qusre.  z  Hawk.  PI.  C.  383  cap.  37.  S.  8.  Marg. 
cites  1 1  H.  4.  1 1 .  pi.  24  &  48.  pi.  23. 


(U.  a.  5)     Pardon.     Good.  In  refpe^t  of  the  Words. 
In  Ccijes  not  Crminal. 

I.  TN  Attaint  the  Defendant  pleaded  Outlawry  in  the  Plaintiff,  Judg- 
J^  mcnt  if  he  iliall  be  anfvvered  ;  The  Plaintiff'  fiew'd  a  Pardon^ 
which  was,  Ita  quod  Jlet  retfiis  in  Carta  ;  by  which  Finch  laid  that  there- 
fore this  is  Conditional,  and  faid  that  where  the  Defendant  recovered 
againlt  the  PlaintilF  in  the  firft  A6tion,  becaule  he  has  not  madeGree  to  him, 
there  the  Pardon  ilrall  not  fcrve.  Filh  faid  the  Pardon  is  not  to  be  re- 
pealed by  any,  unlels  by  you,  and  by  our  Suit  we  are  to  fet  alide  all  the 
firlt  Record;  and  therefore  did  nor  allow  the  Saying  of  the  Detendant, 
but  the  Charter  of  the  Plaintiff  was  allowed.  Br.  Charters  de  Pardon,  pi. 
34.  cites  30  Air  20. 

2.  A  Man  was  bound  in  a  Recognizance  to  keep  the  Peace,  and  the  Defen- 
dant in  Scire  facias  upon  the  Recognizance  pleaded  Pardon  of  the  King 
of  all  Debts,  Accounts  and  Recognizances,  and  the  Pardon  bore  Date  after 
the  Recognizance,  and  before  the  Forfeiture;  and  the  Opinion  of  the  Court 
was,  that  the  Pardon  is  good ;  as  Releale  o^  an  Obligation  before  the 
Day  of  Payment  is  good.  Br.  Charters  de  Pardon,  pi.  17.  cites  11  H.  4. 
43. — Contra  per  Prifot.  37  H.  6.  4. 

3.  The  King  pardoned  h.  B.  omnimoda  Debita  See.  etc  mero  Motti  &  The  King 
certa  Scientia;  and  after  Debt  was  demanded  againjl  him  in  the  Exchequer,  P^^'^'>^'i 
as  Sheriff  of  C.  and  he  pleaded  this  Pardon,  with  Suggeftion  that  he  ^'^J' only)  <t5/^' 
Sheriff' 8s.c.  And  by  fome  Jullices  the  Pardon  is  not  good  j  for  it  is  not  de  Oeks  and 
Communi  Gratia,  nor  General  Pardon ;  and  per  Brian,  Capi  Debet  juxta  ■^'■'■w?;/^,  and 
intentionem  Regis,  &  non  ad  deceptionem  Regis ;  and  here  he  is  not  f^ewasSheriff 
named  Sherift'in  the  Pardon,  and  therefore  it  lliall  be  intended  his  proper  °l^^^^  h"wa«~ 
Debt,  and  not  as  Sheriff:  BucperHulFey  Ch.  J.  and  feveral  other  Jullices,  ex  certa 
the  Pardon  ihall  ferve  the  Debtee  as  Sheriif  in  the  firft  Cafe,  becaule  it  is  Scientia  & 
ex  mero  Motu  &c.  for  it  is  a  General  Pardon  ^  but  Pardon  made  upon  Sag-  "'""  -^1^'"'  "J 
geffion  or  Ratione  officii   ^lall  be  taken  Jiritily  according  to  the  Letter  ;  but  wkhout^be^ 
after  the  Pardon  aibrefaid  made  to  B.  was  allowed  by  the  Barons  ot  the  ing  named 
Exchequer.    Er.  Charters  de  Pardon,  pi.  36.  cites  i  H.  7.  10.  Sheriff    ^v. 

Charters  de 
Pardon,  pi.  58.  cite.'!  2  R.  3.  7. T,::t  if  J.  N.  be  inczhted  to  the  King  by  two  Offices,  and  makes  Execu- 
tors,  and  diev,  :;"d  the  Kinp:  pard^'ris  the  txectitcrs  l:y  their  proper  Names,   Omnia  Dehita  fua,   and  docs  not 
fiy  Exccutoribi'b  Src;  this  ihall  not  ferve  them  as  Executors  ;  per  Brian.     Ibid.     Br.  Ciiarters  de  Par« 
don.  pi.  36.  citcj  I  H.  7.  10. 

/i^..  If  the  Iving  grants  to  the  Merchants  to  tranfport  Wool  withotft  paying 
Cujiomy  this  is  a  good  Pardon  of  the  Cuilom,  per  Jufliciarios ;  contra  if 

¥».  the 


c^8  Prerogative  of  the  King. 


to  ill. 


the  King  licences  the  Merchants  to  export  W^ool,  and  retain  the  Cullc 
yet  the  Cuftom  iliall  be  charged  ;  lor  this  is  no  Pardon  in  ic  Ml;  noui 
di>.eriitatein   indc  bene.     Er.  Charters  de   Pardon,    pi.   6y.    cites  i  H. 

7.    34 
But  P.i'-don        5.  Jc  was  doubted  if  Pardon  of  the  King  of  all  Adanrier  oj  Demands^  be 
u?a!iDehis    good  ur  not.     Br.  Charters  de  Pardon,  pi.  75.  cites  II  H.  7.   10. 

is  <^ooa  by       ° 

the  King  ;  and  vet  this  does  not  extend  to  Joint-debts  that  tliis  Perfon  and  another  owe  ;  and  per  Fair- 
fax, tills  Pardon  does  not  extinguifh  Relief  of  the  King.     Ibid. .i'W  per  Brian  and  Vavilbr,  Par- 

tionot'tlie  King  !>/ ,j!l  JHhns  is  not  good.     Ibid. 

D.  2^rt._  pi.        6.  The  Tenant  of  the  King  dies  feifed,   and  an  ();Tice  is  found  accord- 

^■.  Tnn.  II  ingly,  and  the  Heir  had  enteral   and  taken 'the  Profits  before  the  Office 

J.  (j        ^     lound,  and  afterwards  the  King  pardons  all  I Mfni/iovs ;  this  is  not  good 

without  thefe  Words,  JJpies  and  Profits  &c.   Keilw.  88.  b.  Hill.  22  H.  7. 

7.  B.  was  indided  for  Strikifig  in  WcJhuinJJcr-Hall  near  the  Side  of  the 

Ear  o'i  C.  B.  Ikting  the  Courts,    and  obtained    his    Pardon  ;    and   the 

Queition  was,  if  it  ihould  be  allowed,  becaufe  it  varied  from  the  Indi£t- 

nient ;  tor  the  Indiiimeiit  was^  Verberavit  -vulneravit  i3  fcrciiffit^  and  the 

PdrdoH  omitted  PerciiJ/it ;  and  yet  good  per  Cur.  for  it  is  in  the  Recital, 

and  if  no  Recital  had  been,  )et  it  ihould  ha\e  been  good,  and  Vidiier.  is 

larger  than  Perciiffit ;    but  if  it  was  not,  there  are  general  VV^ords,  viz. 

Omnia  Malefic,   in  Indiclamento  prsedicl.  contin.     Sid.   211.  Trin.  16 

Car,  2.  B.  R.  The  King  v.  Bockman. 


(Q.  a.  6)     Pardon.    Good.     In   Refpefl:   of  the  Time  of 

the  Makh/g:_ 


e> 


■A' 


Pardon  made  hy  E.  4.  before  he  ivas  aBually  A'/;;*-,  was  void  even 
^  ^  after  he  came  to  the  Crown.  Hawk.  PI.  C.  36.  cap.  17.  S.  13. 
2.  li  the  'jfeiiaiit  of  the  King  diffeifes  me,  and  dies,  his  Heir  within  Age, 
•and  /  enter,  and  the  King  pardons  me  all  Entries  upon  him,  and  after  Of- 
fice is  found  for  him,  yet  the  Pardon  is  good  ;  but  P  ardon  after  Office  found 
is  'void  ;  for  he  ought  to  traverfe,  or  make  Petition  or  Monllrans  de 
Droit,  Per  Choke  J.  But  Per  Markham,  the  Pardon  is  not  good  before 
the  Office  nor  after,  which  Brooke  fays  does  not  leem  to  be  Law  ;  for  ic 
feemsthat  ic  is  a  good  Pardon.     Br.  Charters  de  Pardon,  pl.  43.  cites  5 

E.  4.  4. 

jiut  if  he  3.  Tenant  of  the  King  dies  feifed,  and  his  Heir  enters  ivithout  Liz'ery ; 

f.irdonshm    Per  Philpot,   if  the  King  pardons  him  beJo>-e  Office  found  of  the  IntriiJioHy 
iifter  the  Of-    ,        j^^  Inttufion  and  the  lifues  are  pardoned.     Br.  Charters  de  Pardon, 

■fice  tetinii,  the      ,       „        •  ,  r- 

F>»efor  the      pl.  48-   ^^^^^  16  II-.  4.  I. 

■pardoned,  per  Philpot  ;  but  per  Morton,  After  Office  found  he  ought  to  have  Special  Pardon  ;  qusie. 
Br.  Charters  de  Pardon,  pi.  4S.  cites  16  E.  4.  i. 

4.  The  Heir  before  Office  found  may  diflrain  the  tenants,  and  Pardon 

made  to  him  before  Office  of  Intrufion  found  is  good,  but  Office  may  be 

found  after,  notwithftanding   the  Pardon  ^  but  this  Ihall   not  ferve  the 

King  but  lor  the  Profits  before  the  Office,  per  HulTey.     Br.  Charters  de 

Pardon,  pl.  39.  cites  3  H.  7.  3. 

Br.  Patents,       5.  The  King  may  pardon  Things  which  are  in  Pxnam  Pecimiarlam  h:- 

pl.  51.  cites  fQfgthe  Jif  done  j  contra  of  voluntary  Efcapes,  Felony  Sec.     Br.  Ciiir- 

^•*^"  ters  de  Pardon,  pl.  41.  cites  3  H.  7.  15. 

(U.  a.  7) 


Prerogative  of  the  King".  qp 


(U.  a.  7)     U^Jiit  the  King  may  pardon. 

I.  2  Ed.  3.2.  f~^Hartcrs  of  'Pardon  for  MiWjlaughtcrs^  Robberies,   Felo-  j^  confirm'd 
\_j  iiies,  and  other  T'rifpajfes,  Jh  all  not  be  granted  but  "where  \,^  s,EAr^.\%, 
the  Kin^  ',nay  do  n  failing  his  Oath,  ikz.  where  one  Man  kilkth  another  in  and  10  Ed. 
his  ozi-n  Defence,  or  by  a  Misfortune.  3,  ^-  ""^ 

The  King 
may  pardon .) finder,  tho'  lie  cannot  difpenfe  with  it  ;  per  Hales  Arp.  March  2 1  q.  Trin.  i S  Car.  in  R  icke- 
bie's  Cafe— Holt  Oh.  J.  laid  there  was  a,s  good  Reafim  why  the  King  fhould  pardon  an  Indictment  of 
Murder,  which  h  hi,<  Suit,  as  why  the  Subject  fliould  difcharge  an  Appeal,  which  is  the  Suit  of  the 
Subjeft;  and  that  the  King  was  by  his  Coronation  Oath  to  fliew  Mercy  as  well  as  to  do  Juftice.  And 
he  laid  that  this  Statute  of  2  £  ;.  cap.  ;.  meant  ciily  that  the  King  jhould  be  fully  hiformed  before  he  par- 
doned any  Fekj.y-;  and  that  the  Reafon  of  that  and  other  relhitcivc  Statutes  was,  for  that  after  the  Sta- 
tute of  Glouceftcr,  cap.  0  upon  a  Murder  done,  it  was  ufual  to  apply  to  the  Lord  Chancellor,  and  ob- 
tain a  Pardon  by  undue  Means  and  falfe  Sug<;eftions,  with  general  Words  in  it  ;  and  this  was  the  Oc- 
cafion  of  thofe  rellridtive  Statutes,  that  Application  be  made  to  the  King  in  Perfon,  to  the  Intent  the 
King  himlclf  might  be  appris'd  of  the  Matter.     2  Salic.  499.  Hill.  5  W.  &  M.  B.  R.  The  King  v  Par- 

fons. S.  P.  4  Mod.  6;.  JSIich.  5  W.  &  M.  B.  R.  in  Cale  of  the  King  v.  Anonymus. 

Serjeant  Hawkins,  after  reciting  this  Statute,  and  adding  that  it  is  confirmed  by  feveral  fubfequent 
Statutes,  lays.  That  there  being  no  Precedent  in  tlie  Regilter  of  a  Pardon  of  any  other  Homicide,  but 
fuch  as  is  done  either  in  Self-Dcfence,  or  by  Mifadventure,  or  by  Infants  or  Madmen,  fome  have  gone 
fo  far  as  to  hold,  that  the  King's  Pardon  of  any  other  Homicide  is  not  good,  onlcfs  it  be  confirmed  by 
Parliament,  or  at  leaft  have  a  Non  obftaiite.  But  the  Serjeant  fays  this  feems  contrary  not  only  to  the 
general  Tenor  of  the  Book.s,  which  clearly  admit  the  King's  Power  to  pardon  any  Homicide  in  general, 
but  alio  to  the  exprefs  Purport  of  15  R.  I.  which  by  fhcwing  in  what  Form  the  King  fhall  make  a 
Pardon  of  Murder,  plainly  allows  that  he  has  a  Power  to  make  it :  Befides,  the  fame  Reatbns  hold  as 
ftrongly  againft  the  King's  Power  to  pardon  Manllaughter  as  Murder,  which  yet  he  fays  he  never  knew 
difputed.  However,  it  leems  reafonable,  that  thus  much  at  leaft  be  allowed  to  follow  from  the  Argu- 
ments above  mentioned,  that  too  great  Caution  cannot  well  be  taken  in  the  Grant  of  Pardons  of  any 
Homicide,  that  there  be  fome  fuch  favourable  Circumftances  in  Extenuation  of  it,  as  may  bring  it  fome 
Way  within  the  Equity  of  the  Cafes  in  the  Regifter,  and  thefe  old  Statutes.  2  Hawk.  Pi.  C.  3S5. 
cap.  5;.   S.  14. 

2.  In  ^^/)ptW  by  the  Parry  of  the  Death  of  his  Father,  the  King  can-  In  Appeal  of 
not  pardon  the  Execution  3    quod  nota.      JBr.    Appeal,    pi.   150.  cites  Death,  Rob- 

14  E-  3-  &a 'the"'"' 

King  cannor 
pardon  the  Defendant;  for  the  Appeal  is  the  Suit  of  the  Party  to  have  Revenge  by  Death,  and  whether 
J  he  Defendant  be  attainted  by  Judgment  &c.  or  by  Outlawry,  the  Pardon  of  the  King  fli  all  not  dif- 
charge the  Defendant.     5  Inft.  2;;. 

Serjeant  Hawkins  fays,  A  Pardon  of  the  King  will  not  be  any  Ear  to  an  .-appeal,  except  only  where  it 
Is  carried  on  at  the  Suit  of  tie  King  after  the  Nonfuit  of  the  Party,  in  which  Cafe  it  may  be  barr'd  by  a  Par- 
don, in  die  urtie  Manner  as  an  Indiitmcnt.     zHawk.  PLC.  ^92.  cap.  5;.  S.  55. 

3.  In  Jttaint  by  A.  againfl  the  Party  and  the  Petit  Jury  ;  cgainjl  the  ♦S.P.  2Salk. 
Pa-ny  to  have  Refitution  ■■,  this  the  King  cannot  pardon  ;  againji  the  Petit  ''f'^.j  '^'' r'w 
Jury  by  the  Common  Law,  that  they  Ihould  lofe  Liberam  Legem  &c.  The  King  v 
this  the  King  may  pardon,  becaufe  it  is  a  Punilhment  exemplary  to  de-  Crosby, 
ter  others,  and  tendeth  not  to  the  Reltitution  or  Satisfaction  of  the 
Plaintiff.     3  Inft.  237.  cites  13  E.  4.  5. 

4.  The  King  cannot  pardon  the  Duty  of  the  Party.  Br.  Charters  de  p' A*^'"". 
Pardon,  pi.  24.  cites  37  H.  6.4.  _  _  _  -/dtes's.t 
. — —Wherever  an  Aft  of  Parliament  gives  a  particular  Intereft',  or  Right  of  Aftion  to  the  Party  griev- 
ed by  the  Breach  of  it,  as  the  Statutes  of  Mortmain,  which  give  an  Entry  to  the  next  immediate  Lord 
for  an  Alienation  to  a  Corporation,  the  Statutes  againft  Maintenance,  Forcible  Entries,  Carrying  Di- 
ftrclTes  cut  of  the  Hundred,  Suffering  one  in  Execution  to  elcape  &c.  which  give  an  Action  to  the 
Partv  grieved  by  the  Oftcnce  prohibited,  it  fecnis  to  have  been  always  agreed,  that  no  Charter  by 
the  King  fan  be  of  any  Force  to  bar  the  Right  of  the  Partv  grounded  upon  fuch  Statute,  becaufe  it  is 
a  fettled  Rule,  that  the  King  cannot  prejudice  the  Intereft  of  the  Party      2  Hawk.  PI.  C.  390.    cap. 

5.  ..-^//i  where  the  ¥.\r\g  grants  to  mc  all  Fines  and  .imerciatnents  in  '^I'^o'th: 
fuch  a  Place.,  the  King  cannot  pardon  them.     Ibid.  King  has 

-'  J  o  r  grantea  linei 

to  a  Corporation,  he  may  however  pardon  ih'iO^er.cc     Rtfolved  per  Cur,     Skin.  6-6.  Hill.  S  W.  5. 
B.  R.  The  King  v.  Bowerbank. 

6.  Be' ore 


^o  Prerogative  of  the  King. 

JBr.  Chai-ters  6.  Ecjorc  PopitldT  A^iicH  Irciight,  the  King  n:a)'  pardon  all  the  Forfei- 
dc  Pardon,  ^qj-cs  and  Pains  ;  bnt  after  liilbniuuion  or  Action  brought,  the  Ku/g  can- 
pi  a 4-  "•«  jjf^  ^p_..(igfi  h lit  only  his  ozvn  Part,  and  not  the  Part  vi  the  Party.  Br. 
S  p'  Br.       Action  Popular,  pi.  3.  cites  37  H.  6.4. 

Ctnvtcvs  de 

Pun'on,  vl.  i".  cites  1  H.  7.  5.    For  after  Aftion  brwvght,  the    Party   is  intit'cd  to  his  proper  Debr. 

-!-Br.  Action  Popular,  pi  4.  cites  8.  C. 

Ser-cant  H.iwkins  (iiys  lie  takes  it  to  be  a  fettled  Rule,  That  the  King  may  pardon  apy  Offence -what- 
ever V.  hcthcr  dgair.ft  the  Common  or  Stat\itc  Law,  fo  far  as  the  Publick  is  ccmerned  in  it,  after  it  is  over, 
and  confcquer.tly  may  prevent  any  Popular  Adtion  en  a  penal  Statute,  by  a  Pardon  of  the  Offence  before 

anv  >Suit  commcnc'd  by  an  Informer.     2  Hawk.   PI.  C.  591.  cap.  ;-.  S.  :;5  ■ .He  al!b  takes  it  to  be  a 

f -ttlcd  Rule,  Tiiat  the  King  cannot  by  any  Difpenfation,  Releafe,  I-'ardon,  or  Grant  whatfbever,  bar  avy 
Rich  whether  of  Entry  or  Attion,  or  any  legal  I/itcrrfi,  i3enefic  or  Advantage  whatfoever,  bejcre  -iejied 
in  the^SidjeB  ;  and  that  upon  this  Ground  it  feems  clear,  that  the  King  can  no  Way  bar  any  jclhn  en  a 
Statute  h\  the  Party  erieved,  nor  even  a  Popular  Jciion  by  a  common  Informer,  if  ccn/me>tced  before  his  Par- 
d:!-.  or  Releale.     z  Hawk.  PI.  C.  592.  cap.  97.  S.  54. 

Contra,  if  it '  7.  If  a  Man  be  hound  in  a  Recognizance  to  keep  the  Peace,  and  the  King 
be  ajter  the  pardons  him,  or  releaies  hejore  the  Peace  broken,  this  is  not  good.  Br. 
fbid— S- Charters  de  Pardon,  pi.  24.  cites  37  H.  6.  4.  per  Fortefcue. 

Br.  C  barters  .  .      „   _  _. 

d- Pardon,  pi.  T'^.  cites  ti  H.  7.  11.  12 Br,  Recognisance,  pi.  22.  cites  S.C.  per  Fineux  quod  non 

n^gaiur.— ^S.'P.  i2Rep.  50. 'citesii  H.  4.  50.    57   H.6.4.    i  H.  7.  10 S.  P.  2  Hawk.  Pi.  C.  592. 

cao  "-  S.  "4. The  King  cannot  pardon  or  releafe  a  Recognizance  of  the  Peace  before  it  is  brckej:,  be- 
cause the  Subjeft  has  a  Kind  of  Intereif  in  it.    Hawk.  PI.  C.  129.  cap.  6c.  S.  1 7.  — S.  P.  5  Inll.  238. 

Br  Qiiin-  8.  Where  a  7'enth  is  granted  to  the  King,  and  he  affigns  'tallies  to  hi$ 

lime,  pl.j.   Creditors,  and  theyjbezv  them  to  the  Collegers  now  the  King  is  difcharged, 

R'^^(u'f  in  and  the  CoUeftors  are  charged  to  the  Creditors;  and  therefore  after 

Aftion"  pl.    this  the  King  cannot  pardon  the  Colleftors,  nor  thofe  of  the  Clergy  who 

7.  cites's.  C.  granted  the  Tenth  ;  for  it  is  compared  there  to  a  Grant  oi  a  Rent  over 

— Br.Grants,yyii;h  Attornment ;  quod  nota.  Br.  Charters  de  Pardon,  pl.  37.  cites 
pnii.  citesj  j^_^_  g_ 

.  ■   ■  9.  Malum  Prohibitum  is  all  that  ivhich  is  prohibited  by  Statute,  Tchich 

i<aas  lawful  before,  as  Shipping  of  Wool  beyond  Sea  &c.  and  Malum  in  fe 
is  that  which  is  ill  and  unlawful,  and  which  the  King  cannot  grant  Li- 
cence to  do,  and  yet  may  pardon  it  afterivards ;  as  for  killing  a  Man  or 
making  a  Nufance  &:c.  the  Licence  is  not  good,  and  yet  after  it  is 
done,  the  King  may  pardon  it ;  but  \\\i\\  Malum  Prohibitum  the  King 
may  difpenle,  as  of  Alienation  in  Morcman,  Shipping  of  Merchandize 
&c.     Br.  Charters  de  Pardon,  pl.  76.  cites  11  H.  7.  11.  12. 

10.  The  King  may  pardon  a  Clerk  Con-viif  remaining  in  the  BifJ.-icp's 
Prifon  "Without  making  Purgation,    tor  this  is  all  Temporal  ;  per  Fineu.K 
Ch.  J.  quod  nemo  negavit.    Br.  Charters  de  Pardon,  pl.  21.    cites   15 
H.  7.  9. 
D.  201.  b._  1 1.  In  Appeal  of  Death  the  Plaintiff  counted  of  Felony  and  Murder  ex 

S.  p.  Dubi-  Ifjjidiis,  Infultu  &  Mahtiapr^iuedttatis  ^  pr.tcogitatis  &c.  The  Detendaar 
In^fuciTa  pleaded  Not  Guilty  to  the  Felony  and  Murder,  and  by  Nili  Prius  was 
Cafe  the  found  Not  Guilty  of  Awarder,  but  Guilty  of  Death ^  viz.  of  felonious  Killing 
Defendant  ^;c.  And  it  is  left  a  Qiisre  whether  the  Q^ieen  may  pardon  the  Burn- 
pleaded  the  j[^g  jj^  jj^g  Hand;  for  the hnprifonment  ihe  cannot  pardon,  inailnuch  as  it 
^"do"n^';  and '-f  ?/?e  Execution  of  the  Party  in  the  Appeal.  D.  261.  pl.  26.  Pafch.  y 
prayed 'to      Eliz.  Turner  v.  Cuthberd  and  Mufgrave. 

have  it  al- 
lowed;  and  a  Precedent  was  fliewn,  Pafch.  8  Eliz.  Rot.  55  SlSufgrrdiC'Si  Cafe,  where  the  Defendant 
pleaded  the  Qiieen's  Pardon  in  this  very  Cafe,  and  it  was  allowed;  altlio' in  9  Eliz.  Dyer  :.6i.  there 
■was  a  Qu2cre  thereof;  but  Popham  faid  it  was  a  flrong  Precedent,  for  it  is  hard  that  the  Ci^een  !hou!d 
pardon  that  which  is  the  Suit  of  the  Party  ;  and  there  is  no  Queftioaif  it  had  been  an  Appeal  of  iiomi- 
cide,  as  it  well  mir^ht,  the  Queen  could  not  have  pardoned  it,  whereto  Coke  the  Queen's  Attorney  of 
Ccunfel  with   the  Defendant  agreed;  for  it  is  meerly  the  Suit  of  the  Party.     Cro.  £.465.   Trin.   ^S 

Eliz.  B.  R.  Penryn  v.  Corbet C-ro.  E.  632.   Mich.  40  8c  41  Eliz.  in  Cafe  of  S''')'lCbbOlO'.';ai;  v.  ©IS' 

51ns,  it  is  faid  that  fiBufaraliE's  Cafe  was  theie  cited,  and  the  Record  viewed,  and  no  Judgment  here- 
in.  but  5  Rep.  50.  Trin.  3 1  Eliz.  ]t5l2C(iirs  Cafe,  in  Appeal,  it  is  faid  tliat  it  was  relblVed,  upon  Con- 
ference with  diverfe  other  Juftices,  that  tiic  King  may  pardon  the  Burr.iiig  in  the  Hand;  for  tiiat  i:  ap- 
pears 


Prerogative  of  the  King".  41 


e 


a 


pears  by  tlic  Statute  of  tlie  4  H.  7.  15  thut  BuiT.i:-'j  in  the  Hand  was  only  to  notify  to  the  [udo-e  here-: 
atrer,  whether  the  Uefend.v.'.t  has  had  his  C'lcrjjy  before,  or  not,  and  fo  no  Part  of  the  jud-;'iiiciic ;  for  if 
i:  were,  the  Kin<^  could  not  purdon_  it,  became  the  Pi.:hitrjf  b:U  an  fiilerefc  hi  the  '■Jitdtwcht  ;  and  fiace 
tlie  Kin[;  has  partloiied  the  Burning  in  the  Hand,  he  tiiereby  pai-dons  the  lii:*n-tfo>iwc}it  by  Confeqaer.ce  ; 
for  tlie  iStli  Eli?,,  provides,  that  after  the  Allow  ai-ce  of  the  Clers^y  and  Burr.iiii;  of  the  Hand,  the  Pnlbnei' 
fliall  immediately  be  fet  at  large  ;  and  if  the  I'ardon,  by  di'ciiarginj^  the  Burning  of  the  Hand,  /houl  i 
prevent  his  beini;  difcharged,  it  would  defeat  the  Intent  of  that  titatute,  and  occafioii  a  perlictual  Lu- 
prifonment;  and  thereupon  the  Defendant  was  dilcharj^ed. — 5  Inlh  257.  cites  Trin.  40  Eli.'..'  S.  C.  bv 
Name  of  S>l)Ugll0r0lI2l)  V- 15llS2lH^>  where  Lord  Coke  fays.  It  was  refolved  by  the  Ju'liccs  upon 
Conference  between  them,  that  the  (^acen  iniglit  pardon  t!ie  Buiniiij'  of  the  Hand  ,  for  that  it  is  no  Parr 
of  the  judj;meiitat  the  Suit  ot  the  Party  Plaintirt'  in  the  Appeal,  but  is  a    collateral  and  cxcni-jlary 

Punilliment   infliited  by   the  Statute   4   H.   7.  cap.  \~. ,  But   note,  that  this  Ca(e   is   report.-d 

Cro.  E.  6Si.  Trin.  41  Eli/..  C.  B.  by  the  Name  of  ^^IjlJCkbOfOlJCl)  v,  J3l3iJ'.'I!,  where  i;  appears 
that   «o  Ji'tt^ment   iias  gi'^en   therein,  but   that  the    Court    was  Oju'illy    divided,  and  th  it  the   Cafe 

at  laft  ended  by  Cii«;;)rom;yc. And  in  Mo.  5-1.  S.  C.    by  Name  of  frstrobOfOUill)  v.  J5l2ijin,  it  is  (aid 

to  be  agreed  that  the  King  cannot  pardon  the  Burning  of  the  Hand  in  an  Appeal,  becaule  it  was  atthe  Suit 
of  the  Party,  and  that  thereupon  the  Matter  wis  conipoioukd,  which  is  lilceivife  conhniicd  by  Raymoiui 
J.  in  his  Reports  5f'9-  in  (ilCllCr's  Cafe,  who  laid  he  had  examine,!  Biggen's  Cafe,  and  he  held,  that  the 
Burning  in  the  H.ind  was  Part  of  the  judgment  ;  for  the  Entry  is,  ^i,d  k  Qffi:n,kr  cauterizelur  in  >nann 
fiia  Ic-^a. But  Cro.  C.  596.  I\Iich.  16  Car.  B.  R.  in  Sir 'i|3attl)tUi  l13iat's  Cafe,  the  King  par- 
doned the  Burning  in  the  Hand,  and  the  Pardon  was  allowed And  11  ^lod  254   Trin   8  Ann.  B.  R. 

inCafeof^niiii)  U.  ISoUiiU,  the  Court  was  of  Opinion  that  the  Statute  that  gives  the  Clergy  extended 
to  Appeals,  and  that  the  Burning  in  the  Hand  being  no  Part  of  tiieir  judgment,  the  Queen  ml|;ht  pardon 
if,  according  to  JSlJgin'-s  Cafe.  5  Co.  50.     And  thereupon  the  Appellee  was  dilcharged  without  Bail 
being  pardoned  by  an  Acl:  of  Grace. 

Serjeant  Hawkins  fiys.  It  is  holdcn  by  great  Authorities,  that  if  a  Perfon  be  convidled  of  Manflaufhter 
upon  an  Appeal  of  Death,  tlie  King  may  pardon  the  Burning  in  the  Hand  ;  for  which  this  Rcafbn  is 
given  by  Sir  Edward  ("okc,  Thatit  is  *  no  Part  ot  the  judgment  at  the  Suit  of  the  Party,  but  a  Col- 
lateral and  exemplary  Punifhment  inflicted  by  the  Statute  of  4  H.  7.  13.  But  this  is  nude  a  Qiiirre  by 
others  ;  and  the  principal  Cale  wherein  it  is  faid  to  have  been  refolved,  is  very  differently  reported,  and 
was  never  adjudged  ;  and  the  Ground  laid  do\vn  that  the  King  may  pardon  it,  becaule  ic  is  no  Part  of 
the  Judgment  at  the  Suit  of  the  P.irty,  (bv  which  it  feems  to  be  admitted,  that  if  it  were  Part  of  th( 
Judgment  the  Law  would  be  otherwile)  fecms  rather  to  make  ag.iinll  it  than  for  it ;  for  there  are  Pre 
ccdentsofex-piefs  judgments  Quod  cauterifetur  in  manu  ilia  leva.  Alfo  it  is  admitted,  That  where  _ 
Defendant  is  to  have  a  certain  Imprifonment  &c.  at  the  Suit  of  the  Party  upon  a  Statute,  the  King  can- 
not difpciife  with  it,  except  in  fome  fpecial  Cafes,  wherein  it  may  be  reafonably  intended  that  fuch  Im- 
p-ijDiiwent  was  given  by  IVay  of  SatisfacHcn  to  the  PiiUkk  Jnflice,  in  which  Cafe  it  feem.«  agreed,  that  the 
King  may  difpenfe  with  it,  as  it  is  faid  he  may  with  finding  of  Sureties  by  one  coiivit-.ted  on  the  Statute 
againit  Trefpafles  in  Parks.  But  it  fecms  doubtful  whether  the  Statute  of  4  /y.  7.  i ;.  which  appoints 
the  Burning  of  the  Hand,  can  well  admit  of  fuch  a  Conftruftion,  for  the  Words  are,  IVlereas  tip.-n 
I'rnfi  of  the  Privilege  of  the  C!  arch,  divers  have  been  );:ore  bold  to  commit  Murder,  bccaufe  they  have  been  ad- 
mitted to  their  Clergy  as  oft  as  they  have  offended;  for  av:idt7ig  offuchprefiimptuous  Boldnefsit  is  enaHed/that 
every  Perfon  not  being  in  Orders,  who  hath  once  been  admitted  to  his  Clerity,  he  not  aiain  admitted  thereto  ;  end 
that  every  fuch  Perfon  cmvict  &c.  fliall  be  mark'd  &c.  From  whence  it  feems  plain,  that  the  Statute  ex- 
prefsly  intends  fuch  Marking  as  a  Difcour.agement  of  the  O.fence ;  and  it  feems  difficult  to  give  a  Rea- 
fon  why  it  fhould  be  conftrued  to  mean  it  only  as  a  collateral,  and  not  as  a  direct  Punifhment  ;  neither 
does  it  feem  a  plain  Rcafbn,  That  becauCc  the  Statute  intended  it  as  an  exemplary  Punifhment,  the  Kino- 
may  difpenfe  with  it ;  for  furely  the  Execution  of  an  Appellee  attainted  of  Murder,  and  the  perpetual 
Imprifonment  of  a  Clerk  delivered  to  the  Ordinary  upon  a  Conviction  on  an  Appeal,  who  could  not 
make  his  Purgation,  were  alio  exemplary  Punifhments  ;  and  yet  it  is  generally  agreed,  that  the  Kino- 
never  could  difpenfe  witli  them  :  And  therefore  upon  the  whole,  this  fecms  to  be  a  Point  that  defervc's 

to  be  farther  confidered.     2.  Hawk.  PLC.  59;.  cap.  57.  S   59. .*  Lord  Hobart,  fol.  294.  lavs,   That 

it  is  no  Part  of  the  Judgment,  or  fo  much  as  in  Nature  of  Puniflrment,  but  only  a  Mark  to  notify  that 
the  Party  may  have  his  Clergy  but  once.     Ibid  in  Marg. 

12.  J.  T.  being  a  Copyholder  to  the   Lord  Cromwel  of  his  Manor  of  5.1nft.  171. 
N.  forged  a  Ctiftomary  ol  the  laid  -Manor  ;  and  it  was  proved  to  be  done  "'"  ^S'  — 
wittingly,   llibtlely  and  talfely,  and   to  the  Intent  (&c.     And  this  was  ^.^£"^1,^ 
held  to  be  Forgery  within  the  Statute  5  Kliz.  and  J udgnient  zvas  given  Trin.  a^i 
accordingly  in  the  Star-Chamber;  and  after  this  Judgment  the  ..Q>«6'^«  Elu.  inCafe 
par  do  fled  the  Rsemtion  ut  the  Corporal  Piimjhnait.     And   ic  was  held   by°^^')"f^* 
VV^ray  Ch.  J.  Saunders  Ch.  B.   Harper  and  Man  wood  J.  prater  Barham  SS  br 
and  Gerrard  Attorney,  that  the  Queen  may  pardon  the  Corporal  Penance  l\jpii.im' 
which   trenches  in  cofiinion  E.x.ample  &c.     But   Dyer,  Souchcote  and  ^no  faid  it 
Mounfon  e  contra.     D.  322.  b.  323.  a.  Mich.  15  Elii.  in  the  Star-Cham-  ^asgood 
ber.  Taverner's  Cafe.  rh^V  , 

the  o«;/j  .v; 

the   Star- 
Chamber  are  by  Infvrnialion,  which  is  properly  the  Si:it  of  the  ^leen,  and   not  of  the  Party  ;  and  there- 
fore the  Queen  miy  p.irdou  if,  but  not  wiica  he  is  convicted  in  an  Aftion  at  the  Party's  Suit;   a.-'d  fo 

L  hs 


42  Prerogative  of  the  King. 


lie  r.id  was  llic  Opinion  of  divers  Juftices  uich  whom  lie  had  confenM But  if  one  b-  sunnu-d  <.f 

i^FlL^E'il::r'J^4^illl:TK^E'^'  "■'  *>^>^^"""""'  ^mon  the  Panifh..cn;.'    Per  Pop- 


S.  P.   Hawk. 


1  c  "  J 3-  ^K  l"  .^'^^^  dq^cnding  lefMa;  Pnrty  avJ  Party  ;«  Cmrt  Chnpia„ 

cap.  5-:S4,.  \'''"'^^'  the  Suit  IS  cMily  fro  jaltite  anim^  vcl  rcformatione  moruiiK  as  lor  Dei 

. S.C       i;imunon,_  or  laying  violenr  Hafids  upon  a  Clerk,  or  the  like,  there  the 

cited  nav.  Pardon  ot  the  king,  ;;f  a  Ear  of  the  8,it  ;  For  the  Siut  is  not  to  reco\er 
in^'  he 'cafe  "^  l^-^'^^^S^^^  or  any  other  Thing,  but  only  to  inftm  PHmJhment  upon  the 
..fCu„men-^^,7^5'';-'P™^^"^^l"'"^'^'  which  Punilhmcnt  the  King  may  pardon  as 
t\rl  ^'-  T)  K°''1-  '^'"V'l"'  ,^"'  ^-omniene'd  ,  lor  in  Truth  fu.h  Suits  are  on- 
Hob.  8,.b2.  ylortheking,  tho' they  are  prolecuced  bv  the  Party.  Refolved  c 
Jac"in'c,re  ^^'P'  ^'^  "^  ^'''''-  ^  J^^^"  ^'^^  '"  H'^"'^  Culc:  ^      ^eioi.ed  5 

":t1tii^;rJ:;'^e^;^KI^;j;.s;;:,£^i^h^ 

t.icii,  ;  lor  thev  are  only  to  correct  or  iuA  the  P.n-tv  lor  the  Off-,   .    J,   • ,  H J  1^  King  may  pardon 

f.rt,,e,  articular  InJreft  of  the   Uy.     ^i^'^tr^^tH:^.^::^!^^^ 

fi        ^''"^■wM'-    ^^4.-7 -^'"''^°^e/,W.^r7;,/..,   orh.traHofAUrl:.o.,   ..  for  t.  ;.v   o.  the 
ikc^  ^r/ce  the  Pla,r,t,ff  has  Intereji  and  Property  in  the  Thin"  in  Denund     an/s^nJn-^  i!    ^•'        J 
h..m  for  the  Tiung  for  whtch  he^Hbds,    the^re  ^,e  King  cannot  ^iSo^th  /nSier'S:  no^lft^r  tt 
Suit  commenced.    Refolved  j  Rep.  5 1.  a.  in  Hair,  Cd'c. S.  P.  2  Hawk  PI  C  ^ oZ  can  "  -    9   f, 

2-0  Ti^"  '^-  ^li''^  C  libelled  againft  Pv.  H.  in  the  Court  Chrillian  for  Defa- 

Pardon.  cit«??=^"«"'  *°r  callmg  her  Ubore,  and   had  >5W«;..,  ^;;^  Cofl^  ivcrc  taZi 

SC Etdecretumiuit  quod  predictus  R.  H.  foret  movendus  &  citandus  id 

.sP^2Hawk.folvend.expenr  citra  tale  teftum.  Which  Sentence  the  Mncbnr  -to 
P1.C.  ,94.  pealed  Irom,  and  belore  the  laid  Feail  R.  H.  obtained  a  Son  of  the 
S.  V-'^z.-  ^?"g.  f  d  thereupon  obtained  a  Prohibition  out  of  C.  R  And  it  was  re- 
So  of  Suits  lolvcd  that  tho  theSuitbetor  the  King,  and  which  the  Kins?  may  Dirdon 
m  the  Star-  yet  when  Sentence  is  given,  and  Colts  taxed  for  the  Plaintift,  ,ww  the 
afert"  ^'.^'"^^ir has  a  fartuulur  Intcre/i  n,  then  by  the  Sentence,  which  the 
tcnce  given  I>>ng  cannot  pardon,  tho'  Day  be  given  for  the  Payment  of  them  as 
and  Cofts      above.     5  Rep.  51.  a.  b.  Trin.  2  Jac.  C.  B.  Hall's  Cafe.  ' 

tjx'd  fur  the 

pt?J^  "k'/hw-T  ^'1  "n    '^i''''"u''^'  ?''"^=  ^"' ''  *^"  ^'"•'^"«  ^'■■'^  *"-»  oUaMhefore  Sentence    there  th= 
Pardon  had  discharged  all  ;  for  then  the  Court  could  not  have  proceeded  to  any  Sentence  of  the  P,-  n 
cipal,  and  bv  Confequence  not  ot  Coft,,  which  are  only  Acceiri,-y.     5  Rep.  5 ,    a   b    Hall°    C  fe     X 

King  ;   and  therefore  as  to  this  Purpole,  the  firfl  Sentence  is  not  fulpended  by  the  Aoneal      AnT^f 
Conlultation  was  granted  for  the  Colts.     Ibid.  "  Fcnuca  o)  tne  Appeal.     And  after 

Vaughns.       15.  The  King  cannot  pardon  the  not  repairing  a  *  Bridge  or  Hizh-zvay 
Itv.Q.     l^caak  tht  Snhjeff  has  an  htcre/ in  th,m.     It  Is  true  he  mav  .  £doa 
Nui:.nce,  pi  p»es  Jor  the  Tme  pajt,  but  not  Ibr  the  Time  to  come,  for  the  Orfbnce  it 
15.  cites  37    lelt  cannot  be  pardoned  ^  but  lor  the  Time  after  the  Offender  iVtII  he 

cann  )t  pardon  a  common  Kxfiwce. f  Br.  Charter  of  Pardon,  pi.  24   cites  --  H  6   ' S  P       T   ()• 

^^-■~~^^''  °[^''f'%' '"  ''■if^'l^J^'-^-^y,  t!>ey  cannot  be   pardoned/,//  reworjed"  tho'  they  are  onlv 'l/'!/. 
Prdjn,.     Bu.  the  Fn,e  or  Ptaujhn.ent  w,p.fed  for  the  Doing  may  be  pardoned.     So  of  a  IVater-coJe  di 
■uerieA;  per  Vaughan  Ch.  J.   Vaugh.  533.  -'^  ^'' 

Serjeant  Hawkins  fay.s    That  vvhilc  a  PrMck  }iu[.mce  continues  unrcform'd,  it  fecms  atv^eH    th  ,t  ri,^ 
King  cannot  wholly  p.rdon  it,  bee aule  fuch  Pardon  would  take  a.vay  the  only  Means  of  c^mpellinc  ' 
Kedrcrs  of  It      But  It  has  been  holden  by  lon.e,  that  a  Pardon  of  fuch  Offence  will  fave  the  Partv  tron 
any  t  UK  for  the  1  ime  precedent  to  the  Pardon.     2  Hawk.  PI.  C   591.  cap  5-.S.--.       ''"=  ^ -^"J  "om 

16.    Both  theD.7w^^-a  and  hnprifomncnt  in  Trefpafs  upon  the  Stafite 
Rejt  I.  cap.  20.  concern  the  Plaintilf^  and  therelore  the  Kin<-'s  Pardon 


cannot 


Prerogative  of  the    King.  4.^ 


cannot  difpciifc  w  ith  them  i  hut  the  Rdnjlrii^  the  f'.ndirig  S/iraj,  and 
the  Fonitiring  of  the  Realm,  are  Punilhnicntsexcmplaly,  and  concern  the 
King  i  and  therctore  he  may  pardon  them.     2  Init.  coy. 

17.  M.  was  iwpcachcd by  the  Hoiife  of  Caimwiis,  and  by  Judgment  in  the 
Houle  of  Lords,  Tw.'j  di fabled  to  hold  any  Spritnal  Prejeru/efit.  The  King 
alterwards,  under  the  Broad  Seal,  pardoned  him  all  'Treafon.';,  Felonies^ 
iJifabititicsi^c.  but  icitbont  any  Recital  therein  oj  the  Jitdgment  in  Parlia- 
nient  againit  him.  He  was  afterwards  made  PJilhopoFSt.  Afaph.  It  was 
argued,  whether  or  no  this  Difibility  is  pardonable  by  the  King  ?  This 
Point  was  not  adjudged  i  but  fee  the  Arguments  ]*ro  (5:  Con.  Hard.  154. 
to  IJ7.  Palch.  1659.  Tiiorowgood  v.  Herbert. 

18.  P.  being  convt^ed  of  Murder,    obtained  his  Pardon,    and  being  2  Sulk.  499. 
brought  to  the  Bar,  pleaded  it,  and  prod/iced  his  Wr/t  oj  AUoivance,  and  the  ';!'''■  i>^  ■ 
Pardon  had  in  it  the  >\'ord  J-Zmv/r/w/.     And  it  was  held  by  tiie  whole  ^^^.j^^ 
Court,  that  this  Pardon  was  good,  and  ought  to  be  allowed  j  for  that  N^meof  ths 
the  King  might  at  the  Common  Law  have  pardoned  Murder,  and  that  Kinji;  v. 
appears  by  thofe  very  Statutes  which  limit  his  Power  in  that  very  Par-  I'-'i'-"" 
ticular  J  and  the  Drift  of  thofe  Statutes  are  no  more  than  that  the  King 

Ihould  not  be  furpriz.ed  by  pardoning  it  by  general  VVordsi  and  there- 
fore Jtnce  the  making  of  thofe  Statutes,  a  Pay  don  of  Felonies  &zc,  ■s'o/jld  not 
extend  to  pardon  Murder  'siithout  a  Non  Objlante  ;  but  if  the  King  \rould 
recite  the  particular  Faft,  as  he  had  done  here,  the  Pardon  would  be 
good  without  a  Non  Obitante  ;  Therelbre  it  feems  a  Pardon  in  general 
Words  was  good,  without  reciting  the  Fatt  and  Proceedings  particu- 
larly, as  in  this  Cafe  the  Indiftment,  Convi£tion  and  Attainder  were  all 
recited.     Freein.  Rep.501.  502.  Mich.  1691.  Parfons's  Cafe. 

19.  HoltCh.  J.  took  this   Difterence,  Where  the_  Df ability  is  only  the  \l[l^)^^^ 
Confequence  of  the  Judgment,  the  King  may  pardon  it,  but  where  the  Dil-  of  Peijui-y'^ 
ability  is  Part  of  the  Judgment  itfclf,  the  King's  Pardon  will  not  take  it  at  Common 
away  i  therefore*  if  a  Man  be  convict  of  Perjury  on   the  Statute,  the  Law,  the 
King's  Pardon  will  not  reltore  him,  lor  it  is  not  a  Confequence,  but  ^J.^'^^'"^^'^ 
Part  of  the  Judgment,  viz.  Quod  impollerum  non  fit  receptus  ut  teftis.  ^f^  i'fupoii' 
But  a  Pardon  by  Atl  of  Parliament  will  reltore  him  in  that  Cafe  ;  quod  the Snume 
nota.     Quiere  of  a  Perjury  at  the  Common  La-ix) ;  and  if  the  Law  be  not  he  cannot; 
the  fimei  ior  there  the  Diiability  is  only  by  C(jnfequence,  and  not  Part  P«'"  Holt  Ch. 
of  the  Judgment.     2  Salk.   689.    Pafch.   7  W.  3.  B.  R.  The  King  y.]^.^\Tc^i, 
Crosby.  ot  the  King 

V.  Gi-ecp.— 2  Salk.  514.  Mich.  9  W.  5.    B.  R.  S  C. 

20.  ^^'here  Beheading  is  Part  of  the  Judgment,  as  in  Cafe  of  High 
Treafon,  the  King  may  pardon  all  the  refl ^  and  confequently  in  fuch 
Cafe  the  Judgment  may  be  well  executed  by  Beheading  only.  2  Hawk. 
PI.  C.  463.  cap  51.  S.J. 


(U.  a.  8)    Pardon.  Obtained  how.    Suggeftlon,  and 

Proceedings. 

I.  T)Ardon  was  pleaded,  that  the  King  for  his  Service  done  in  Gafcoigne 
JJ  pardoned  htm  ;  and  it  was  allowed  ;  but  he  was  detained  till  it 
"Was  certified  -whether  he  did  fuch  Service  there,  or  not.  And  fo  fee  that  the 
Con/Jderation  up:3n  \vhich  the  Pardon  is  obtained  is  material.  Br.  Charters 
de  Terres,  pi.  74.  cites  kin.  Cane.  6  E.  ::.  7. 

2.  27  F.  3.  Stat.  I.  cap.  2.  Pardons  ivhich  have  not  in  them  the  Suggcft ion  ^^^\  1 
•ivhcreupon  they  are  granted,  andalfo  the  Suggejhrs  Names,  f}:aU  be  void  ;  fo  btendecciv- 
^re  thofe  likewife  "inhich  are  granted  up'.nfulfe  Siiggefiyns,  cd  by  fal'i- 

SiigueiUon. 


^^  Prcrogathe  of  the  King. 


Svi<Ti^eftioii,  and  had  thereupon  difpenCtd  with  formet  Statutes,  vith  a  Claufe  of  Ncn.Obfontc  inferted 
in  the  Pardoi-.j,  thcrefoic  this  Statute  was  nuide.  Atg.  4  Mod  62.  Mkh  3  W.  £c  M.  B  K.  m  Culc 
of  the  King  v.  Anonyimis 

Lord  Coke  lays,  The  Party  ivho  does  not  inform  the  K  in";  truly,  is  not  \vorthy  of  liis  Grace  and  For- 
civenel's;  and  therefore  either  Suppre'Jio  vcri  or  ExprelTio  fjlfi  avoids  the  Pardon.     3  Inif  23 S. 

H.  and  oiliers  v.erc  indicted  of  Alurder,  and  pleaded  a  Pardon,  which  recited  all  the  Proceedings 
upon  the  Indictment ;  and  then  the  King  was  informed,  tlvat  there  was  no  Evidence  given  that  there  was 
any  Malice  prepcnfc  in  them,  in  other  jSlanner  tlian  by  Conlhudion  and  Implication  of  Law,  and  for 
tiiat  the  King  pardoned  the  Killing  and  Felony  &c  but  no  V\'ord  of  Murder  was  in  it  but  by  Defcrip- 
lion  ;  and  the  Court  were  troubled  to  hear  liach  a  Euggcftion  in  the  Patent,  becaufe  they  knew  the  con- 
trary to  be  true  ;  and  therefore  they  faid  that  upon  fuch  a  Pardon  a  Scire  Facias  might  be  brought  7 
Years  hence,  and  they  might  be  hang'd  notwithllanding  thi:,  Panlon  ;  and  therefore  they  advifed  H.  to 
inccurc  a  better  Pardon  :  And  Windham  J.  liiid.  that  the  Sii.t';gelhon  ot  the  Pardon  might  liave  been 
grounded  on  the  Merits  of  the  Prilbners  Sec.  but  upon  this  Pardon  the  Prifoncrs  had  not  produced  any 
Writ  of  Allowance;  and  therefore  the  Pardon  was  not  allowed,  but  their  Execution  refpited  till  ano- 
ther Day,  at  which  Day  they  produced  a  Patent  without  any  Suggcftion  at  all,  and  a  Writ  of  Allcw- 
arce,  but  the  Date  was  millaken,  and  did  not  agree  with  tl'.e  VVrit ;  and  therefore  Execut'on  was  re- 
spited over.     Raym.  15  Pal'ch.  13  Car  2    B.  K.  Howard's  Cafe. Sid  41.  S  C. 

3.  5  H.  4.  2.  ff  an  Jppro'Vi'r  ccmm'tt  Ftlovy  after  he  is  pardoned ^  he  that 
procured  his  Pardon,  pall  jorjeit  100  /.  whufe  Name  Jball  alfo  for  that  Ptir- 
pofe  be  inferted  in  the  Pardon. 

4.  It  a  Man  be  arraigned  of  Murder,  and  it  h^  found  that  he  killed  the 
Party  ^e  Defendcndo,  he  ought  to  fue  a  Certiorari  to  remove  the  Record  into 
the  Chancery  i  and  upon  the  Removal  thereof  to  have  his  Pardon.  F.  N.  B. 

C-47]  (F.)  .       ^       . 

5.  And  if  a  Man  be  attainted  in  Aflife  of  Novel  Difleifin,  before  the 
Jultices  of  Affile,  of  a  DiJIei/in  with  Force,  and  be  afterwards  outlawed  jor 
the  King's  Fine,  if  he  will  have  a  Pardon  of  the  Outlawry,  he  ought  to 
have  a  Certiorari  directed  to  thejuftices  of  ^Jjife,  to  certify  the  King  in  his 
Chancery  the  'Tenor  oj  the  Record  of  the  Affife,  and  alfo  another  iVrtr  to  the 
Jurflices,  to  certify  the  King  in  his  Chancery  whether  the  Defendant  in  the 
Jjjife  hath  yielded  himfelf  to  Prifon,  and  hath  fatisficd  the  Party  his  Da- 
mages. And  if  the  fame  be  fo  certified  in  the  Chancery,  then  upon 
that  Certificate  he  ihall  have  his  Pardon  of  the  Outlawrv.  F.  N'.  B. 
[247]  (G.) 

6.  And  it"  a  Man  be  condemned  in  C.  B.  in  Debt,  and  outlawed  upon  the 
fame,  then  betore  he  tliall  have  his  Pardon,  he  ought  to  yield  himfelf  to  the 
Prifon  of  the  Fleet,  and  fatisfy  the  Party  ;  and  the  Record  of  his  Condetnna- 
tion,  and  of  the  Satisfaifion,  ought  to  be  certified  by  Certiorari  unto  the 
King  in  his  Chancery,  and  thereupon  he  Jliall  have  his  Pardon  j  and  that 
is  by  the  Statute  5  £.  3.  cap.  12.     F.  N.  E.  [247]  (G.) 

7.  And  if  a  Man  he  outlawed  feverally,  at  the  Suit  of  three  fevcra/  Perfons 
infcveral  Adions  in  which  he  was  condemned,  he  ought  to  fue  a  Certio- 
rari to  remove  the  Tenor  of  thofe  Records  and  Procefs  into  the  Chan- 
cery, and  alto  to  have  a  Certiorari  to  the  Jullices  of  the  Common  Pleas, 
if  the  Suit  be  there,  to  ccrcity  the  King  in  Chancery  whether  he  hath 
yielded  hiinfelf  to  the  Prifon  of  the  Fleet,  and  hath  fatisficd  the  Parties  , 
and  when  the  Chief  Juftice  hath  certified  the  fame  into  Chancery,  then 
he  Ihall  have  his  Pardon  lor  the  Outlaw  rics,  and  not  before.     F,  N.  B. 

[247]  C^O 


Seecu.a.io)  (U  a.  9)     Pardon.     Allovv'd  in  what  Cafes. 

But  where     j  _  ■yr  ^  THERE  the  Earon  is  Outlaw'' d,  and  the  Feme  goes  without  Day,  and 
Ftml'xire  V  V     the  Baron  purchafes  Pardon  and  Scire  Facias  thereupon,  hefhali 

ojitltvived ;      not  have  it  allowed  without  bringing  in  his  Feme.  Per  Thorp.     Br.  Char- 
and  the  j?rt-  ters  de  Pardon,  pi.  6.  cites  40  E.  3.  34. 

rcn  p'.rchitfed 
Charter  of 

Pardo?!.     It  was  held  that  he  may  fay  that  the  Feme  is  dead,  or  that  le  had  ro  fuch  Feme,   and  fHall  have 
his  Charter  allowed  ;  for  he  cannot  have  it  allowed  v.ithout  bringin;;  in  his  Feme,  without  fucli  fpe- 

ciHl 


Prerogative  of  the  King.  ^i^ 

cial  Matter  fhcwn.     Br.  Charters  dc  Pardon,  pi.  64.   citL-s    1  5  E  4.    5^ But  v,hci-e  the  B.vcn  nnd 

Feme  arc  c:ttl,iive<i,  andjl;^  appt.irs  aruijheii's  Charter  of  Pardov,  and  the  Baron  does  not  coniv:,  the  Cliat  - 
ter  fhall  not  be  allowea,  bcciule  fhc  cannot  plead  without  tlic  Baron  ;  but  flic  I'hall  go  at  large  ;  no;a. 
Br.  Charters  de  Pardon,  pi.  iS.  cites  11  K.  4,  ^9. Br.  Baron  and  Feme,  pi  56.  cues  S.  C. 

2.  In  Formcdon  the  •Tenant  pleaded  Out/adnry  in  the  Demandant,  and 
he  tinparPd,  and  the  nest  Dm^  brought  Charter  of  Pardon^  bearing  Dctc 
after  hts  Jniparhince^  and  the  Tenant  j aid  that  the  Charter  is  upon  Condition 
that  he  fue  againlt  C.  D.  at  whole  Suit  he  was  outlawed,  which  he  has 
not  done,  Judgnicnt  &;c.  and  ytt  becauie  the  Demandant  is  now  at  the 
Law,  the  Opinion  ot  the  Court  was  againll:  the  Tenant  ^  by  which  he 
vouch'd.     Br.  Charter  de  Pardon,  pi.  7.  cites  44  E.  3.  27. 

3.  13  i?.  2.  I.  ///  a  Pardon  the  OJfence  committed Jhall  le  fpecifed^  other-  D.  was  in, 
•wife  it  Ihall  not  be  allowed.  dieted  of 

IftheOjjence  pardoned  be  afterwards  found  Wilful  Murder^  the  Pardon  .^pjo'bt'^'i,,^.^ 
pall  not  be  allowed.  a  General 

Pardon  of  all. 
Murders,  Robberies,  Felontes  Sec.  Non  obfonte  tlie  Statute  of  i^  R.  2.  or  any  other  Statute.  And 
the  Court  inclined  that  this  Pardon  fhould  not  be  allowed  ;  f-)r  afer  the  Hiid  Statute  a  general  Non  ob.. 
llante  would  not  I'erve,  without  Recital  of  the  Etfett  of  the  IndiClnient  upon  which  he  is  convicted,  to 
the  Intent  that  tlie  King  might  be  apprized  of  the  Otience.  And  tho"  it  was  the  Opinion  in  jAlCabii's 
Cafe,  that  the  King  could  not  pardon  Murder,  yet  it  has  never  been  doubted  either  before  or  after,  but 
that  the  King  could  pardon  it,  with  a  fpecial  Recital  of  the  KaCt  and  Non  obltante  ;  but  without  fich 
Recital  the  {'ardon  is  not  good.  And  they  directed  that  it  fhould  be  argued  for  the  Prifoncr,  if  he 
would  ;  but  he  i-crceiving  tlie  Opinion  of  the  Court,   endcavoiu-ed  to  obtain  a  new  Pardon  with  fpecial 

VVcids.     Sid.  %66.  Trin.   20  Car  2.  B.  R.  The  King  v.  Dudley A  general  Non  obllante,  without 

a  particular  Recital  ot  the  Crime  for  which  the  Party  is  convitted,  is  not  good  fince  the  making  of  the 
Statute  of  R.  1.  but  at  the  Common  Liw,  both  before  and  fnicc  that  Statute,  the  King  may  pardon 
Murder,  with  fpecial  Recital  of  the  Faft,  Non  obllante  that  or  any  other  Statute.  Per  Cur.  4  Mod- 
63.  Mich.  3  W.  £c  M.  B.  R.  The  King  v.  Anonyraus. 


ty 

of  the  Felony,  therefore  it  wds  difillowedi  quod  nota.     And  foit  feems  Bat  the  Ser- 
that  he  fliall  not  efcape  by  P.irdon  of  the  Party  only  ;  and  olten  where  j^ant  fays, 
the  Party  will  not  pro/ecute  the  Suit,    the  Party  /hall  be  arraigned  upon  ^/ig  It  does  rwt 
Declaration  p or  the  King.     Br.  Charters  de  Pardon,   pi.  13.    cues  8  H.  ji^i^  p,j,.jgn 

4.    22.  was  pleaded, 

nor  to  what 
Purpofcitwas  attempted  to  be  made  Ufe  of,  nor  how  far,  or  in  whatRefpect  it  was  difallowed;and  therefore 
tho'  fome  Eooks  fcem  to  hold  generally  upon  the  Authority  of  this  Cafe,  that  fuch  a  Pardon  is  no  Way 
good,  yet  the  Serjeant  fays  he  does  not  well  lee  how  any  more  can  be  proved  from  it  than  this.  That  it 
ihall  neither  amount  to  a  Pardon  of  the  Felony  it  (elf,  nor  of  any  other  Confe^^uence  of  the  Attainder,  be- 
fides  the  Execution.  But  he  fajs  it  fcems  difficult  to  give  a  Reafon  why  it  fliould  not  well  pardon  the 
Evecution,  fince  the  King  doc;  not  appear  to  be  any  Ways  deceived  ;  and  it  has  been  clc.u'ly  adjiidgcd 
that  the  King  may,  if  he  think  tit,  pardon  the  Execution,  and  no  nioie. 

5.  Scire  facias  fliall  not  be  granted  for  the  Defendant  againfl  the  Plain- 
tiff in  Appeal  upon  the  Pleadmg  oi  the  Pardon  of  the  King  after  Con- 
vi^ion  and  Judgment.^  if  he  does  not  pew  Releafe,  or  fuch  like  ;  per  Huls  i 
quod  non  negatur.     Br.  Scire  facias,  pi.  73.  cites  1 1  H.  4.  16. 

6.  Felcn  pall  lut  be  fuHercd  to  relinnuijh  a  General  Pardon  by  A61  of  S.  P.  For 
Parliament,  and  to  plead  to  the  Felony  j  per  Cur.  But  yet  he  pall  an-  ^°''y  °"^ 
fwer  of  the  Goodsy  but  they  will  not  arraign  him  oi  the  Felony.  Br.  J^T^^.;J^f  ^^ 
Charters  de  Pardon,  pi.  16.  cites  1 1  H.  4.  41.  the  Act  of 

Parliament. 

Br.  Coroiic,  pi.  ;o.  cites  S.  C. W'htre.  Felons  are  ■p.zrJoiied  hy  jiSl  of  ParHimenl,  there  the  ■J:ifiices 

ctiglt  to  t.ike  Xotke  tl.eveof,  becauie  it  is  a  general  Act  ;  lb  that  if  a  Prifoner  will  plead  Not  Guiitv,  vet 
they  ought  to  furceafc  to  arraign  him,  and  allow  the  Pardon  ;  quod  nota.     Br.  Charters  dc  Pardon,  pi. 

I.  cites  26  H.  S.  -,.■ Rr.  Parliament,  pi    1.  cites S.  C. — ■■ S.  P.  Tho'  he  be  fo  far  from  pleading  it, 

or  praying  the  Benefit  of  it,  that  he  does  all  he  can  to  waive  it.     2  Hawk.  PI.  C.  31^7.  cup.  3-.  S.  61. 

Serjeant  Hawkins  fays  he  takes  it  to  be  agreed.  That  a  General  Pardon  by  Parliament  cannot  be  waived, 
because  no  one  by  his  Adniittante  can  give  a  Court  a  Power  to  proceed  a^Tainft  h.im,  wlieu  it  appears  there 
is  no  Law  to  punifh  him.     2  Hawk,  Pi.  C  396.  cap.  37.  S.  5S. 

M  7.  If 


46 


Prerogative  of  the  Kins'. 


Tenk.  1(59.  7  U  Jppeal  be  -jjithotit  Day  by  Demif>!  of  the  King,  there  it  the  A;//^ 
pi.z9-  c'"«  p4dons  the  Defendant,  and  the  Plaint  if  does  not  bring  his  Re-attachmetit 
2H.  7.  F"^-''^;Y^;//  the  Tear  to  revive  the  Appeal,  the  Pardon  Ihall  be  allowed.  Br. 
nienrT?        Charters  de  Pardon,  pi.  69.  cites  2  H.  7.  10. 

ad£  That  thi.  P..rdon  fli.ll  be  allo^-ed  ,iU.cut  az,..r.ii,!r  a  Scne  facias  aM  the  ■^PP^lf'^^^'ll'^P- 
pens  on  Record,  tl,:it  the  Appeal  is  ortind,  and  it  would  be  in  vain  m  thu  Cafe  to  award  .  S^rc  fa.u, 
by  tiic  JulHces  of  botli  Benches.    Lex  ml  facit  fruftra. 

8  H  ^\ascon^■\£\icdoi'A'fiVl/Iaf!Jlhta',  ^nd  had  his  Ckrir,  and  pkuded 
his  Pardon,  whereby  the  Burning  in  the  Hand  tor  the  xManllaugJiter,  and 
all  other  Felonies  by  him  committed,  Et  alia  Maletaaabctore  the  8th 
July  lalt  were  pardoned  ;  and  there  was  a  fpecial  Claufe  that  he  Jhould  not 
find  Surety  for  his  Good  Behaviour  j  and  the  Pardon  bore  Date  sift 
^Oaober  Jaft  ;  and  tho'  there  weredivers  Mildemeanors  committed  by  him 
after  the  laid  8th  ]ulv,  for  which  he  deferved  to  be  bound  to  the  Good 
Behaviour  yet  he  had  his  l^ardon  allowed,  and  was  discharged  trom 
finding  Sureties  &c.     Cro.  C.   596.  Mich.  16  Car.  B.  R.   Sir  Matthew 

Mint's  Cafe.  ^  ,  ^   ,-       •■  ^  •,  a 

Rayni.  13.  9    H    and  others  were  indifted  of  A/z/r^'fr,  and  found  Guilty,   and 

S-  C-  Judgment  ivas  given,  but  Exeetition  was  fufpended.     And  after  they  were 

brouc^ht  to  the  Bar,  and  demanded  what  they  could  lay  why  Execution 
flioul'd  not  be  done  ;  and  they  f  leaded  Pardon  of  the  King  fiib  Magna  St~ 
^illo;  and  the  Court  relufed  to  allow  it,  becaufe  there  ought  to  have  been  z 
iVrit  de  Allocanda  ferdonatione  direded  to  the  Jultices  :  And  Mallet  J. 
laid  The  Reafon  why  fuch  Writ  ought  robe  directed  was,  becaufe  it  was 
the  'warrant  which  remained  in  Court  J  or  the  Jiijlices  to  allow  the  Pardon. 
And  after  at  another  Day  the  Pardon  was  read  to  the  Court,  and  H.  had 
brought  a  Writ  directed  to  the  JulHces  to  allow  it  j  and  upon  reading 
the  Pardon  the  Court  faid  they  would  be  advifed  ;  and  they  faid  that 
the  Simeftions  in  it  v^-erefalfe,  and  therefore  they  would  fop  the  Allowance 
And  Tvvifden  J.  faid,  that  in  the  Time  of  Hide  Ch.  ].  an  Allowance  of 
a  Pardon  was  llopp'd,  becaufe  there  was  a  Non  Ob/ante  tioat  the  Party 
Jhould  not  pd  Surety  of  the  Peace.  Sid.  41.  Palch.  13  Car.  2.  B.  R. 
Howard's  Cafe. 


See(U.a.9)  (U.  a.  lo)  Pardoii.    Allowed,  How. 

(U.a.  15)  ^ 

S.P.zHawk.  1  T^T  G.  v^Asindiffedofthe  Death  of  R.  Anno  13.  E.  2.  and  he  Jlxwed 
PI.  C.  59S.  ■  r\  e  by  Record  that  R.  was  dead  Anno  9  E.  2.  and  Ihewed  Pardon  of 
^^P^^'-^-^^-  kisD^^th  telfed  12  E.  3.  and  becaufe  it  might  be  that  two_  R.'s  were 
killed,  therefore  Scrope  awarded  Inquelt  of  Oflice  to  inquire  it  there  was 
found  any  R.  Anno  13.  after  the  Pardon  ;  and  it  was  found  Quod  non, 
bv  which  he  went  quit,  and  the  Pardon  allowed;  quod  nota;  notvvith- 
ftanding  great  Variance ;  quod  mirum  mihi.     Br.  Charters  de  Pardon, 

pi  20.  cites  3  All.  15-  ,  7       J       u 

2  Charter  of  Pardon  was  granted  to  a  Man  who  was  outlawed  at  the 
Suit  of  the  Party  upon  Aft  ion  de  Midiere  abdufTa  cum  boms  I  in,  becatt/e 
the  Plaintiff  came  and  confefid  of  his  own  Free-will ;_  but  in  B.  R.  when 
they  came  there,  they  were  in  Doubt  to  allow  it,  becaufe  the  Party 
came  into  Chancery  to  confefs  of  his  own  Free-will,  without  Scire  facias 
or  Day  in  Court,  and  therefore  they  doubted  it  they  Hiould  award  Scire 
facias  now  in  B.  R.  for  it  does  not  appear  if  he  be  the  fame  Perfon,  ornot  i 
and  yet  at  lall  they  allowed  the  Charter,  and  the  Acceflory  had  not 
thereof  Advantage  ;  quod  nota:  The  Realon  feems  to  be  inafmuch  as  all 
are  Principals  in  this  Aaion.  Br.  Charters  de  Pardon,  pi.  35.  cites  42 
All:  16.  ^   ^, 


Prerogative  of  the  King.  ^7 


3.  He  who  is  outla'-ued,   and  has  Charter  of  Pariloti,  pall  not  compel  the  Rr.  Scire  fa- 
Plaintiff  to  Count  agaiuf  htm^  cho'  he  be  ready  at  the  Buri  bccauJe  he  has  '■'.'''■''>  P'  ^■^z- 
not  Day  in  Court,  and  therefore  was  compelled  to  fue  Scire  lucias.     Br.  '•'^"^•^• 
Charters  de  Pardon,  pi.  8.  cites  46  E.  3.  15. 

4.  Several  were  outlirxcd  in  Jppcal  by  Feme,  of  the  Death  of  her  Hushand^  But  Ibid,  p], 
^nd  the  one  came  yjith  Charter  ol  Pardon  oj  the  King,  and  had  Scire Jacias  •^'-  '^""  ^ 
againll:   the  FlaintiH",  and  Avas  returned  warned,    and  did  not  come,  byfif'J^  ^''■'^ 
Avhich  he  went  quit  j  and  after  another  came  with  fiich  a  Pardon,  and  went  coidin<rfy.' 
quit  by  the  Jirjl  Dejatdt  of  the  Feme  ;  lor  in  this  Caie  they  are  attainted  by  Conn-at 

the  Outlawry,  and  pall  not  plead  upon  the  Original,  and  nothing  remains  ^^^^ '"  ^  ^• 
but  to  be  put  to  Execution.      Br.  Charters  de  Pardon,  pj.   14.   cites  0  1  ^^"i'  , 

Tj  -^  5   r         T  7  ircuektJp- 

•"•  4-   ^-  ^eal'agawfi 

uhofc  Suit  they  were  cutla'wei^  and  one  fued  Charter  cfPaniin,  r.r.d  had  Scire  facias  aT:ainft  the  Feme 
which  was  retui-iied  Ccvvcd, -And.  pe  did  ret  come, hy  which  he  went  quit;  and  amti.er  fned  Charier  of  Par- 
don, and  he  was  compelled  to  hii'.-e  another  Scire  facias  per  Cur  ;  cuod  nota. Ar.d  agreeable   hereunto 

js  Serjea-U  Hawkins,  who  Tays  that  the  lecond  fii.ill  take  no  Advantage  of  the  Appellant's  Default  on  the 
firft  Scire  facias,  but  mull  Cue  out  his  Scire  facias  &c.  in  the  fame  Manner  as  if  there  had  been  no  fuch 
Default.  2  Hawk.  PI.  C.  595.  cap.^;.  8,58.  cites  in  Marg.  i  H.  4.  i.  pi.  2.  Fiizh.  Scire  facias  65.  but 
lays  that  Br.  Charter  de  Pardon,  pi.  14.   in  the  Abridgmiut  of  the  fam;  Cafe  holds  the  contrary. 

5.  Bat  contra  in 'trefpafs  i  for  the  fecond  fhal I  have  Scire  ficias   upon 
his  Charter,  becaufe  they  may  plead  upon  the  Original.     Br.  Charters  de 

Pardon,   pi.  14.   cites  Q  H.  4.  I.  (jcvtr^  'ivlere 

6.  It  was  laid,  that  it  IVrit  of  Allozvance  of  a  Charter  of  Pardon  oft! c  Pardon 
Felony  bejlewn  to  the  Jullices,   and  not  the  Pardon  it  fclf,  this  JJiall  not  "  '"'^If  " 
ferve.     Br.  Charters  de  Pardon,  pi.  42.  cites  5  £.  4,  132.  fhe'u.-r,,  butw 

'  r      T  J        t*      :>  VVritof.-i'/- 

_^,  hojavceVo'ld. 

7.  Debt  by  the  King  upon  an  Obligation,  the  Defendant  pleaded  Not  his  Br.  Attor- 
Deed,  and  found  agauift  him  by  Nifi  Prius,  and  before  the  Day  in  Bank  ney,  pi.  11. 
the  King  pardoned  him  i  he  cannot  plead  this  by  Attorneys  for  by  ;/?£  cites  S.  C. 
Judgment  the  Warrant  of  Attorney  of  the  Defendant  is  expired-,  and  there- 
fore he  appeared  in  Perfon,  and  pleaded  it  in  Perfon,   and  he  pleaded  ic 

to  the  Execution  without  Day  in  Courts  tor  if  it  was  againlt  a  common 
Perfon,  he  might  have  Scire  facias  ad  cognofcendum  Faftum,  or  Audita 
Querela,  and  make  him  give  Day  in  Court,  and  then  to  plead  his  Re- 
ieafe  ;  but  fuch  Actions,  nor  any  others,  do  not  lie  againl!:  the  King. 
Bt.  Charters  de  Pardon,  pi.  4.  cites  34  H.  6.  3.  &  50.  and  35  H.  6. 
I.  25. 

8.  Appeal  o^Roblery  ^  the  Defendant  was  outlawed,  and  got  Charter  ofjndifdx 
Pardon  and  Scire  facias  againfl  the  Plaintiff  \n  the  Appeal  returnable  &c.  Party  be  re- 
without  ffocwiiig  Releafe  o;  the  Plaintiff' ;  and  well;  for  it  is  ufual  without  i'^ied  <aar):~ 
fliew^ing  Releafe.     Br.  Charters  de  Pardon,  pi.  59.  cites  2  R.  3.  8.  '^'  ""f'^"" 

o  _        '   r      .':'  3  r.ot  appear, 

the  Pardon  fliall  be  allowed.     Ibid. Jnd'm  this  Scire  facias  the  Plaintiff  jj-a//  not  make  Attorney 

againfi  him  'H'ho  it  outla'Uied.     Ibid. Contra  upon  fjfue  of  Bigamy.     Ibid. 

9.  Note,  by  the  Opinion  of  all  the  Juftices,  where  a  Clerk  convifi  has 
Ct!.irter  of  Pardon,  he  ought  to  have  Jpeciallfrit,  reheariing  all  the  Matter, 
and  the  Pardon  directed  to  the  Ordinary,  to  make  him  come  before  the  Jufiices 
to  have  his  Pardon  allowed;  quod  nota  :  and  Clerk  convitt  or  attaint 
lliall  be  enabled  by  Pardon,  per  Fineux;  qusre  of  Clerk  attaint,  Br. 
Charters  de  Pardon,  pi.  27.  cites  21  H.7.  31. 

10.  If  one  have  a  Charter  of  Pardon  tor  Felony  committed  bj?  him,  the 
Court  ought  to  allow  it  upon  the  Prayer  of  the  Party  that  hath  it  ;  but  he 
vnp  produce  it  at  the  Bar,  and  pray  upon  his  Knees  that  it  may  be  allowed. 
13th  November  1650.  B.  8.  tor  if  he  produces  it  not,  the  Court  cannot 
takeNoticeof  it,  and  if  he  pray  not  the  Allowance  of  it,  the  Court  can- 
not tell  whether  the  Party  do  accept  of  the  Benefit  of  it;  and  he  does  in 
on  his  Knees  to  cxprel's  his  Thanktulncfs  tor  the  Mercv  afforded  him  bv 
the  Pardon.     2  L.  P.  R.  271.  Tit.  Pardon. 

II.  If 


48 


Prerogative  of  the  King. 


n.  A  V iu don  of  Fe/onj  with  a  (jlaiifc  oj  T'rd/ifportation  was  a!!oii-cii^  and 

the  Piucy  difcharged  ivtthont  finding  Sureties  ;  I'Ut  per   Altry,   the  iifual 

CouHc  is  to   infeic   the  Claule  for  I'lnding  Sureties  to  tranfjjort  himfelf 

within  fuch  a  Time  i   but  per  Cur.    he  ot/^ht  to  tranfport  himfclfwithift  thi 

^tme  at  his  Peril ;  and  therefore  it  was  allowed  &CC.     Comb.  i6.  Paf^h.  2 

Jac.  2.  B.  R.  Anon. 

*  A  Man  iz.  $  k^  6  W.iH  /Vj.ii.  'The  Ad  of^  10  F.d.  3.  z.  for fudingfix  Mainper- 

6"Jj^y-'"^  t     "^'"'^  or  fiibji^antial  Perforis  to  be  bound  for  the  Good  Eehaviotir  oj  a  Perfon  --jcho 

^t'eiiiks"^      '^  Pardoned  for  Feloiiy^  is  hereby  repealed  :  And  it  is  ena^edy  thi-t  if  a  Pardon 

tKo  fever. il     be  plead cd  for  Felony^  the  Court  may,  at  their  Difcretion,   remand  or  commit 

fears  was     the  PerfoH  to  PrifoH^  there  to  remain  till  he  enters  into  a  Recognizance  'jjith  two 

taken  and      fufficieut  Sureties  for  his  Good  Behaviour  for  any  Time  not  exceeding  7  7'ears. 

anivJei-  to  Provided,  that  ij  fich  Pardon  be  pleaded  by  a  Feme  Covert  or  Infant,  fnch 

both,  and      Feme  Covert  or  Injant  may  find  two  Sureties  to  enter  into  a  Recognizance  for 

f  leaded  Par-    ^heni. 

don  oj  then: ; 

and  becaule  he  found  Surety  according  to  the  Statute  10  £.  5.   de  bene  gcrendo,  and  after  made  an  ^'/ffray 

upon  J.  N.  the  Pardon  was  void,   and  another  Judgment  was  given  upon  him,  that  he  fliould  be  Hang'd 

by  tlie  Neck  ;  and  he  was  executed.  Br.  Corone,  pi.  155.  cites  5  H.  7.  7. This  fecmsto  be  (tlavfe's 

Cafe  cited  Mo.  466.  pi.  662.  in  Colc's  Cafe,  where  one  indicied  of  Burglary  [and  convicted]  was 
afterwards  guilty  of  a  Breach  of  the  Peace,  and  upon  fuggefting  the  fame  to  the  Court,  and  praying 
Execution  to  be  done  upon  him,  it  was  faid  by  Ive  Clerk  of  the  Crown,  that  ^l)lDDOn  was  hang'd  in 
the  f.^ueen's  Time  for  the  like  Caufc,  after  Pardon  ;  and  that  the  Pardon  was  conditional,  viz.  Ita  quod 
fe  bene  gefTerit  verfus  cun&um  Populum  Dominas  Reginx.     Mo.  466.  Pafch.  59  Eliz.. 

13.  If  one  who  appears  to  be  attainted  of  Felony,  whether  by  Outlawry 
or  other  wife,  on  an  Appeal  carried  on  at  the  Suit  of  the  Party,  get  a  Par- 
don trom  the  King,  he  mufl  fue  a  Scire  facias  againll  the  Appellant,  before 
the  Pardon  fhall  be  allowed,  unlefs  tlie  Appellant  appear  gratis,  and  con- 
fefsthat  he  will  fue  no  farther  &.c.     2  Hawk.  PI.  C.  392.  cap.  37.  S.  35. 


(U.  a.  11)     Pardon.    Allowed  at  what  Time. 

1.  1  "I  PON  thtjirjt  Nihil  returned  upon  Scire  facias  upon  Charter  of 
\,Ji,  Pardon  oi  Outlawry,  the  Plaintiff  jhall  not  be  received  to  Count ; 

contrary  upon  the  fecond  Nihil.     Br.  Scire  facias,    pi.  45.  cites  48 

E.  3.  I. 
General  Par-      2.  A  Charter  oi  Pardon  of  Felony  being  Ihewed  to  the  Court,  fliall  be 
don  was        allowed  after  Judgment  upon  an  Indiclment,  and  Execution  Ihall  not  be 
fiail^an  done.     De  Vita  Hominis  nulla  ell  cuaftatio  longa.  Jenk.  137.  pi.  82. 
Outlawry        cites  21  E,  4.    72. 
after  Jitdg- 
menty  and  not  allowed  till  the  Parties  were  agreed.    Toth  136.  cites  Tr.  1590.  Weakes  v.  Newborow. 

3.  The  Court  refufed  to  allow  a  Pardon  till  the  PriConer  had  paid  his 
Fees,  fell.  Gloves  to  the  Judges,  and  alio  to  the  Officers,  ac;.ording 
to  Sir  3101)11  'Bell's  Cafe.  4  E.  4.   10.   b.     And  the  Clerk  laid  that  the 
Fees  were  ready,   upon  which  the  Pardon  w^as  read.     Sid.  452.  Pafch. 
22  Car.  2.  B.  R.  The  King  v.  W'ebfter. 
Before  that        4-  2  W.  i3  M.  Sejf.  I.  cap.  10.  No  Procefs  of  Outlawry  at  the  Suit  of  any 
the°Defen-    Perfon  Plaintiff,  Jhall  be  Jiaid,    unlefs  the  Defendant  appear   and  put   in 
dant  inMef-  g^il  where  the  Law  requires  it,   and  take  out  a  Scire  facias  ;  nor  jhall 
ne  Procefs     ^^^-^  Pardon  difcharn  any  Outlawry  after  Judgment,  till  Satisfafiien  or 
can  have  the    *  ^1  ^1      r,     ^ 

Benefit  of     Agreement  with  the  Party. 

\!.^Tny^f!i,av  Colls  of  the  Outlawry  to  the  Plaintiff,  the"  there  is  no  Mention  of  any  Thing  but  his  appear- 

W^nd  putting  in  Bail.     2  Vent.  210. And  Pollexfen  Ch.   ].  faid,  that  the  Praftice  had  been  fo 

UDon  the  General  Aft  of  Pardon  25  Car.  2.  5.  And  yet  in  that  Statute  the  Claufe  concerning  Outlawries 
IS  to  the  fame  Parpofe,  and  no  Mentios  made  of  the  CoKs  of  the  Party.     Ibid. 


Prerogative  of  the  King.  49 

5  A  Pardon  for  Trcafoii  cannot  be  pleaded  until  the  Priibner  be 
charged  with  the  iiidiBmoit  for  the  Oifence  committed ;  for  before  he  is 
charged  by  the  Indi£lment,  it  doth  not  appear  to  the  Court  that  he  is 
the  Perfon  that  is  pardoned  by  the  Pardon.  2  L.  P.  R.  270.  Tit. 
Pardon. 

6.  Where  a  Pardon  o/the  felonious  KilHiig  of  J.  S.  has  been  pleaded  to 
an  Iiiditlment  of  Mdnjlanghter  by  the  Corouef  s  Inqaefi^  the  Court  in  Pru- 
dence lias  refifcd  to  allow  it  till  the  Facl  has  hQe.njottiidMaii/hxiigbter  on- 
ly by  a  Jury  diretled  by  a  higher  Court.  2  Hawk.  PI.  C.  3S6.  cap.  37. 
S.  i'8. 


(U.  a.  1 2)     Pardon.    Allowed  upon  what  Return   to  the 

Scire  facias. 

I.  'X'^  Account  J  the  Defendant  was  outlawed,andgot  Pardon^  and  had  Scire  Sat  by4oE, 
\_  facias  againjl  the  Plaintijf,  who  was  returned  Nihil,  and  the  Par-  "i-SicHt  alias 
don  was  allowed  upon  a  Nihil  returned,  and  he  ucnt  quit.     Br.   Re-  [i,eHLe^i\ 
torn  de  Briefs,  pi.  109.  cites  21  E.  3.  19E.  5  Ibid. 

— Br.  Chav- 
ters  de  P.irdon,  pi.  5.  cite,';  40  E.  ;.  l.  Hiys  It  is  agreed  that  the  Plaintiff  lliall  be  returned  luariied,  or 
returned  tii;iie  Suh:/,  orotherwife  the  Charter  fliall  not  be  allowed,  and  that  upon  two  Nichils,  or  one 
Garnifliment  of  all  the  Plaiiitilis,  it  fliall  be  allowed. 

2,  Trefpafs  by  three,  the  Defendant  was  outlawed,  and  fued  Charter  of^^^-  Charters 
Pardon   and  Scire  facias  againft  the  Plaintiffs,    the  Sheriff'  returned  one  ^^  P'^'don, 
warned,  and  the  other  Nihil;  and  the  Defendant  prayed  Allowance  j  &  \'q  ""'^^ 
non  allocatur ;  for  two  are  not  warned,  nor  is  there  more  than  one 

Nihil  returned,  hut  bo  pall  have  Scire  facias  alias,  and  there,  if  the 
Sheriff  returns  Nihil  again,  the  Charter  Ihall  be  allowed,  for  he  who 
Avas  warned  did  not  come  ;  Note,  that  two  Nichils  countervail  Scire  feci. 

Br.  Scire  facias,  pi.  14.  cites  40  E.  5.  i. And  in  the  next  Cafe 

there,  it  was  agreed,  that  if  upon  the  Scire  ficias  the  Sheritrrf//.'ra.y  the 
Plaintiff  dead,   the- Defendant  Ihall  go  quit  i  quod  nota.     Ibid. 

3.  'two  were  outla-wed  in  Debt  at  the  Suit  of  two,  and  one  of  the  Out-  B:-ookc 
hiws  fued  Charter  of  Pardon,  and  had  Scire  facias  againll  the  Plaintiffs,  ™!^«  a 
and  the  one  was  returned  warned,  and  did  not  come,  and  the  other  Nihil,  by  ^f]ff  ^.^-^ 
•which  the  Defendant  would  have  gone  quit,  becaufe  the  Default  of  the  the  PUintigi 
one  Plaintiff  in  Debt  Ihall    be  a  Nonfuit  of  both,  &  non  allocatur  ;  fo"?,   and 


cites  48  £.   3.  3.  other  mf,  if 

they  might 
count  av^iiij}  this  Dcfej7d.7i;t,  who  appeared  without  the  other,  for  lie  fiys   in  the  Action  of  Debt  they 
cannot  ;  but  by  the  Reporter,   when  it  comes  to  this  Point,  the  Outlaw  fliall  have  Idon  dies  ly  Main-' 
prife,  idl  the  ctker  h.ts  fued  I  is  Charter  of  Pnrden,  and  then  to  ccHht  againft  both.      Br.  Scire  facias,  pi.  4$. 
cites  48  E.  3  5. Br.  Default,  pi.  12.  cites  S.  C. 

4.  Where  Scire  facias  upon  Charter  of  Pardon  upon  Outlawry  ert  tJnc  Br. Execu- 

Sait  of  Executors  was  returned  ferved  at  the  Alias  again fl  the  one,  and  not  ^°''"'  P'-  ^■r- 
fer\cd  againfi^  the  other,  yet  the  Plaintiff  was  conipelied  to  count  againll  '^^f^f^f^  fi'^.^ 
him  ;  otherwife  in  Debt  brought  by  other  Perlbns.     Br.  Scire  facias,  pi.  the  Keuiou 

57.    cites  3  H.  4.  lo.  feemstobe, 

ira!"much  as 
Executors  may  be  fummoncd  and  fe.vcrcd,  and  he  who  com:s  firftjby  Diftrcfs  fliall  anfucr. 

4.    I'rifpafs  agawfi  three,    who  are  returned  Outlawed  upon   erroneous  Br.  Scire 
Prucfs.  and  the  c»e  had  Charter  cf  Pardon,  and  Sv.-iie  l''acias   againlt  the '•f^'-''' '!l'^>- 

iN  Plain- 


^o  Prerogative  of  the  King. 

Br.Url.iwiy,  Plaintiff,  who  is  returned  dead  -,  the  Charter  Ihall  bo  allowed,  and  when 
pl  -   cites     the  other  has  Charter  of  Pardon,  he  Ih-iU  ha\e   it  allowed   without  fuing 
And  in  An-   Scire  Facias  ;  for  it  appears  to  the  Court  that  the  Plaintiff  is  dead.     Br. 
peal,  if  the    Charters  de  Pardon,  pi.  6i.  cites  7  H.  4.  30.  and  9  JhJ.  4.  7. 
Dctciidant  is 

outlawed,  and  fu'.'S  Cliartcr  of  Pardon  and  Siirc  facias  afaivf  tie  Plaintiff  iiho  is  retiirneii  dead,  another 
Scire  Cacias  llial)  not  iffiie  aj^ainll  the  Heir  of  the  Plaintiff",  but  the  Charter  (liall  be  alloued,  and  he 
dilcharped  ;  quod  nota.     Br.  Charters  dc  Pardon,  pi.  28.  cites  ;3  H.  6.  13 Br.  Scire  facias,  pi.  141^. 


d 

cites  S  C. 


6.  Scire  facias  againlt  the  Plaintiff  an  Abbot  5  upon  Ontlazvrj  and 
Charter  of  P<'?/-rt'o;/ granted  to  the  Delendant,  who  was  outlawed  at  the 
Suit  of  the  Plaintiff j  the  Sheriff' rttnrncd,  ''Ih^x.  the  Plaintiff'  wz?,  depofed 
before  the  coming  oj'theWr'tt,  and  the  Defendant  went  quit  Sine  Die  ■■,  quod 
nota  at  the  firlt  Scire  facias,  and  yet  it  is  not  returned  fervcd.  Br.  bcire 
lacias,  pi.  145.  cites  i  H.  6.  2. 
S.  P.   Br.  7.  Debt  by  J.  Abbot  oi  W.  againft  D.   till  xh&  Defendant  is  oiitla-vced. 

Charters  de  ^^jd  f^gd  Charter  uf  Pardon  againlt  the  Abbot,  the  Sheriff' returned  that  be- 
r^' cites  I*"'"  Jc^'-'^^^'^  ^/^  "f^^^  Sci.fa.  thefaid  J.  Abbot  was,  and  yet  he  is  depofed,  and 
H.  6.  z.  another  e  letted  per  quod  ipfiim  Scire  facer  e  non  poteji  per  mm  en  J.  Abbot  proat 
breve  Exigit ;  and  a  good  Return,  and  the  Charter  allowed  j  for  it 
amounts  to  as  much  as  Mortuus  elt,  ior  it  is  a  civil  Death.  Contra  up- 
on fuch  Scire  tacias  againji  Baron  and  Feme,  and  the  Sheriff  returns  that 
they  are  divorced;  for  Peribns  divorced  may  be  warned  ;  contra  of  dead 
Perfons.     Br.  Charters  de  Pardon,  pi.  z.  cites  2  H.  6.  5. 

8.  Debt  by  a  Dean  and  Chapter,  the.  Defendant  was  outlawed,  and  fncd 
Scire  facias  upon  Charter  of  Pardon,  which  was  returned  Jerved,  and  the 
Plaintiff  did  not  come,  and  the  Defendant  fitrmifed  that  the  Dean  is  dead 
after  the  lajl  Continuance  ;  and  becaufe  the  Plaintirf's  Attorne}-  could  not 
deny  it,  the  Charter  was  allowed.  Br.  Charters  de  Pardon,  pi.  56.  cites 
II  H.  6.  I. 

9.  In  Appeal  of  Death,  xhQ  Defendant  was  outlawed,  and  got  Pardon  of 
the  King,  and  had  Scire  facias  againji  the  Appellor  without  Jhewing  Re- 
leafe,  or  other  Things  and  yet  divers  Books  are,  that  he  Ihall  not  have 
Scire  facias,  without  ihewing  Writing  or  other  Thing,  which  will  bar 
the  Plaintiff  of  Execution.  Huffey  agreed,  that  the  Scire  lacias  lay 
well,  without  Ihewing  any  Things  -and  the  Sheriff'  returned  upon  the 
Scire  tacias,  that  the  Appellor  is  dead;  and  therefore  per  Judicium,  the 
Pardon  was  allowed  without  fuing  Scire  tacias  againlt  the  IJeir^  fu  the 
Suit  is  given  to  him  who  is  Heir  to  the  decealed,  who  has  no  Feme, 
add  if  this  Heir  dies,  his  Heir,  fcil.  the  Heir  of  the  Heir  Ihall  not  have 
Appeal  nor  Execution  j  for  it  is  an  A£tion  which  dies  with  the  Pcrfon, 
Br  Scire  facias,  pi.  166.  cites  9  H.  7.5. 


See(U.a.ic)  (^u.  3.  1 3)     Paidoo.    Writ  of  Allowance  neceilary  in 

■what  Cafes. 

I.  "VTO  particular  Pardon,  be  it  at  the  Coronation  or  any  other,  ot 
j_^  any  Offences  whatfoever,  that  is  abfolute  without  any  Condi- 
tion Sic.  need  any  Writ  of  Allowance;  but  when  the  Pardon  is  condi- 
tional by  Force  of  the  Aft  of  10  E.  3.  cap.  2.  there  a  Writ  of  Allow- 
ance out  of  Chancery,  teltifying  that  the  Condition  is  performed,  viz. 
Surety  found  according  to  that  A£t,  may  be  had,  or  the  Party  rnay 
plead  the  finding  of  Surety&c.  and  vouch  the  Record.  2lnlt.  234.  cites 
Hill,  id  E.  3.  coram  Rege.  Rot.  21. 

2.  H.  was  indifted  of  !7>V(?/w,  and  produced  the  Queen's    Pardon,^ 
without  any  Writ  of  Allowance  thereof  i  and  Pope,  Iccond  Clerk  of 


Xi"*" 


Prerogative  of  the  King.  5  r 


the  Cron-n,  informed  the  Court,  that  the  Precedents  were,  that  in  C:de 
(if  Trcafon  it  was  ufual  to  allow  the  Pardon  without  any  Writ  ol:' Al- 
lowance, but  not  in  Felony.  \\'hcreupon  the  Pardon  was  allowed. 
Cro.  £.  814.  Pafch.  43  Eliz.  B.  R.  Sir  Ifcnry  Linley's  Cafe. 

3.  A  Pardon  was  pleaded  without  a  Ji''rit  oj\'i!}oiVtr,ice  ,  and  the 
Court  faid,  that  ii'there  had  been  a  Nou  nbjfantc  in  the  Pardon,  in  this 
Caie  they  would  have  allowed  it  without  liich  \\'rit.  Sid.  41.  Pafch. 
13  Car.  2.  B. R.  How ard's  Cafe. 

4.  C.  was  ontlaivedfor  Murder^  and  brought  a  ll'nt  of  Error  to  reverfe 
itj  which  being  done,  he  was  lorthwith  arraigned,  and  pleaded  his 
Pardon  under  the  Great  &al,  in  w  hich  there  was  a  Aon  oljiarite  for  his  not 

fndiiig  Sureties  for  his  Good  Behaviour.  Per  Holt  Ch.  J.  the  Pardon 
ought  not  to  be  allowed,  a\  ithout  a  IVrit  of  AUo'juauce  directed  to  the 
judges  of  this  Court,  out  of  Chancery,  tcjlifyiiig  that  be  has  found  Sure- 
ties before  the  Coroner  and  Sherifl'&c.  according  to  the  Statute.  But 
by  the  other  judges,  the  Pardon  ought  now  to  be  allowed  without  any 
AVrit  of  Allowance,  becaufe  the  Party  hath  three  Months  given  by  the 
Statute  after  the  Pardon  to  find  Sureties ,  under  the  Penalty  that  his  Par- 
don (half  be  rjoid,  if  he  does  not  do  it.  Nota,  That  afterwards  in  the 
ianie  Term  the  SN'rit  of  Allowance  was  brought  into  Court,  and  upon 
Prayer  &c.  it  was  recorded  under  the  Pardon.  Carth.  120.  Pafch.  2 
W.'dcAJ.  B.R.   Cooke's  Cafe. 

5.  Pardon  of  Murder  is  conditional,  viz.  Tho  finding  Sureties,  and  •''  P-  rci* 
there  mull  be  a  If-'rit  of  yillrojanee,  Ijgnifving  the  Performance  of  that  ^    '"^p'^/' 
Condition  5  and  'tis  not  meerly  at  the  Peril  of  the  Party  i  for  we  ought /'.  q'yffrj" 
not  to  give  a  final  Judgment  upon  Ignorance  of  its  Performance.     Per  may  be^ 
Holt  Ch.  J.  Show.  283.  iMich.  3  \V.^&  M.  The  King  v.Parfons.  pk-aded 

aithut  am 
irrit  cf  .'/!h--iaKre,  becaufe  that  is  abfolute.  Freem  Kep.  502.  Mich,  ifjpr.  S.  C.  by  Name  of  I'arfon.s's 
Cafe \Miile  tlie  Statute  of  10  E,  5.  2.  flood  in  Force,  Pardon  of  Felony  could  not  be  allowed  with- 
out a  \^"rit  out  of  Chancery,  commonly  called  a  Writ  of  Allowance,  teftifying  that  the  Party  had 
foupd  Sureties  &c.  accordinri;  to  that  Statute,  unleG  it  were  diipenfed  with  by  a  Claufc  of  Kon  oh- 
ft.mtc  ;  but  the  Neceffity  thereof  is  takeji  away  by  5  &  6  W.  &  -M.  15.  which  has  repealed  the  faid 
Statute  of  10  E.  3.    iHawk.Pl.C.  39S.  Cip  57.   S.  ;o. 

6.  M.  pleaded  hh  Pardon,  and  being  ask'd  for  his  ^\>It  of  Allow- 
ance, it  was  anfwered,  that  it  had  been  allozved  In  the  Old  Bailey  ;  and 
after  feme  Debate  it  was  allo-ived  here,  without  a  uc:-:  Jl'rit.  Comb.  230. 
Mich.  5  Ann.  B.  R.  Sir  Richard  Mantel's  Cafe. 


(U.  a.  14)     Pardon.    Advanta2;e  thereof  taken  by  whom, -''^'^^^^•3- "5) 

when,  and  how.  (<4,-»-5) 


"A 


MAN /?/7/(;v&  a  Juror,  bj-  w  hich  it  was  awarded  that  his  Hand 
_  _  ^^  '^"^  '^ifi  '^"d  ^^^  King  granted  his  Land  to  another  i  and  after 
the  King  pardoned  him  the  Amputation  oj  his  Hand  and  Jinprifonraent,  and 
■ivhatfoe'ver  to  him  belonged,  and  then  the  Offender  died  i  and  the  Heir 
brought  Scire  facias  againlt  the  Patentee,  and  re-had  his  Land.  Jir. 
Charters  de  Pardon,  pi.  70.  cites  41  E.  3.  25. 

2.  A  Man  was  bound  in  one  Obligation  by  Name  of  R.  7!  and  In  another  Br.  Mifno- 
ly  Narne  of  J.  S.  and  was  ontlaived  upon  both,  itbere  his  Name  ivas  R.  i.  '^^'■'■■'  P'  ■^• 
andjued  Charter  of  Pardon  thereof  by  Name  oj  J.  S.  only  ;  and  it  was  al-  '""'"''    ' 
lowed,   and  he  vvent  quit  of  the  other,  lor  it  cannot  be  intended  the 

lanic  Perfon.     Br.  Charters  de  Pardon,  pi.  3.  cites  3  H.  6.  25.  Br.  Ch;i-.cr.s 

3.  Where /a^o  are  appealed,  and  ^xq  outlaii-ed,  -dndftie  federal  Charters  deVM-dan, 
of  Pardon,  they  lliall  have  le\c!al  Scire  tacias's.     Br.  Sciic  facias,  pi.  P'i'- '■'')" 

-'.'„,.•  '   '^      S.  C   and  9 

177.   cues  8E.4.  13.  H.^accord- 

4.   II  i-iy. 


5 2  Prerogative  of  the  King. 

In  the  Star-  ^_  If  a  Vi^Unqucnt  \n  the  St  ar-Chaii^bcr  pkntis  Not  Guiltj,  he  fliall  noc 
R  ^T-^^w'as ''^  h:uc  Benefit  of  the  General  Pardon  atrbe  Hear/iig;  for  he  oii?ht  to  plead 
not  to  allow  ^^^f^-  l^ardoii,  and  to  a\:er  in  Faff  that  he  is  not  atiy  of  the  Ferfom  eaccptedy 
Dcfendains  or  otherwilb  the  Court  is  not  to  allow  him  the  Pardon.  By  the  Opi- 
the  Btnefit  nion  oi"  both  the  Ch.  |ullices,  to  which  the  Lord  Keeper  agreed.  Mo. 
of  a  General  ^        ^y^^^_       ^       '^jj^^  j,^  q^^^  of  Elake  V.  Allen. 

Piirdon  at  ^  ~  ' -^ 

tie  f/eann((  of  tl e  Carfe,  unlcis  tliey  prayed  it  liy  their  Jr.f'aer  in  Court ;  and  the  Ecafon  is,  becaufe  it 
docs  not  appear  to  c!ie  Court,  tliat  they  are  not  Perlbns  excepted  in  the  Aft.  Obiter.  Mo.  7-0.  Dagg 
V.  Pcnkevcll,   cites  a  like  Cafe  of  Jener  v.  VVaden,   and  Weiifworth  v.  Wade. 

.  5.  A.  was  outlawed  aiter  Judgment,  before  the  General  Pardon  of 
the  43  Eliz.  and  after  the  Pardon  died.  Upon  which  his  Executors 
wake  SattsfaffwH,  which  is  confefs'd  of  Record,  and  plead  the  General 
Pardon,  with  an  Averment  that  they  are  none  of  the  Perlbns  excepted 
therein.  It  was  refoh  ed  that  the  Executors  may  take  Benefit  of  it  ^  tor 
the  Acl  is,  Thin  all  the  King's  Siilyeffs,  their  Heirs,  Succe/fors,  Executors 
and  yldiuinr/Irators  ihail  be  acquitted  &c.  which  is  to  be  expounded 
beneficially  for  the  Subjeft.  And  tho'  the  Provifo  is,  that  the  Aft  iTiall 
not  extend  to  any  Perlon  oiit/azved  on  any  Writ  of  Ca.  Sa.  tilt  Satis- 
fafJion  or  Agreement  made  with  the  Party,  yet  the  Aft  veils  fuch  an  In- 
tereft  in  the  Perfon  outlawed,  that  tho'  he  dies,  yet  his  Executors  may 
make  Satisfaftion,  and  have  Benefit  of  the  Pardon.  Per  Cur.  6  Kep. 
79.  b.  Trin.  5  Jac.  C.  B.  Sir  Edward  Phitton's  Cafe. 

6.  B/Il  was  exhibited  in  the  Star-Chamber  againji  C.  and  feven  or 
Eight- fcore  Dutchmen,  for  Buying  and  Tranfporting  of  fundry^^r^^?  Sujns 
of  Money.  The  Defendants  pleaded  in  Bar  Not  Guilty,  and  afterwards 
in  their  Rejoinder  pleaded  the  Pardon  by  Parliament  7  Jac.  which  ex- 
tended to  Buying  of  Money,  but  not  to  Tranfporting.  And  upon  this 
a  Queltion  arofe.  Whether  fo  many  of  the  Defendants  at  were  neither 
Naturalized  nor  Indenizen'd  were  capable  of  the  Pardon.  And  it  was 
argued,  that  the  General  Pardon  in  the  Preamble,  and  in  all  Parts, 
uleth  the  W oxd&  of  Loving  and  cledicnt  Suljeffs  i  whereupon  the  Ch.  J. 
did  in  a  Manner  exprefsly  hold  them  out  of  Relief  But  Lord  Hobarc 
fays  he  avoided  that  Queltion,  as  being  not  neceffary  ;  for  he  fays  they 
all  agreed  that  it  did  no  Good  in  the  Rejoinder.  But  he  fays  he  told 
the  Attorney-General,  that  he  held  the  Dutch  living  here  -within  the 
King's  Proteffion,  hing  of  a  Friend  Country,  to  be  alfo  truly  under  his 
Subjeftion,  and  theretbre  capable  of  the  T'ltle  of  his  loving  and  obedient  Snb- 
jeffs,  but  not  ot  the  diltinft  Title  of  Natural  Subjefts,  which  isufual  in 
Statutes,  fet  in  Oppolition  againft  Denizens  and  Strangers.  And  bc- 
iidcs,  the  General  Pardon  hathRefpeft  of  Retribution  lor  the  Subiidy» 
wherein  Strangers  pay  more  than  we,  and  in  fome  Sort  may  be  called 
Grantors  ;  for  by  living  here  they  tacitly  fubmit  to  our  Laws,  and  fo 
their  Grant  and  Confent  is  involved  in  the  Confent  of  Parliament.  And 
he  thought  no  Judge  would  doubt  but  that  fuch  a  Stranger  ihould  have 
the  Benefit  of  fuch  a  Pardon  againft  common  Penal  Laws,  and  other 
common  Offences.  But  if  the  Stranger  were  not  in  the  Kingdmn  at  the 
'T'iine  of  the  Pardon,  then  he  were  Tiot  within  the  Benefit  i  for  he  is  no 
otherwife  a  Subject  than  by  his  Refidence  here.  Hob.  270.  Courteen's 
Cafe. 

7.  None  fhall  be  obliged  to  lay  the  Strefs  of  his  Cafe  on  any  particular 
Words  or  Claufe  /;/  a  particular  Pardon,  but  may  take  Advantage  of  the 
whole.     2  Hawk.  PI.  C.  398.  cap.  37.  S.  68. 

8.  He  that  will  take  the  Benefit  of  a  General  Pardon,  ought  to  plead 
the  Statute  by  which  the  General  Pardon  was  granted.  21  Car.  B.  R. 
8  Ed.  4.  7.  4  H.  7.  8.  That  the  Court  may  judge  whether  his  Offence 
be  pardoned  or  nor,  which  they  cannot  do,  except  the  Pardon  be  plead- 
ed, and  that  the  Party /^^w  he  is  comprized  in  the  Pardon,  and  not  except- 
ed out  of  it.     2  L.  P.'R.  26S.  Tit.  Pardon. 

(U.  a.  15) 


Prerogative  of  the  King.  53 

—  ■    '  -  —  ■■  ■     -  

(U.  a.  15)     The  Effects  and  Coniequences  of  a  Pardon. 

I.  TT^OR  hreakjng  o/the  Prifon  of  the  King,  the  Appellee  ihall  hconj}-  S.  C.  cit.-.f 

X;    ed  of  Bcittcli  but  if  he  can  Ihew  the  King's  Pardon  for  the  Break-  ^>'  t''^^'''--^" 
tug  tt,  hcj/jall  have  the  Bcittet ;  for  the  Breaking  is  to  the  King,  by  the  '|^'.'-''  '^^■ 
Opinion  of  the  Courc.     Br.  Battuil,  pi.  3.  cites  i  All'.  3.  '  yac."mCarc 

toil  li.  ell  liking,  who  faid  that  the  Reafoii  of  the  Prefiimption  of  the  Gui'tinefj  is  the  fume  afLcr 
the  Favdon  a.-,  before;  bar  that  tlie  Reafon  of  the  Cafe  is,  that  tlie  Kinc^'.s  Pardon  not  oiilv  cletzrs  the  Of-- 
fence  it  felf,  but  all  the  Dependencies,  Penalties  and  D/faLilities  incident  unto  ir,  and  tliat  a<^ainll  the 
AppeHant,  for  tho'  the  Appellant  has  an  Intereft  in  the  orij^inal  Fact,  uhich  the  King  would  not  dif- 
chargc  as  againft  him,  yet  in  the  Breaking  of  tlie  Prifon  he  had  none  but  oblique. 

2.  If  the  Hetr  of  the  Tefiafit  of  the  K!/;g  enters  after  the  Death  of  his  Fa-  H' f,:trnjJi,> 
ther,  and  the  Kiug  pardons  to  him  all  Manner  of  Entries  made  upon  his  P of-  ^1  *'■''  ''^^'^ 
ff/ioii^  yet  he  has  no  Frank-tenement,  inafmuch  as  the  Statute  is  Quod  '"Heath  otF 
nullam  accrefcat  ei    Liberuin  Tenementum.     Br.  Charters  de  Pardon,  .d'ffff/?^'!- i/^ 
pi.  43.  cites  5  E.  4.  4.  per  Danby.  founHy  Of. 

Jice,  and 
after  the  King  ptrdo>is  it  by  Jcl  of  Parliament,  or  by  Letters  Patents,  yet  the  Heir  J\>all  fite  Livery  ;  for  ir 

is  not  reftored  to  him  by  the  Pardon.     Br.  Charters  de  Pardon,  pi.  54.  cites  50  H.  8. But  if  the 

Pardon  was  granted  before  Office  fc:iiiJ,  and  at  the  Makiv^  of  the  Pardon  the  Heir  is  of  ftill  ^^ire,  he  fhall 
retain  the  Land;  and  Office  found  afer  the  Pardon  ihall  not  grieve  him.     Br.  Charters  de  Pardon,  pi. 

54.  circs  ;o  H.  S. Where  O^u-e  is  found  before  the  Pardon  granted,  the  Pardon  fliall  not  ferve  ;  for 

then  the  King  is  feifed  by  the  (Jfhce,  and  there  a  Releafe  or  Pardon  cannot  give  it,  but  there  ought  to  be  a 
Gift  or  Grant.     Br.  Charters  de  Pardon,  pi.  ji.  ci:es  29  H.  3. 

3.  J ppeal  of  Robbery  ;  the  Plaintiff  has  Judgment  againft  the  Defen- 
dant, and  the  King  pardons  him,  yet  hQ fhall  I'liffer  Execution,  unlefs  the 
Plaintiif  upon  Scire  facias  would  conlefs  that  he  would  not  lue  further. 
Br.  Appeal,  pi.  128.   cites  11  H.  4.  16. 

4.  Attorney  had  made  Capias,  of  which  there  was  no  Original ;  by 
"which  Attachment  illued  againft  him,  and  he  was  taken  and  examined, 
and  confefs'd  ir,  and  was  committed  to  the  Fleet,  and  was  there  lor  a 
Month,  and  then  was  put  to  his  r'ine,  and  was  fjuorn  that  he  Jbottld  not 
meddle  any  more  in  the  Law  in  any  Court,  and  his  Name  Jir tick  out  of  the 
Roll  of  Attorn ies  i  quod  nota.  Per  Newton,  Hereafter  you  may  have 
Charter  of  Pardon  of  the  King,  and  come  backj  for  the  Bilhop  m.iv  ai- 
foil  you  of  this  Oath.     Br.  Attorney,  pi.  7.  cites  20  H.  6.  37. 

^.  If  Alienation  without  Licence  be  pardoned  by  Act  of  Parliament,  the 
Party  may  enter  without  Oufter  le  mam,  or  Amoveas  manum  ;  but  con- 
tra by  orher  Pardon  by  Letters  Patents  i  note  the  Diverlicy.  Br.  Char- 
ters de  Pardon,  pi.  53.  cites  29  H.  8. 

6.  If  the  King  pardons  a  Man  attainted  of 'Trcafon  or  Felony,  and  after  -  L.  P.  R. 
he  piirchafes  Lands  in  Fee,    and  takes  Feme,  and  has  Iiiue.j  and   dies,  p'^- ''""• 
this  Iffiic  Jhall  inherit  i  for  by  the  I^irdon  he  was  well  reltored  to  his  j-ite/s'c_ 
Blood  ;  becaufe  he  is  thereby  inabled  to  purchafe,  and  need  not  to  this  Screant 
Purpolehave  Rellitution  i  and  this  Reafon  ferves  for  the  Iliuehad  before  Haivkins 
the  Attainder  and  Pardon.     Dal.  14.  pi.  3.   i  Mar.  i  Anon,  per  Brom- ^'5'^'^^'^''^'"* 
ley  and  Portman.  ^^^^^ 

Pardon 
cannot  reftore  the  PJlood,  ib  as  to  make  the  Perfon  attainted  capable  cither  of  inheri.ing  o.-hers,  or  of 
being  inherited  himielf  by  any  one  born  before  the  Pardon  ;  yet  if  fuch  I^rlon  have  a'Son  born  afcer, 
and  p'.n'chafe  Lands,  and  dies,  fuch  Son  may  be  his  Heir,  unl-c's  he  have  an  elder  Brother  aiive  bom 
before  the  Pardon  ;  for  a  Pardon  does,  as  it  v.ere,  make  a  fiian  a  new  Creature,  and  give  him  a  njw 
Capacity,  in  Rcfpect  whereof  his  IlTue  born  after  the  Pardon  may  be  his  Heir,  as  to  Lands  purchalcd 
after  the  Pardor,  in  the  fame  Manner  as  if  he  had  never  been  attainted.     2  Havvk.  PI.  C  45S.  cap.  49. 

S.  51. And  Ibid.  596.  cap.  57.  S.  57.  The  Serjeant  lay.s,  It  feems  agreed  that  the  King's  Pardon 

cannot  fthe  the  Corruption  of  Blood  by  .Attainder  of  Treafoa  or  Felony. 

7.  One  Burton  a.  Parfon  was  deprived  for  Adultery,    and  then  came  a  S.  C.  cited 
General  f^'/v/-;// of  Oifenccs,    inter  alia,   of  Aduker\'.     Ref^lvcd  th it ''^'^'°-  -i'3 — 

O  '  hv- 


54-  Prerogative  of  the  King. 

S.  p.  Palm,  by  Vircue  thereot  he  was  flow  become  Pnrfon  <?^v7//7,  without  iiri}- Sentence 
^}^  ^"'  to  avoid  the  iaid  Deprivation  ,  tor  by  tiie  Pardon  the  Adultery^  which 
—Sid.  I  AS  '^"'^^  ^^^  Cauie  and  Foundation  ol"  the  Scntenct  of  J^eprivationj  i.s  dif- 
rl.  z-  (ays,  charged,  and  bv  Conlequcncc  all  that  depends  upon  it.  6  Rep.  13.  b. 
This  feem.s  cites  D.  135.  Burton's  Cafe, 
to  be  S.C  as  .  ^  _.,   . 

Lat  22  Igcffon'sCafe,  tho'  the  Report  there  fuppofes  it  to  be  in  another  Time. This  Caft  was 

denied  to  be  Law  by  Windliam  J.  who  laid  that  tho'  Lord  ("oke  cites  it  out  of  Dyer,  vet  no  fuch  Cafe  i.s 
to  be  found  there  ;  artd  that  it  lias  been  ofren  denied  :  And  without  Doubt  it  is  not  Law,  that  a  Parfon 
fliall  be  reftored  by   the  Relation  of  the  Pardon,  without  other  Adt.     i  Sid.   164.  IMicli    15  Car.  2. 

B  R.  in  Calc  of  the  King  v.  Wainuritc  and  Jefcries And  again  denieJ.  Sid.  i6,S.  in  the  Cafe  of 

Toombes  v.  Etherington. Antl  again  denied  per  tot.  Cur    Sid.  222. 

Fob.  Si.  8.  In  Cafe  for  Words,    the  Defendant  juftifies,  becaufe  the  Plaintiff 

Trin.  i;  had y?o/(?  Sheep  ;  and  the  PlaintiftVcplies  a  General  Pardon.  The  Court 
^fame  of  ^  ^'^^^^  tipon  Demurrer,  that  by  the  Pardon  Icth  the  Puriijhinent  and  Fault 
(EuDDincTi  ccvrr  taken  aivaj,  for  that  the  \\'rong  was  done  to  the  King  by  the  Com- 
toiii).£Uil^  mon  Lawj  and  the  King  being  Supreme  Head,  if  he  pardons,  the 
feiiw*    And  Party  is  cleared  of  the  Wrong.     Brownl.  lo.  Trin.  12  Jac.  Coddington 

Itwasfaul,  \i'-ii  • 

that  he  V.  Wilkin. 

could  no 

more  call  him  Thief  in  the  prefent  Tenfc,  than  to  fay  that  a  IMan  has  the  Pox,  or  is  a  Villein,  after  he 
is  cured  or  manumitted ;  but  that  he  had  been  a  Thief  or  a  Villein,  he  might  fay.  And  it  was  held  no 
"rcat  Difterence,  tho*  this  had  been  a  fpecial  Pardon,  and  not  known  to  the  Defendant ;  for  he  mull 

take  Heed  at  his  Peril,  that  he  does  no  Man  wrong. S.  C.  Hob.  67.     And  fays,   that  in  the  End  it 

was  adjudged  for  the  Plaintift,  tho*  it  may  be  he  knew  him  not  to  be  within  thePardon;  for  there  isno 
Caufe  to  favour  idle  and  injurious  Words.  But  perhaps  if  he  bad  arretted  him  for  the  Felony  after  Par- 
don, it  might  have  been  e.KCufed  if  he  knew  it  not,  becaufe  it  is  an  Act  of  Juftice. 

9.  A.  was  Chancellor  of  a  Diocefe,  but  was  deprived  and  fined  &c.  by 
the  Star-Chamber  ibr  certain  Mifdemeanors  :  B.  obtained  his  Office.  A. 
was  afterwards  pardoned.  It  was  held  by  all  the  Judges  at  Ser- 
jeant's-Inn,  that  the  Pardon  had  avoided  the  whole  Sentence,  except  as  to 
the  Fine  to  the  King,  and  that  the  Sentence  could  not  take  away  the 
Office,  being  a.  Freehold i  and  fo  y\.  v,-a.s  alloiced  to  prof uiitc  hi ^'  J///]e  for 
the  Office.     Cro.  C.  55.  Mich.  11  Car.  B.  R.  Bennet  v.  Eafedale. 

10.  T.  the  FatTonprefented  A  Ly  Siu/onj,  and  then  ^i.  died,  and  then 
he  prefentcd  B.  and  then  the  King  prefentedj,  and  then  came  the  Acl  of 
General  Pardon  in  the  25th  of  Car.  2.  wherein  there  is  a  Clcuife  vf  Rejlitn- 
tion  of  Forfeiture  &c.  And  the  (^ueftion  was,  whether  or  no  this  had 
reftored  the  Party  to  his  Right  of  Prefenting.  Per  North  Ch.  J.  Tho' 
the  King  does  pardon  the  Simony,  yet  the  Difability  remains  itill  upon 
the  Perfon,  and  renders  him  incapable  of  the  Benefice,  as  was  relblved 
in  the  Cafe  of  ^^JjtlUpjSi  and  DtltC  lately.  But  the  Court  was  di\  ided 
in  Opinion,  and  that  which  made  the  Difficulty  of  the  Cafe  was,  becaufe 
the  King  had  prefented  here  before  the  KSt  of  Pardon  i  and  altho'  the 
King  may  revoke  his  Prefentation  by  exprefs  Words,  yet  whether  or 
no  the  general  Words  of  Reltitution  contained  in  the  Pardon  ihall 
amount  to  a  Revoking  of  the  Prefentation,  andof  reltoring  the  Party 
to  his  Right  of  Prefenting,  is  the  Great  Queftion.  £t  adjornatur. 
Freem.  Rep.  198.  Trin.  167J.  C.  B.  The  King  v.  Turvill  and  the  Bi- 
lliop  of  Lincoln. 

11.  The  King  pardoned  inter  alia,  all  Judgments  and  Conviftions /"yr 
vot  coming  tv  Church.  And  it  was  agreed,  that  this  Pardon  did  not  only 
pardon  the  Conviftion  of  Recufancj,  but  alfo  rejhred  the  Party  to  his 
Abtlity,  notivithjlanding  he  had  not  conformed.  3  Lev.  333.  Trin.  5  Vv  . 
&  M.  C.  B.  Lord  Petrev.  the  Uni\erlity  of  Cambridge. 

12.  A.  w  as  indifted  and  tried  at  Bar  tor  High  Treafon  ;  and  it  v^-as 
objefted  to  the  E\  idence  of  B.  that  he  had  Jhod  in  the  Pillory  upon  a 
Judgment  in  an  Information  for  Perjury  ;  and  it  was  held  by  Holt  Ch. 
j.  that  he  was  rejhred  by  the  General  Pardon  of  2  W^ .  &  M.  which 
operated  by  Way  of Relloration,  'A.\\^-xva.^Q\i\\\\  a  neia Creature.     And 

it 


Prerogative  of  the  King.  55 

^t  was  inlifted,  that  the  Infamy  and  Difabilicy  in  this  Cafe  riovved  from 
the  Jiidgme;it^  and  not  from  the  Criviic^  which  might  be  pardoned  eveii 
by  the  A7//^  alone,  tho'  where  it  ilows  from  the  Oriiiie,  it  can't  be  par- 
doned but  by  Jciof  Parliamem.  Salk.  689.  Pafch.  7  W .  3.  B.  R.,  The 
King  V.  Crosby. 

13  A.  was  convi£led  nf  ii.'^fr/'ct/;)';  and  upon  this  his  Evidence  being 
objefted  to,  the  Record  v/as  produced,  and  the  f  udgm.ent  was  to  pay 
500  Marks,  but  was  notto  Jland  in  the  Pillory.  This  being  held  to  be  a 
good  Objection  (becaufe  the  Dilability  arifes  from  the  Infamy  of  the 
Crime,  whether  the  Punilhment  he  int'amous  or  not)  it  was  then  inlilt- 
cd  to  be  within  the  late  General  Pardon.  It  feems  to  have  been  held 
per  Holt  Ch.  J.  that  the  Conviction  was  pardoned,  and  the  Party  rc- 
Jforcd  to  his  Credit  by  the  Act  of  Parliament,  but  that  the  King's  fpecial 
Pardon  could  not  have  rellored  his  Credit,  theDifability  in'this  Cafe 
being  incurr'd  by  the  Lijaniy  uf  the  Crime,  and  not  ot  the  Puitllbment. 
Salk.  690.  Mich.  12  W.  3.  B.  R.  The  King  v.  Ford. 

14.  A.  having  been  attainted  and  pardoned,  and  permitted  to  go  be- 
yond Sea,  his  Creditors  moved  to  charge  him  in  Cujlodta  -  but  Holt  Ch. 
j.  refufed  it,  for  this  would  <^/6ytv/?  the  Qj.ieen's  Pardon,  bv  difibling 
him  from  going  beyond  Sea,  which  was  the  Condition  o(^  the  Pardon'i 
and  there  is  no  Reafon  that  the  Pardon  Ihould  enure  for  the  Beueht  of 
the  Creditors,  to  the  Prejudice  of  the  Party,  f.nd  put  them  in  a  better 
Condition  than  before  i  for  if  the  Attainder  had  continued  he  would  have 
been  hanged.     Salk.  500.  Hill,  i  Ann.  B.R.  Foxworthy's  Cafe. 

15.  The  Crime  being  pardoned  cleanfes  the  Party  Irom  the  Guilt.     Per  Irdifchnrs^es 
Raymond  Ch.  J.  Gibb.  108.  and  fays  it  was  exprefsly  adjudged  ib -per  -^'^  tlicHf- 
Holt  Ch.  T.  in  the  Cafe  of  Aaron  Smith.     2  Salk.  689.  tecb  and 

,     .  ,  ces  of  the 

Crime.     12  Mod.  T19.  The  King  v.  Gi-oenvclt. A  General  Pardon  doth  difchar?e  not  only  the 

Punillimcnt  which  was  to  have  been  intiidted  upon  the  Pcrlbn  tiiat  did  commit  the  Offence  pardoned' 
but  alfo  the  Guilt  of  the  O.HFence  it  fclf  It  pardon.s  Culpa  fp  clearly,  that  in  the  Eye  of  the  Law  the  Of. 
fender  is  a.s  innocent  as  if  lie  never  had  coniniictcd  the  Of!enc^,  ib  far  doth  Mercy  extend  therein  -> 
L.  P.  R.  270.  Tit.  Pardon. 

1 6.  If  an  Indiilment  on  the  Statutes  of  Forcible  Entry  be  removed  into 
B.  R.  and  the  Defendant,  having  been  turned  out  of  Polielfion  by  the 
Grant  of  Reiticution  to  the  Prolecutor  by  the  fuilices  of  Peace,  tra- 
yeries  the  Force  in  the  King's  Bench,  and  then  the  Ortence  is  pardoned 
by  a  General  Pardon,  the  Court  cannot  proceed  ori  the  Trial,  notwith- 
Itanding  the  Defendant  would  waive  the  Benefit  of  the  Pardon,  be- 
caufe it  appears  iudiciall)',  that  the  King  can  have  no  Benefit  of  a  Fine 
from  the  Defendant,  if  a  Verdicl  pal's  againll  him.  Hauk.  Pi.  C.  154. 
cap.  64.  S.  63. 

17.  Serjeant  Hawkins  fays.  It  feems  to  have  been  always  agreed^ 
That  the  Forfeiture  oi  Goods  ly  Homicide  je  defendend'o  may  be  laved  by 
.1  r..rdon  (which  in  this  particular  Cafe  leenis  to  purge  the  OlfenCe  ab 
initio.)    2  Hawk.  PLC.  3S1.  cap.  37.  S.  3. 

iS.  It  feeins  agreed.  That  notu  ithilanding  the  King's  Pardon  to  a 
iSiviGniJi  coming  into  a  Church,  contrary  to  the  Purport  of  31  Eiiz.  6.  or 
to  an  Officer  coiuing  into  an  OJ/ice  by  a  corrupt  Bargain,  contrary  to  the 
Purport  of  5  &  6  E.  6.  16.  may  iave  fucia  Clerk  or  Officer  from  any 
criminal  Profccution  in  Relpetc  of  the  corrupt  Bargain,  yet  itlhall  nor 
enable  the  Clerk  to  hold  the  Church,  nor  the  Olhcer  to  retain  the  Of- 
fice, bccaule  they  are  ablolutely  difablcd  by  Statute.  2  Hawk.  Pi.  C: 
396.  cap.  37.  S.  56. 

19.  Pardon  of  Treafon  or  Felony,  even  alter  a  Conviclion  or  At-  j^"^  ^-f^: 
tainder,  docs  fo  iar  clear  the  Party  from  the  Inlainy..  and  ail  other  "V-fifdm:  - 
Conicquenccs  ot  his  Crime,  tnat  he  may  not  only  hair  an  Action  tor  a  iq^^^p^j,.. 
Scandal,  in  calling  him  Iraiior  or  Felon,  after  the  Time  of  the  Pardon,  dirofthe 
but  may  alio  l:e  a  good  ^t'itnefs,  notwithltanding  the  Attainder  or  Con-  iVijJw?  r/' 
viction  ;  becaufe  the  Pardon  makes  him,  as  it  v.cre,  a  new  Man,  and  ''^    '•'•'•' 


56 


Prerogative  of  the  King. 


■r 


ona  Convic- gives  him  a  new  Capacity  :ind  Credit.     2  Hav/k.  PI.  C.  395.    cap.  37. 

tionof  Man-  «     .o 

flauglitcr,  ■  ^ 

lias  the  lime  Etfcft  as  to  this  Piirpofe  as  the  Burning  weald  have  Iiad,  which  is  agreed  to  rejlore  the  P.irty 

to  Us  Credit      zHawk.  PI  C.  :;9;.  cap  57.  S.  49.> But  it  has  been  adjudged,  That  a  Pardon  is  0/ 

no  Manner  of  Force  as  to  this  Purpofe,  ///.'  it  has  tafs'd  the  Great  Seal,     z  Hawk.  PI.  C.  595.    cap. 
5;.  S.  50. 


(U.  a.  16)     Pardon.    Plcadlng.s. 

F  a  Man  be  oiitkzvcd  in  frefpafs  at  the  Suit  of  the  King,  and  has 

Pardu'/i^  yet  he  Jfjall  not  plead  Not  Guilty  after  i  quod  nota.     Br. 

Charters  de  Pardon,  pi.  30.  cites  22  KK.  47. 
Iftherebe  a  2.  A  Pardon  was  produced/or  Felony.^  which  \w\.\s  variant  from  the  In- 
'^'■^^^'^'^^^'°^'  difiiiiciit  and  from  the  Name;  and  yet  iaecaufe  it  appeared,  that  it  was 
Re'cwdon  ^^e  Will  of  the  King  that  he  Ihould  be  pardoned,  he  was  remitted  to 
■which  a  Ward,  and  refpited.  Br.  Charters  de  Pardon,  pi.  32.  cites  26  AC  46. 
Man  iscon- 

vifted  or  attainted,  and  his  Charter  of  Pardon,  yet  //  there  he  no  Reptznavcy  to  intend  that  the  fame  Per- 
fin  or  Thing  arc  meant  in  both,  it  may  he  fupplied  by  proper  Averments.  And  therefore,  if  one  be  indifted 
by  the  Mame  of  J.  S.  Yeoman,  and  pardoned  by  the  Name  of  J.  S.  Gentleman,  or  indicted  by  the 
Kame  of  B.  the  Ta.sker,  and  pardoned  by  the  Name  of  B  the  Son  of  W.  he  may  make  good  the  Va- 
riance, by  averring  that  he  is  the  fame  Perfon  intended  in  fuch  Indictment  and  Pardon ;  or  if  in  an  In- 
dldtment  of  the  Death  of  J.  S.  the  Stroke  be  fuppofed  to  have  been  given  the  lit  of  Auguft,  and  in  the 
Pardon  on  the  ^d.  the  Party  may  aver  that  the  Death  of  one  and  tlie  fame  J.  S.  are  intended  in  both. 
And  if  fuch  variant  Pardon  be  pleaded  witiiout  fuch  Averment,  it  feems  that  the  Court  mav  in  Difcre- 
tinn  give  the  Party  farther  Day  either  to  perfeft  his  Plea,  or  to  purchale  a  better  Pardon,  z  Hawk.  Pi. 
C.  5yS.  cap.  37.  S.  66. 5  Inft.  240. 

3.  A  Man  indi£ied  of  7'rcfpafs  came  "without  Procefs,  and  pleaded  Pardon 

of  the  King  of  all  Trelpajfes,  and  of  this  vouched  Record,  and  had  two 

Days   to  have  his  Record.     Br.  Charters  de  Pardon,    pi.  33.  cites  27 

Aif.  58. 

S.  P.  Or  he       4.  If  a  Man  is  indiiJed  of  the  Death  of  a  Alan,    and  arraigned,    and 

nay  plead     pkads  Pardon,  and  is  difcharged,   and  after  Appeal  is  brought  againlt  him, 

Ve^    d   f     ■^"'^  '"'■'^  Plaintiff  is  nonfaited,  and  the  Defendant  arraigned  upon  the  De- 

Diicha'-'^e,    claration  jor  the  King,  and  pleads  the  Charter  again,  there  he  ought  to 

and  have     fiew  it,   not'-^ithflanding  it  isas  allo-wed  of  Record  before.     Br.  Ciiarters  de 

Day  to  Pardon,  pi.  15.  cites  11  H.  4.  41. 

•Giewit.    Br.  i   r        ■>  t    t 

J^Ionftrans,  ph  36.  cites  S.  C. 

S.P.  aHawk.      ^,  He  who  pleads  Not  Guilty  cannot  plead  Pardon  after,   unlefs  it  be  of 
V-'c^^.   I'Jter  Date,  and  the  C/i^rr^i^r  was  allowed,  notwithftanding  that  \t  va~ 
'"■   '  '■  ried  in  Names,  and  Day  of  the  Indictment  and  the  Appeal ;  but  it  does  not 
appear  what  Variance;  the  Reafon  feems  inafmuch  as  it  was  of  Ap- 
peal of  Death,  and  a  Man  cannot  be  twice  killed  i  contra  of  Robbery. 
Br.  Charters  de  Pardon,  pi.  15.  ches  11  H.  4.  41. 
Jenk.  129.  6.  If  a  Felon  has  Pardon  to  plead,  and  pleads  Not  Guilty,  he  Hiall  lofe 

p1,  62.  fiys,  ^Yie  Advantage  of  his  Pardon,  and  ihall  not  plead  it  after.     Br.  Coronc, 
KWpar-^    pi.  199.  cites  35  H.  6.  I.  &  concordat  19  H.  8.  and   in  H.  4.  41.  per 
donf a  Fe-     Cheynici    but  contra  M.  3  M.  I. 
Ion,  and  it  is 

fliewn  to  the  Court,  and  yet  the  Felon  pleads  Not  Guilty,  and  waives  the  Pardon,  he  fhall  not  be 
liang'd  ;  for  it  is  the  King's  Will  that  he  fliall  not,  and  the  King  has  an  Intereft  in  the  Life  of  his 
Subjeft  The  Books  to  the  contrary  are  to  be  underftood  where  the  Charter  of  Pardon  is  not  fhevvn  to 
the  Court.     By  all  the  Judges  of  England. 

Serjeant  Hawkins  fays,  It  is  certain  that  a  Man  may  waive  the  Benefit  of  a  Pardon  under  the  Great 
Seal,  as  where  one  who  has  fuch  a  Pardon,  docs  not  plead  it,  but  takA  the  General  llTuc,  afer  whicli 
he  fhallnot  refort  to  the  Pardon.     2  Hawk.  PLC.  396.  cap.  37.  S  59. 

Br.  Laches,  7.  B.  Sheriff  oi  the  County  of  O.  returned  an  Exigent  .^uartn  exa^^fs 
pi  6.  cites  jj^  Q  i^  and  tendered  to  avrr  that  the  Df^endant  is  outlaived,  upon  which 
^■^-  "  ijjued 


Prerogative  of  the  King.  t^-j 


ijfued  Certiorari^  and  the  Coroners  returned  him  outlawed  by  the  fame  Esi-  2  Hawk.  PI. 
liiit,  by  which  the  Sheriff  ivjs  amerced  to  50  /.  and  the  EJlreats  of  it  fent  ^  5'^>-  '^•'f- 
into  tU  Exchequer;  upon  which  Procefs  ilfucd  againll  him,  by  which  ^it^^S '[^''' 
he  came,    and  Jhewed  Pardon  of  all  Mifpri/ions^    Offences  and  Contempts 
done  iiiefne  between  the  Certificate  of  the  C-.roners  and  the  Anicr cement  ad- 
judged^ and  prayed  to  be  dilmils'di  but  the  Barons  awarded  him  to  the 
jFleet,  by  which  he  had  Habeas  Corpora  out  of  B.  R.  to  the  Warden 
of  the  Fleet,  who  brought   him  to  the  Bar,  and  ihewed  the  Caufe 
aforefaid,  and  there  he  pleaded  the  fame  Pardon  and  \V  rit  of  Allow- 
ance, and  found  Surety  if  &c.  and  the  Attorney  of  the  King  de- 
murr'd  upon  his  Plea  ;  and  per  Cur.  Where  the  EJlreats  are  fent  into  the 
Exchequer  J  as  abo\  e,  yet  the  Record  remains  in  Bank,  and  there  it  pall  be 
travcrjtd,  and  tberc  the  Pardon  Ihall  be  pleaded,  and  not  in  the  E.xchcquer 
where  the  EJlreat  is.     And  Per  Fortefcue  Ch.  J.  the  Points  are,  If  the 
Words  of  the  Pardon  are  fufficient  ?  and  if  the  Sheriff  be  attainted  by 
Certification  of  the  Coroners?  and  if  the  Sheriff  has  furceafcd  his  Time 
to  plead  his  Pardon,  or  not  ?    Br.  Charters  de  Pardon^  pi.  25.  cites  36 
H.  6.  24. — And  fays,  that  37  H.  6.  21.it  appears  that  the  Sheriff  brought 
Special  NV'rit  out  of  Chancery  in  Nature  of  an  Audita  Querela, ^by 
Force  of  his  Charter,  directed  to  the  Juftices  of  B.  R.  that  they  do 
Right  to  him,  by  which  he  had  the  Habeas  Corpus.  And  the  Opinion 
of  all  the  [ulticcs  was,  that  the  Pardon  iliall  ferve  the  Sherilf  i  for 
thofe  Words  Mifprifion  and  Oflence  iliall  fer\  e  him,  lor  it  is  Miipri- 
lion  and  it  is  O.fencei  and  tho'  the  Pardon  be  before  the  Amercement, 
yet  the  Pardon  is  good  ;  tor  the  Falfe  Return  was  the  Olience,  which 
was  before  the  Pardon,  and  then  when  it  is  pardoned  no  Amercement 
ought  to  be  allefs'd,  becaufe  it  is  pardoned i  and  if  the  Jullices  had 
had  Conufance  thereol,  they  would  not  have  allefs'd  the  Amercementi 
and  the  Party  has  not  furceafed  his  Time  to  plead  it  i  for  he  had  net 
Day  to  plead  it,  nor  Caufe  till  the  Amercement  was  allefs'd  and  cllreat- 
ed,  and  Procefs  made  for  it.      And  this  Citfe  was  argued  in  the  Ex- 
chequer Chamber  by  all  the  Juftices  j  &  per  tot.  Cur.  A  Pardon  grant- 
ed at  the  Suit  of  the  Party /?^//  be  taken  more  Jlrong  for  the  King,  and 
'morejlrong  again]}  the  Party ;  but  a  General  Pardon,  or  Pardon  granted 
exmeroMotu,  iliall  be  taken  more  llrong  againft  the  King,  and  moll 
for  the  Benefit  oi  the  Party;  for  it  is  intended  there  that  the  King  is 
apprifed  of  the  Matter  3  Contra  where  it  comes  by  Suit  of  the  Party, 
or  by  Surmife:  And  it  wasfiid,  that  where  the  Sheriff  returns  Quarto 
exattus,  and  the  Coroners  abo\  e  certify  that  the  Defendant  is  out- 
lawed,   it  Ihall    be  intended  that  the  Certificate  of  the  Coroners  is  true, 
becaufe  they  are  Judges  of  it ^  and  the  Return   of  the  Sheriff  is  lallc. 
Quatermain's  Cafe. 

8.  Where  a  Man  pleads  Pardon  granted  by  Parliament,  \\t  ought  to  ^-^   Br. 
aver  that  he  is  not  any  of  them  who  are  excepted,  and  that  he  was  not  yld-  P'*i'lwmenr, 
herenttoM.  who  was  excepted.     Br.  Charters  de  Pardon,  pi.  46.  cites  8  s  C^~^* 
E.  4.  7.  by  the  Jullices.  ]\:,.k.  izc). 

9.  And  fo  of  all  other  Exceptions.  Br.  Charters  de  Pardon,  pi.  46.  pi  6.i-  cites 
cites  8  £.4.7.  '  SP'^KZur 
Fi-cem.  Rep.  84.  Pafch.  16-5.  in  Cafe  of  Philips  v.  Crawly. — S.  P.  2  Hawk.  PLC.  ;96.  cap^-.  S  60 

S  P.  per  Doderidge  J._  2_Roll.  R,  507.  Hancock'.s  Cafe. S.  P.  Voy  where  Pan!o}i^,  ?,i-M\it.e\ 

Cuftom,  orthc!il«,  as  Prclcription  &c.  makts  Exception  or  Vore\i\-\\e,  orCoiidiaon,  or  a  Thin"- wliicli 

amounts  to  ii',  tJ  ofeJh.Tll  be  pleaded  exprefsly     Br.  Charters  dc  Pardon,  pi. 66.  cites4H.;.S. S^P.   Br. 

Pleadings,  pi.  124.  cites  8  £.  4.  7.  &  4  H.  7.  8. 

\Alici"  difiibling  Excei'ticTis  are  hi  the  Body  of  an  Jcl  of  General  Pardon,  there  the  Parly  cuiht  to  aier 
that  le  IS  not  -within  the  Exceptions,  but  not  i'o  where  the  Exceptions  arc  only  in  the  Prjvijh  of  the  Aft  ;  per 
Twifdc'i; -which  t!ie  Court  agreed.  Keb  20.  Pafch.  i  ;  Car.  2.  Whitwick  v.  Osb.iilon. S.  c!  ar- 
gued I  Lev.  26.  hutno  Eefolution. ^HoltCh.  J.  agreed,  that  there  were  many  Authorities,  that  he 

that  pleads  an  A6r  of  Pardon  Ihould  fieiv  that  he  was  net  tvtthm  the  Exception  of  the   Aft    and'  cited  - 


613.  HiH.  13  \V. 

Scrjcsnt 


58  Prerogative  of  the  King. 


Serjeant  Hawkins  fays,  IF  the  Body  of  a  Statute  be  getieral  at  to  all  Perfbns  wbatfbever,  and  aftcr- 
•wards  fome  arc  excepted  in  tlic  Provifocs,  pcrliaj-sit  tnay  be  Ulflicicnt  to  plead  fuch  Pardon  without  anv 
Averment,  That  he  who  pleads  it  is  noi  e  of  the  Perl'oiis  fo  excepted,  it  be i;;g  a  general  Iluie,  tlut 
■where  a  Man  ij  within  the  general  Words  (jf'tlie  Bodv  of  a  Record  or  I). ed,  wliich  ii  qualified  by  fub- 
feijuent  Proviffjes,  it  is  fuiTicicnt  fir  iiim  to  bring;  iiis  Cafe  within  fuch  general  Words,  and  tiiat  the  Ex- 
ceptions ill  fuch  Provifocs  ought  to  be  flicwn  of  tlie  other  Side.    2  Hawk.  Pi.  C.  7,>^-.  cap.  37.  S.  60. 

IfaPerfon  10.  Jud  that  7/  f.  S.  he  excepted^  and  there  ^rt  three  of  the  Name,  and 
who  would  the  Mthcr  pleads  the  Pardon,  kc  ought  tojhew  /V.  Br.  Charters  de  Par- 
tage  of  a       don,  pi.  46.  Cites  8  £.  4.  7. 

Pardon  be 

of  the  fime  Name  with  one  of  tlie  Pcrfons  excepted  by  Name,  it  is  Paid  that  it  will  not  be  fiifficient  for 
him  to  aver  that  he  was  none  of  the  Perfons  excepted,  without  adding  that  he  is  a  dilfercnt  Perfon  from 
fuch  other  of  the  fame  Name.  But  Serjeant  Hawkins  lays,  How  it  can  be  tried,  unicfs  it  appear  by 
5ome  Addition  to  the  Name  in  the  Statute,  may  deferve  to  be  confidcrcd.  2.  Hawk.  PI.  C.  597.  cap. 
37.  S.  60. 

II.  J.ndwhuTt  it  is  pleaded  in  Pais,  where  the  yittortiey  of  the  Kino-  is 
fwt  pycfefit  to  cuafefs  the  Averment^  they  Ihall.  make  Proclamation  ;  and 
per  Markham,  the  Court  may  rejoin   for  the  King.     Br.  Charters  de 
Pardon,  pi.  46.  cites  8  E.  4.  7. 
Br.  Charters      12.  If  a  Man  be  brought  into  Court  by  Capias  Utlagatnm  upon  Appeal^ 
de  Pard()n,    and  he  pleads  the  Pardon  of  the  King  agauiji  the  King,  he  ihall  ha\e  ..iW/V 
s'  c^b'^'^'^^   /crf/rtj  againft  the  x\ppellant,  without  foc-iving  Matter  of  D  if  charge  a^auij} 
feemsto^bc    ^^"''-     21  E.  4.  73.  b.    Per  Hullej  Ch.  J.    who  Iheued   thereof  Pre- 
mifprinted.-  c  dent.s. 
Bu  t  contra  it 

is  m  Deht  or  Trefp^fsi  where  he  if  in  Execution  ;  for  there  he  ought  to  pew  Acquittance,  or  other  J/.tt- 
t:r  which  proles  the  Plaintiff's  Confent.     Ibid. 

S.  P  pr-r  all  13.  If  Recognizance  rf  Delt  pafcs  for  the  King  upon  IJpie  tried,  and  after 
the  Juihces  ^he  King  pardons  it,  xh\&  Ihall  not  be  pleaded  betivecn  Vcrdiff  and  Judgment, 
Scacc"V.r.  biit  after  Judgment.     Br.  Charters  de  Pardon,  pi.  "5.  cites   11  H.  7.  10. 

Jours,    pi. 

54.  cites  S.  C.  and  7  5  H.  (J.  i.  accordingly. 

S.  p.  Lane  ^\-  l^  ^!iod ei  dforceat  be  brought,  and  a  wrongful  Entry  is  found, 
71.  Bcntly  and  a  General  Pardon  in  Parliament  pardons  all  Offences,  if  the  Tenant^ 
V.  Leigh.—  Yvhen  Judgment  is  given  againll  him,  docs  not  fuggeji  to  the  Court,  that 

k'd'EUis  "L'ither  he  nor  his  Offence  are  excepted,  \i  Judgment  be  entered  .^tiod  Ca- 
•whether,  puitiir,  it  IS  not  Error  ;  tor  there  are  many  Exceptions  in  a  Pardon  i  and 
fuppofing  in  a  Civil  Matter  the  Court  is  not  bound  ex  Officio  to  regard  it,  but  they 
there  was  a  rn ay  f  they  Will  ■-,  and  therefore  if  Judgment  be  given  Sed  non  in  Mi- 
Pardon  and  ^^'•'•'^'^d'''  ^^^^  pardonatur,  it  is  good;  tor  the  Judges  may,  if  they 
thePartvdid  will,  take  Conufance  of  a  Pardon,  tho'  it  be  not  pleaded.  Jenk.  258. 
not  plead,  pi.  54. 
nor  the 

Judfes  did  not  take  Notice  thereof,  whether  the  Party  might  have  Remedy  hy  Writ  of  Error?  And  El- 
lis fiid  No  ;  becaufe  they  would  alledire  nothing  for  Error  bitt  what  did  appear  in  the  Record;  to  which 
Vau^han  atfented.     Frcem.  Kep.  S4.  Pafch.  1675.  in  Cafe  of  Phillips  v.  Crawly. 

Serjeant  Hawkins  fays,  It  feems  agreed,  that  if  any  Perfons  are  excepted  out  of  a  General  Pardon, 
the  Court  is  not  bound,  and  fome  have  held  that  it  has  no  Power,  in  Dilcretion  to  give  any  Perfon  the 
Benefit  of  it,  mlefs  it  be  pleaded.  2  Hawk.  PI.  C.  596.  cap.  37.  S.  60. But  when  a  Pardon  is  ge- 
neral, without  Excepti.m  of  Any  Per/on  or  C.n/fe,  in  fuch  Cafe  the  Judges  fhall  take  Notice  of  it;  per 
Doderidge.  Z  Roll.  R.  307.  H.vicock's  Cafe. The  Party  need  net  fo  aver  that  his  Offence  is  not  ex- 
cepted in  a  General  Pardon,  becaufe  the  Juftices  have  Notice  fu.4icient  of  Oifences  excepted  by  the 
Words  of  the  Pardon,  but  not  of  Perfons  ;  but  this  red-;  upon  the  .Averment  ;  by  the  Opinion  of  both 
the  Ciiief  Juftices,  to  which  the  Lord  Keeper  agreed.     M0.619.   Mich.  42  &  43  Eli?.,  in  Cafe  of  Blake 

V.  Allen Where  a  General  ."ttJ  ot  Parliiment  excepts  certain  Kinds  of  Gvww,  there  is  no  Need  to 

aver  that  the  Crime  whereof  the  Perfon  is  indii^ted,  is  not  one  of  fuch   excepted  Crimes ;  bur  the  Court 

CMS:ht  judicially  to  take  Notice  whether  it  be  excepted,  or  not.     2    Hawk.   Pi.  C  397.  cap    37.  S.  62. 

.-iljo  where  fuch  a  Statute  excepts  only  one  particulrtr  Perfon,  it  has  been  faid  that  there  is  no  Need  of  an 
Averment,  that  a  Perlbn  indicted  is  not  fuch  Perfon;  but  that  the  Court  is  to  cake  Notice  whether  he 
be,  ornot.     2  Hawk.  PLC.  397.  cap.  37.  S.  63. 

15.  In  Debt  the  Defendant  pkitded  Outlawry  in  the  Plaintiff  at   the 
Suit  of  one  H.  in  C.  B.    The  Plaititijf  pleaded  the  Pardon  cf  ^i  Eliz. 

did 


Prerogati\e  of  the  King.     "  59 

mid  alio  that  he  brought  Sciye  facias^  and  H.  ivas  ritnrucd  dead,  hx  w  hich 
he  was  adjudged  to  go  line  Die^  upon  which  Plea  the  Delendant  de- 
inurr'd  in  Law,  becuufe  it  was  not  averr'd  that  he  is  not  any  oi  the 
Perlons  excepted  out  of  the  Pardon,  as  7  £.  4.  7.  4  H.  7.  8.  Com. 
103.  But  it  Iccmed  to  the  Court,  that  the  Pardon  is  allowed  enough 
to  make  any  Man  anlWer  to  the  Action  ol  the  Plaincili'^  but  not  againlt 
the  Queen  ;  for  ihe  is  not  bound  by  the  Allowance.  Mo.  303.  Hill 
34  Eliz.  Alliley  v.  Harrifon. 

16.  A.  was  w^/tetrrt' after  Judgment  before  the  General  Pardon,  and 
died  after  the  Pardon.  His  Excaito-rs  make  Satislaction,  and  '-jitthout 
any  Prccefs  plead  the  Pardon.  Adjudged,  that  as  in  this  Cafe  no  Scire 
Facias,  nor  Capias  Utlagatum,  nor  other  Procefs  lies  againil  the  Exe- 
cutors, tliey  nvay  {after  ^.Visfddion  made)  come  in  gratis  'iijitbuut  Procefs 
lor  the  Necelfity  of  the  Cafe,  and  plead  the  General  Pardon,  w  ith  an 
AiK'rn/ent  that  they  are  nut  any  of  the  Perfons  excepted.  Adjudged  per 
Cur.  6  Rep.  79.  Tiin.  5  Jac.  Sir  Edward  Phitton's  Cafe. 

17.  A.  was  indided  ot'ftealing  iume  Plate  from  King  James,  whereas 
it  was  in  Truth  Queen  Anne's,  and  ftoln  from  her,  lor  Avhich  he  was 
pardoned  i  and  being  again  indicted,  tJicre  was  a  General  Pardon,  ex- 
cepting Goods  pitrkined  from  the  King  ;  the  Court  doubting  Avhether  A. 
was  within  the  Exception  of  this  Pardon,  advifed  him  to  plead.  Cro. 
C.  449.  Hill.  1 1  Car.  B.R.  Bell's  Cafe. 

iS.  In  Cafe  for  Words,   the  Defendant  juftifies  that  the  PlaintifFhad. 
fcrvcdd.3  a  Soldier  againff  the  King;  Plaintitf  demurs,  bv'  Kealbn  of  the 
General  Pardon.     But  it  was  adjudged  lor  the  Defendant ;  lor  that  the 
Plaintiff  ought  to  have  fJjcxvn  that  he  VJas  net  one  of  the  Perfons  therein  ex- 
cepted.    Ra}m.  23.  Mich   13  Car.  2.  B.  R.  Harris's  Cufe. 

19.  In  a  Sare  facias  brought  upon  an  Inquilition  againfi  A.  'isiho  oived 
30/.  to'J.S.  who  had  been  attainted  for  Aliirder,  and  executed,  A. 
pleads  x}a'xx.'i\\t  WA.?>  nvt  indebted  Modo  S  forma:  Hale  Ch.  E.  held,  that 
upon  this  iifue  the  A6t  of  General  Pardon  coald  not  be  giv.n  in  E.vidence, 
but  ought  to  have  heen  pleaded ;  this  not  being  a  General  Illue  within 
the  Intent  of  the  Act,  it  w^ould  have  been  u  good  Bar.  Hard.  421. 
Trin.  17  Car.  2.  The  King  v.  Barnard. 

20.  The  Earl  of  S.  was  bv  the  Convention;^  which  was  afterwards*        /;^" 
turn'd  into  a  Parliament,  Anno  1  W.  &  M.  impeached  by  the  Commons  j?,',,-,.^ 

for  High  Treafcn,   lor  being  reconciled  to  the  Church   oi  Rome  con-  \Vhether  Iw 
tfary  to  the  iStatute;  and  thereupon  he  was  committed  to  the  'io'-^er  by  the  mig'it.  ^^''■ 
Houfeot  Peers,  and  there  continued  till  the  Parliament  wasdiliblved,  Pj'^-^""'  ^ 
and  a  new  one  called,  and  now   (alter  a  long  Seihons)  adjourned  ibf  ti'e   'ifaTter 
two  Months.   ■  And  now  the  Earl  was  brought  to  the  Jiar   by  a  Habeas  returned  by 
Corpus,  and  his  Couniel  moved  that  he  might  be  difcbarged  upon  the  new  tie  f-Libsas 
yJct  oj  Oblivion,  which  pais'd  in  the  lalt  Seffions  of  Parlian^-i-.t,  'xbere-  ''-'"••.^"V  ^^^ 
iv  neither  his  Crime  nor  his  Perfon  were  excipted,  hut  clcaily    v\  itbin  the  j|^^"'(-^'j^g^ 
Act  oi  Pardon;     But  per  Cur.  Notice  cannot  be  taken  of  this  ylii,  unlefs  it  Roll    Ibid, 
be  pleaded  with  the  Averments  ;  becaule  there  are  feveral  Exceptions  in  in  Marg. 
it,  both  as  to  Crimes  and  Perfons,   therelbre  it  is  necelfarv  that  the 
Party,  who  would  have  the  Benelit  thereol,  iJiould  aver  himielfby  Pica 
capable  of  fuch  Benefit,  and  not  excepted  therein,  as  'tis  ruled  in  Plow- 
den,  and  other  Books  i  and  here  the  Lord  nt   the  Bar  cannot  plead  this 
Pard(jn,  becaufe  there  is  nothing  before  the  *  Court  Upon  which  to  s^ronnd  fiich 
Plea.     Carth.  131.  132.  Pafch.  2  W.  &  M.   B.  R.    The  Earl  ol  Salis- 
bury's Cafe. 

21.  iz  U'.  3.  2.  No  Pardon  pall  be  pleadable  to  any  Impeachment  by  the 
Commons  in  Parliament. 

22.  It  feems  plain,  that  P/rriYo/zj  o/'Manflaughter,  or  o.ny  other  Felony 
except  Murder  or  Rape,    remain  as  tliev   were  at  Common  Laiv  ;    from  . 
whence  it  loliov\s,  that  the  Pardon  of  the  Felonious  Killing  of  J.  S.   may 
be  well  pleaded  to  anindiiiment  of  Man/laughter  lor  killing  him.  2  Hawk. 
I'l,  C.  sS6.  cap.  37.  S.  iS. 

23,  He 


6o  Prerogative  of  the  Kin"- 


b- 


23.  ilc  who  pleads  a.  particular  Panion,  ought  to  produce  it  ftib  Pcde 
Si^tllt,  tho'  it  be  a  Plea  in  Bar;  becaufe  it  is  prefumed  to  be  in  his 
Cuitody,  and  the  Property  of  it  belongs  to  him  ;  yet  it"  a  Man  pleads 
I'uch  Pardon,  without  producing  it,  the  Court  viay  in  Difcretion  indulge 
him  a  farther  Day  to  put  in  a  better  Plea;  and  that  at  fuch  Day  he  may- 
perfect  his  Plea  by  producing  the  Charter,  2  Hawk.  PI.  C.  397.  cap. 
37.  S.  6.5. 


(X.  a.)     Charter  of  the  King.    No;/  Ohfiantc.     [The  On^ 

giml  thereof.] 

It  wasfaid     1   T  JO  ClUlC  Of  H.  3.  about  the  Year  1252.  the  Claufe  of  Non  Ob- 

that  Non      *  j^  itantc  ^vas  ufed  tirft  lu  Cnglaitti  bp  tljc  £^Ing,  ut  !j(0  ©raittiS  ann 

^^'^•^"'^  terf  OtljCt  iiBUtttnSC*     $^attljCUl  lt?ariSi  Call0  it  an  odious  and  deteltable 

rndr/?"!^  Claufe.  auo  Eopc  DC  Cljursitjp  tljcn  Iiifticiarp,  fetcljinn;  a  tiecp 
;« the  Court  ^igi)  at  tlje  ^tgijt  tijcrcat  ut  tf)e  jeims'gi  ©rant,  crtcD  out  of  lioti)  tljc 

oj  Rome,  io'^%\\\\z  anO  It,  iai^ing  It  UiaSi  a  Stream  derived  from  the  lulphureous 
mPut.^Fo".  Fountam  of  the  Ciergy.     @)peetl*  530- 

\x  aeainlt  the  faid  Couit,  for  inti-oducing  this  Claufe  of  Non  Obftante,  which  has  been  an  ill  Prece- 
dent and  mifchievous  to  all  Commonwealths  of  Chriltendom  ;  for  the  Temporal  Princes  perceiving 
that  the  Pope  difpenfed  with  his  Canons,  have  ufcd  their  Prerogative  to  dilpenfe  with  their  penal  Laws 
and  Statutes  where  before  they  had  caufed  their  Laws  to  be  religioufly  obferved,  as  the  Laws  of  the 
Medes  and  Pevfians,  which  could  not  be  difpenfed  with.  And  therefore  a  Canonill  faid,  Difpenfatio 
ell  I'tthiHs  quod  Vtiher.it  jus  comnnme.  And  another  faid.  That  all  Abufes  fhould  be  reform 'd  fi  duo 
tantum  Verba,  (vi^-  Non  Obfrante)  non  impedircnt.  And  Mat.  Paris,  in  Anno  Dom.  1246.  having  re- 
cited certain  Decrees  m.ide  in  the  Council  at  Lions,  which  were  beneficial  tor  the  Church  of  England, 
Sed  omnia  ha:c  &  Alia,  faid  he,  per  hoc  Repagulum  (Non  Obftante)  infirmantur.  Dav.  Rep.  69.  b. 
Pafch.  9  Tac.  in  C.  B.  in  Ireland,  in  the  Cafe  of  Commtnda. 

The  Laws  concerning  Non  Obftantcs  are  none  of  the  ancient  Laws  of  this  Land,  but  brought  in  by 
the  Pope.  The  Book  of  2  H.  -.  fo.  6.  b.  &  7.  firff  gave  Rife  to  this  exorbitant  Power  ;  yet  it  is  not 
the  Opinion  of  all,  or  indeed  of  any  of  the  Judges,  as  it  is  afiirraed  to  be.  Arg.  2  Mod.  261.  Trin.  29 
Car.  2.  in  the  Exchequer,  in  the  Cafe  of  Arris  v.  Stukely. 


"W 


(Y.  a.)     Non  Obftante.      Licences  upon  Penal  Statutes. 

'l)€B  an  3Ct  of  l^aritamcnt  generally  prohibits  a  Thing  up- 
on a  Penalty  which  is  Popular,  or  only  given  to  the   Kin^, 
bCCnUfe  it  niai)  be  inconvenient  to  UiiJCrfc  particular  Perfons,  (n  EefjJOt 

ofl^erfon,  place  anu  ^imc  $c.  tlje  lam  Ija^  uilien  poiucc  to  tljc 

JJ^ing  to  nifpenfe  tUItlj  particular  Perfons.     CO*  1 1»  Monopolies  88* 

*  s.  p  Per  2.  But  ujljen  tfje  parliament  \m  mane  an  9i.^  to  rcttrain  *  pro  Bono 
'cI'm^h' -^q  Publico  tljc  3!mportation  of  fc^jeral  forcm;n  $^anunifture0,  to  tl)e3n= 
Mich  7  t"^"^  f^>^^  f'J^  ©ubjcfts  of  tDe  Euto;  map  appl[)  tijemfemcs  to  tije 
Geo.  in  Sir  uiahinff  of  tlje  fain  £|9anufafturc0,  tijerc  tljc  tMiv^  cannot  for  a  pri^ 
Hanssioane-s  ^jfltc  ®m  ffraut  t\\t  folc  Jntportatiou  of  tijem  to  one  or  DiKcifc 
To\7d^  (uiitljout  anj?  timitation)  Ji^on  a)l)iTantc  tijc  act*    Co,  lu  Mom- 

the  King     P''^'  88* 

cannot  dif- 

penfe  with  a  Law  that  is  made  pro  Bono  Publico,  is  to  fay  that  he  can  difpenfe  with  no  Law  at  all,  for 

all  Laws  are  fuppofed  to  be  pro  Bono  Publico,    when  they  are  firil  made  ;  per  Herbert  Ch.  J.  Freem. 

Rep.  493.  Pafch.  16S2.  in  Sir  Edward  Hale's  Cafe. 

^.  As  tlje  lAino;  cannot  licence  a  Q3an  to  import  foreign  Cards,  nct- 
luitljffaniJing  tljc  Set  of  3  £•  4»  f^r  tijc  Eeafon  aforelaiD.    Co,  n, 

MoncpoUs  88. 
There  is  not      4*  JBJjcrC  a  ^tatUtC  concerns  the  Benefit  of  the  King  only,  IjC  UUI? 

any  Diffe-    tJifijcnfc  luitlj  It  bp  fl  J2oii  Oi^tlautc.   J^  7»  Ja.  13.  per  t^\z, 

5-  ^ut 


Prero§ati\e  of  the  King'.  6r 

5»  But  iUljCiX  a  Statute  concerns  the  Benefit  of  the  Subjea,  tfjCtC  j,,^  l.w  di'' 

tl)c  Utnu  cannot  tiiipcnfc  lujti)  re  bv  a  jl^on  Qb(!ante»   I).  7  i^ii.  ^*  penfia  with' 

BuM.'.n  15  Calt     pet  CUrUlUU  i'i  P'-' Bom 

I'uhlico,  for 
■ezery  Latv  is  fuppcfed  to  Lefo  ;  but  the  true  Dfficrencc  is,  wlien  the  Law  gives  any  particular  Pcrfon  an 
Intercll,  and  when  it  concerns  no  one  Perfon  n-ore  than  another  ;  for  there,  in  the  firll  Call-,  the  King 
cannot  difpenfe,  but  in  the  laft  he  may,  btcaufe  he  alone  is  injured  ;  for  though  fuch  a  Lawbe  pTO 
Bono  Subditorum,  yet  it  is  not  Singulorum,  biit  Populi  Complicari ;  and  no  One  can  hare  an  Attion,toi' 
as  well  every  one  ir;ay  liave  an  Aftion.  PcrA'aui^'iian  Cii.J.  Freem.  Rep  i;S.  Hill.  16- 5.  Thomas  y  Sorrcll. 

The  King  cannot  dilpenfe  with  any  Thing  that  is  forbid  by  the  Statute  de  Pilloribus,  nor 
with  the  Statute  againft  Mixing  of  Wine,  for  there  is  a  particular  \^'ropg  to  the  F.uyer.     Ibid,  i  ;9. 

In  Cafe  of  a  Common  Informer,  after  Action  commenced,  the  King  cannot  difpenfe,  becaule  the 
Beginning  of  the  Adiondoth  attach  an  Interclt  in  the  Party,  though  the  King  might  pardon  it  before 
Action  brought.     Ibid. 

In  fbnie  Cafes  the  King  cannot  difpenfe  where  no  particular  lutcreft  or  Acirion  was  given,  as  in  Cafe 
of  Simony,  or  Buying  of  Offices  &c.  but  that  is  became  the  Perfons  there  arc  under  an  abfolute  Dif- 
ability,   as  if  they  were  dead;  per  Vaughan  Ch.  J.  Ibid.  159. 

It  was  retoh'cd  tivat  the  King  could  not  diipenie  with  the  Difabiiity  upon  the  Statute  of  ;i  F.liz.  fi.  of 
Sir,!S!:y,  by  a  Non  Obftante  ;  for  wi.en  nn  AS  of  Failian;eiit  is  made,  that  difableth  any  Perfon,_or  maketli 
any  I'hing  void  or  t.artious  for  the  Good  of  the  Church  or  Commoiiiv^.tllh,  in  this  Law  all  the  King's  Sub- 
jects have  an  Intevcrt  ;  and  therefore  the  King  cannot  difpenfe  therewith,  any  more  than  witii  the  Com- 
mon Law'.     5  In  ft.  1  54.  circs  Mich,  i  5  Jac.' But  where  a  A.!/;rf<!  J)-o/;/i;/.f  anv  Thing  ?//n.'n  ^t  Peimltyi 

and  gives  the  Penalty  to  ihe  Kin^,  or  to  the  King  and  the  Iiiformer,  tliere  the  King  may  difpenfe  with 
the  Penalty  ;   at.d  this  Diverlity  is  warrantee'  by  our  Books.     ;  Inlf  1 54. 

6.  As  icijCrC  tijC  S)tnttltC  Cf  15  R.  2.  cap.  provides  in  the  Nc2;a- 
tive.  That  the  Admiral  ihali  not  hold  i^leas  of  any  Things  but  of  tijOfC 
lUljiCij  tueit  done  fiiper  Aktim  iJare,   tijC  iMW^.  CatlltOt  h\>  1)10  Clj-irtCt 

5ifpf!iCE  *  uiii!)  It  bp  a  S^aw  £»'uttante,  nno  gii^c  i^ou^tc  to  tiiC  SD= 
miral  to  (jolD  \^k^  n  pitnJiS  liJouiiLtits  uaiuc  aD  C^au',  liccaiUs  t:;i3 
statute  luflSj  niaac  far  tuc  Oiencfit  of  m  €)aci)cru    i),  ?  2a>  'Jo* 

7.  It  wasoidiiined  by  t lie  Statute  Staple  of  27  E.  3.  that  Merchants  £.^.^j..;,(j 
Aliens  might  bring  over  the  Sea  Merchandizes  of  the  Staple,   but  not 
Merchants  Denizens ;  aitU  after,  lit?  VCZ  ^Mmt  Of  ttjC  &!niX  anB  i;ts3 

Cotmfci,  for  certain  Eealcnd  l-^ufiar^e  uias  aranten  of  tlje  faia 
O3crd)an5i>c0  of  Dcnifcns ;  'ar.y  ti^em-pan  protianiattoit  uiaiJe 
tinij  rent  tQ  t\)t  Cisitoruci--^,  to  futilr  tijcii!  to  pais  til!  a  ccrijvtu 
Cnne,  paping  tije  Ctiffoms  a^  $t(icnis«»    am  becauie  that  the  laid 

Merchants  Denizens  doubteth  them  to  be  impeached  in  Time  to  come  lor 
their  Merchandize  which  they  have  fo  palled,  bv  Virtue  of  fuch  Grant 
and  Proclamation,  forafmuch  as  thev  were  made  out  ot  the  Parliament, 
the  King  willing  to  provide  lor  their  Surety  in  this  Behalf^  hath  ratified 
and  confirmed  in  this  Parliament  the  fame  &c.     34  E.  3.  c;!p.  21. 

8*  R(it»  ]3arl.  I  0. 5*  B^  15*  dje  Commons  prap,  Cfjat  tlic  f'^'vnne's 

statutes  for  Voidance  of  Aliens  out  of  the  Realm  t-C  !5Ct3  anlS  CU^  V;"-  ^^*"^- 

ciftcD;  to  io(ji€i)  tIjc ^iiitn:  agrees,  miw^  !ji0 liJreroptii.^,  tijat: Dc  n^'i v'' 
nui))  Dif-jcnre  iwtij  fucD  as  i-c  plcafc  -,  ano  nieteupon  m  common?* 
aniujcrco,  tijat  tDcir  3:iimmui'  iKasi  no  utijcr,  nor  c^it  fijal!  lie,  Dp 
tijcattJOfC^OD. 

9.  Rot*  i.^arl»  U  0*  5*  I2»  2i*  '^^t  Statutes  of  Piovifors  confirmed,  f/y^'lj^'^^ 
and  that  the  King  iliall  not  give  any  Protection  or  Grant  againlt  the  ^?"  ^^' 
Execution  of  them,  faving  the  King's  Prerogative  ^    tO  lll!)ICl/t!jC£\insT  k'^  ■•-^'' 

agrcctJ* 

10.  "Where  a  Statute  is,  1'hc7t  mne paJl pip  IJ'oo/,  rm/cfs  to  Calais,  the  D  54■^f!•••g• 
King  may  difpenle  with  it  by  Liteiiw,  and  tlnis  iejorc  Seifare^  and  Action  t}-''ij",^- 
taken  by  the  Party  &c.  and  this  with  Clauli;  of  Non  Obftante.     Br.  Pre-  p/ero-ati '■^!* 

rogalivc,   pi.  122.   cites  2  R.  3.   11.  may  licenfe 

anv  to  tr/iih 
•■^ithCcmmodilies  Ur.la'u.-ful,  asvitWas.  Law fr.!  ;  and  circs  R or.  Pari  19  H.  (J.  N".  15.  Et  Clauf  Ann. 
19.  H  ;.  and  that  R.  2.  in  the  aotb  Year,  gave  Leave  to  the  Merchants  of  Newcaftls  to  carry  Wools 
and  Fells  to  any  other  Port  bcfides  Ca'ai.>.,  which  was  renewed  to  them  Anno  5.  2T.  ard  50  H.  6  he 
granted  to  Benedict  lOi'.lJCr.I  Merchant  of  Flanders,  Mon  (■;b(hinte  any  Statute  in  Rcftralnt  60  Sack^  <>f 
Wool  ;  fo  H.  4.  difpofed  of  great  Qiiantitics  cfTrr:,  and  H  t.  raifcd  great  Sums  of  Money  in  gra-ning 
J-eave  to  Merchants  to  tt-.ide  Inward  and  Outward  Commodities,  as  to  Alonzo  de  Bruges  great  Pro.or- 
tion  of  lI'o.:d  Anno  Soao,  ar-d  a  I^lultitude  of  other  Ki:;d  of  Grain  ar.d  otiier  prohibited  Thii^s,   as 


62  Prerogative  of  the  King. 

in  Anr.is  10.  11.  2i.  pvout  P.itct  e>;  Conipofitione  in  [inter]  H. -.  and  Dudley. Ibid,   cites  Hill.    ; 

jac.  B.  R.  Rot.  liS  Information  ug.iinll  il'.alXifS,  upon  the  Statute  5  Eli?.,  for  Shippiii;;  and  Tranl- 
portinc  of  Sheep-skins,  and  he  pleaiied  the  Grant  of  Qu.  Elir..  Anno  5;.  to  one  Gilbert  Lcc,  to  tranf^ 
port  the  Number  of  202000  a  Year  for  10  Vears  to  come  Sec. 

s.  C.  cited  II.  The  King  licenfed  one  to  trnnfport  BeU-iacttdl,  Kon  Olfiante  any 
hiW'\\\\imig^^^i,ff,jjij,jg_^  or  to  he  juade  ;  alccrwards  ;m  Aft  was  made,  prohibiting 
J.  3  Bulft.  J.  ^j^^  Exportation  orBcll-mcttal,  upon  a  Penalty.  It  feemed  to  Baldwin 
and  Shelly,  that  by  this  Aft,  to  which  every  Man  is  Party,  the  Li* 
ccnce  was  revoked,  and  that  the  King  cannot  difpenfe  with  a  new  Law 
to  be  made,  bcibre  it  is  made,  as  he  may  in  Things  to  come,  in  which 
he  hath  an  Inheritance  ;  as  he  may  grant  to  one  to  be  dikharged  of 
Taxes,  and  Sublidics  to  be  granted,  and  it  is  good.  Quxre.  Dy.  52. 
pi.  I.  2.  Hill.  33.  H.  8. 

12.  The  Aft  4  H.  7.  cap.  9.  prohibits  the  Importation  of  Gafcoipie  Wine^ 
hilt  orily  in  Englijh  Ships,  and  the  Mafter  and  JVIariners  being  Englilh,  un- 
der Pain  of  Forfeiture  &c.  afterwards  the  King  by  Letters  Patents  li- 
cenced one  to  import  600  Tun  of  that  Wine  in  any  Ship^  Non  Objiantc  the 
Statute.,  without  faying  any  Thing  of  the  Alariners  &cc.  And  by  the  Sta- 
tute ol  32  H.  8.  cap.  14.  it  is  enafted  that  the  faid  Statute  flaall  Hand  in 
liiU  Force,  fo  that  from  henceforth  no  Perfon  Ihall  attempt  to  do  any 
Thing  contrary  thereto,  upon  the  Pain  limited  in  the  faid  Statute.  And 
upon  Information  brought  in  the  Exchequer  againft  the  Alfignee  of  the 
Patentee,  tor  importing  contrary  to  the  4H.  7.  9.  he  pleaded  the  King's 
Grant,  without  a  Proiert  hie  in  Curia  of  the  Letters  Patents.  And  the 
better  Opinion  was,  that  for  that  Reafon  the  Plea  was  ill  ;  but  as  to  the 
Matter  in  Law,  whether  the  Grant  was  good  or  not,  they  feemed  not  fo  ; 
qujere.  And  by  the  Report  of  Baron  Fortefcue,  the  Judgment  was 
given  lor  the  King  the  fame  Term,  lor  the  Infufficiency  of  the  Plea, 
but  not  for  the  Matter  in  Law.  Ideo  inde  qu33re,  D.  54.  pi.  17.  Mich. 
34  H.  8.  Richard's  Cafe, 

13.  NoA[i  can  bind  the  King  from  any  Prerogative  which  is  fole  and 
infeparable  to  his  Perfon,  hut  that  he  vny  difpenfe  luith  it  by  a  Non  Ob- 
ftante  ;  and  this  Royal  Power  cannot  be  reltrained  by  any  Aft  of  Par- 
liament, neither  in  Theli  nor  in  Hypothefi,  but  that  the  King  by  his 
Royal  Prerogative  may  difpenfe  with  it.  12  Rep.  14.  b.  Hill.  24 
Eliz.  Anon. 

14.  Where  a  Statute  expires^  and  is  revived,  it  feems  as  if  Non  Ob- 
ftante  to  the  expired  Statute  w^ill  not  reach  the  new  revived  one.  See 
D.  202.  b.  70.  Marg. 

SC  cited  15-  It  was  refolved  by  the  Lord  Ch.  J.  and  Lord  Chancellor  Egerton, 

;  Bulft.  91.  upon  mature  Deliberation,  and  hearing  Counfel,   that  the  King  could 

Mich.  i;_  not  difpence  with  the  Difability  upon  the  Statute  5  E.  6.  cap.  16.  o^ Btiy- 

jacmCafe  jf,^  Offices.     3  Inft.  154.  cites  12  lac.    Sir  Arthur  Ingram's  Cafe,   alias 

of  the  Kins  „  .^  „■*' ,  -rr  ,    vv  r 

V.  Zaker  &   Sir  Robert  Vernon  s  Cale. 

cited  Cro  T.  5S(5.  Mich  15  Jac.  B.  R.  in  Cafe  of  the  King  v.   the  Bifhop  of  Winchefter  &  al 

S.  C.  cited" Hob.  75    in  Cafe  of  the  filing  i).  tl)C  Blfljop  Of  ifJoriXMfl)  ;  for  the   Perfon  being  difablcd 

bv  Statute     could  not  be  enabled  by  the  King.— Serjeant  Hawkins  fays,  that  a  Perfon  difabled  by 

the'abovefaid  Statute  cannot  be  reftored  to  his  Ability  at  any   Time  during  his  Life,  by  any  Grant  or 
Difpenfation  whatfoever.     2  Hawk  Pi.  C.  169.  cap.  67.  S.  5. 

16.  J.  H.  and  N.  H,  his  Son,  having  a.  Joint-patent  of  Clerks  cf  the 
Court  of  Wards,  with  an  exprefs  Proviiion,  that  if  one  of  them  ficuld  die., 
the  other fijould  enjoy  the  whole  Non  Ohfiante  the  Statute.  J.  H.  being  dead. 
Sir  S.  L.  moved  the  King  that  he  "might  be  joined  by  Patent  to  N.  H. 
the  Survivor,  upon  Opinion  that  by  Words  of  the  Statute  32  H.  8. 
(viz.  that  there  ftould  be  two  Clerks  to  be  named  by  his  Highnefs  to 
be  Clerks  ot  the  fiid  Court.)  This  was  referred  by  his  Majelty  to  Vif- 
count  Wallingford,  Lord  Hobart,  and  Sir  James  Lea  Attorney  of  the 
Court ;  and  they  certified  the  King  (having  heard  Counfel,  and  feeii 
the  former  Grants  ever  lince  the  Ereftion  of  the  fiid  Court)  that  the 

King 


Prerogative  of  the  King.  6^ 

King  was  not  bound  to  the  Number,  but  *  might  with  a  Non  Obllante  ♦  Recaufc 
difpenfe  with  it ;  but  the  Auditor's  Place  being  judicial,  and  appointed  ihhofficels 
to  be  in  two,  cannot  be  in  lefs,  becaufethe  Sub)ccthLi,s  an  Intcrelt  in  the  »'i>iijhr,ni. 
Judicature,  which  cannot  be  committed  either  to  more  or  lefs  than  the  ■''■"_^  'Tn 
Law  oi  their  Creation  has  ellabliftied.     ITob.  214.  Hare  v.  Leifure.  1' ■  54- 

17.  The  Statute  3 /7(ff.  i.  cap.  i^.  zfbir.h  gives  Forfctrttres  for  Reciifancy 

fays,  S.  II.  1'hat  the  King  may  refiifc  the  Ptiiahy  oj  zal.    a  Mouthy    and 

take  Ikvo-third  Parts  of  his  Lands  and  Leafs  -which  Jhall  be  or  come  to  fuch 

O  [fenders,  till  he  or  they  fb  all  conform,  in  Lien  of  the  20  /.  Monthly;    and 

S.  12.  is,  'That  the  Kin^ihAl  not  itdi'c  the  faid  two  Parts  to  the  Rccu- 

iant,  or  to  any  other  lor  a  Recufant's    Ule. The  Lord  Brudnel 

was  a  Reculiint  Convicl.  The  Earl  oiW.  took  a  Leal'e  of  the  King  of 
two  Parrs  of  his  Eftate,  in  Trult  lor  the  Reciifant,  and  with  a  Non 
Obltante  of  the  Act  above  mentioned  ;  but  becaule  the  Tntjl  did  not  ap- 
pear by  any  Matter  of  Record,  the  Court  would  not  take  Notice  of  it  by 
any  Matter  JJehors  ;  but  their  Opinion  was.  That  the  King  in  this 
Cafe  could  not  difpenfe,  bccanfe  he  was  difabled  by  the  Ati  to  grant  &c. 
Hard.  110.  Palch.  165S.  in  the  Exchequer.  The  Attorney  General  v. 
Earl  of  Wellmoreland. 

1 3.  In  Debt  upon  the  Statute  12  Car.  2.  cap.  i.$.  which  enafis,   7hat  s,tsS,  C  ar- 
m  Perfon  fell  Wine  by  Retail,  unlej's  enabled  according  to  this  Statute,  under  gued  by  the 
the  Penalty  of  $  I.  for  every feveral  Offence.  lJpon*Nil  Debet  pleaded  the  Jury  Judges 
find  the  Stdtiitc  7  E.  6.  cap.  5.  That  none  fell  Wines  -without  Licence,   ac-  F' ''^^?'  -^^P- 
cording  to  thcfaid  Acl.     Then  they  find  the  Patent  of  ()  Jac.    incorporat-  and  lbid°^' 
ing  the  Vintners  of  London,  and  that  fuch  as  jhould  be  free  of  their  Company  1 1 5.  pi.  i  - ;. 
might  fell  Wine  by  Retail,  or  in  Grofs^  within  three  Miles  of  London  ^c.  in  I^'^i-  '-8. 
their  Hoiifes  or  elfeivhere,  Non  Objiante  the  [aid  Statute  7  E.  6.  or  any  other  "^^  '  5™  ^^>''* 
Statute  made  or  to  be  made.  They  likewiie  find  the  Statute  of  12  Car.  2.  25.  heTd  that  "he 
and  ^Provifo therein  not  to  prejudice  theVintner' s Company, but  that  they  may  Patent  was 


iife  and  enjoy  fuch  Liberties  as  they  have  heretofore  laivfully  tifed.    it  was  ar-  Roo'^ .'"  "s 
gued.  That  the  Patent  was  void  in  its  Creation,   ilt;    In  refpeft  of  the  9"'";"j?" . 
Pcrfons  to  whom  it  was  made,  ic.  a  f  Corporation,  which  never  was  ,"-    pi',,-g 
fubjeft  to  an  Uk,  and  therefore  not  capable  of  fuch  a  Trutt  as  to  make  argued  by' 
whom  they  pi eale  Free  of  their  Company,  or  exempt  them  from  the '^''"^.  ^^° 
Law,  and  in  Efteft  to  delegate  to  them  a  Power  to  exempt  whom  thev  9^'"^  J"*- 
pleale  from  the  Law,  and  thereby  delegate  an  Exemption  to  every  one  s.'^C  aro-ued 
who  jhould  be  Free  of  their  Company.     2dly.  Becaufe  it  was  for  ever,  and  by  V'aughun 
fo  not  good  in  Point  of  Time.     sdly.  That  it  was  void,  in  Reipeft  of  ^^-  J 
the  Places  extending  to  great  Part  of  the  Realm,  whereas  Difpenfcitio  eji  ^^"Sh   5  5'=- 
prcvida  Relaxatio  funs  pro  Nece'Jttate  penfata.     Thurland,    VVindham,  uhe'^'^" 


ere  in 


Ellis,  and  Turner  Ch.  Baron  held,  that  the  Patent  was  never  good  i  Matters 
and  grounded  themfelves  much  upon  the  Reafons  before  alleg'd  :  But  whiJimay 
the  8  others  held  it  good  in  its  Creation.  Lev.  217.  Trin.  10  Car  "'■"'^yiw 
Thomas  v.  Sorrel.  '  "^^^ 

Prerogative,  are  very  minutely  treated  of. Hard.  443.  to  41  r.  fcems  to  be  S.  C.  bv  Name^of 

Thtinias  V.  Waters. S.  P.  Ibid.  464   Tiioma.s  v.  iioys. *  Turner  Ch.  B.  took  Exceptioii  to  thi 

Pica  ;  for  the  Defendant  cu^ht  to  have  pje.7ried  the  Special  M.xtter  ;  becaule  when  an  Information  or  Adtiori 
is  brought  upon  any  Statute,  if  the  Defendant  be  difcharged  by  any  Provifo  therein,  lie  may  o-ive  it  in 
Evidence  ;  but  if  i:  be  any  Foreign  Matter,  even  tho"  it  be  a  Licence  purfuant  to  a  Proviio  of'^that  ^St  1- 
tute,  he  niuft  plead  it.  And  Hale  laid,  that  a  Licence  purfuant  to  a  Proviio,  is  all  one  as  a  Provifo 
and  ib  might  be  given  in  Eviderice.  Freem.  Rep.  119.  Mich  16:;.  STIjOmaS  I).  STalmarfl',  but 
feem.s  to  be  S.  C.  And  fitys  that  this  Exception  was  not  taken  Notice  of  by  Counfel  or  Judges  till  Turnei- 
argued,  a.nd  who  was  the  Sth  Judge  that  argued. 

j  Many  Precedents  of  Licences  to  Corpoiations,  Non  Obftante  Statutes,  are  mentioned  Vui!"'i    ■•  -•> 
10254.  ^'■'''' 

19.  But  it  was  agreed.  That  this  Non  Objiante  in  the  Patent  of  King 
James  could  not  difpeuce  with  the  Statute  of  Car.  2.  ma^e  after,  noi- 
withftanding  the  Words  (JJr  any  other  Statute  made  or  to  be  made.') 
Ibid.  218. 

20.  And  it  was  agreed  by  all  (except  Thurland)  That  the  Prmifo  in  > 
the  Statute  of  12  Car.  2.  exempts  the  VinO/crs  cl  London  out  of  this  Sta- 
tute, 


64.  Prerogative  of  the  King. 


turc,  bccaiiie  it  was  11  Privilege  lawfully  iifed  by  them  before  the  Sta- 
tute i  and  thereupon  the  Record  was  remitted  out  oi  the  Exchequer 
into  B.  R.  and  there,  upon  Motion  of  Levins,  Judgment  was  entered 
accordingly.     Ibid.  221. 

21.  I  IV.&  Af.  Stat.  2.  Cap.  2.  S.i.  Ena£ls  that  no  Difpeiifation  IjNon 
Obfiatitc  oj  a>!y  Statute  jhall  ie  allo'wed^  except  a  Difpenfatton  be  allowed  in 
fiich  Statute.,  and  except  infuch  Cafes  as  pall  be  fpecially  provided  far  durinr 
this  Sc[/ton  oj  Parlianuiit. 

22.  Tlie  Statute  of  5  Eliz.  enables  Mariners  to  take  apprentices^  and 
cnaBs  that  fuch  Apprentices  fhall  be  bound  by  their  Covenants^  as  Apprentices 
ill  London  are  by  their  Cuftom  thcre^  the  Indentures  being  iirrolled  in  the  next 
Vill  Corporate,  it  was  refcjlvod,  That  the  King  cannot  alter  the  Place  of 
the  Inrolment,  but  they  Ihall  be  inroll'd  according  to  the  Statute,  other- 
wife  the  Covenants  Ihall  be  at  Common  Law,  and  the  Apprentices  not 
bound  by  them.     3  Lev.  389.  Paich.  6  W.  &  M.  C.  B.  Poullon  v 


(Y.  a.  2)    Non  Obftante.    Good.    In  what  Cafes  the  King 

may  difpenle. 

fee.  Preroga-  i.  rT~iH  E  King  granted  the  Shrievalty  of  the  County  of  N.  to  the  Earl 
^l^'^' P'p'_2_;  \^  op  N.  for  Term  of  Lit e.,  ':»^v/-/?  <7//  Pj-o/i'i'j  thereunto  appertaining, 
s"p  Th(7~  '>'<^>'(ii'''i^^g  100 1,  per  Annum,  abique  aliquo  [alio]  reddendo  :  And  it  nas 
there  are  agreed,  that  it  may  be  granted  tor  Term  of  Lite,  or  in  Fee  ^  and  there 
Statutes  Avas  a  Claufe  of  Non  OLJtante  to  difpence  ivith  the  Statutes  of  zS  E.  3.  cap. 
vhich  or-  ^  ^;/r/43  E.  3.  cap.  9.  which  will,  that  none  ihall  be  S^l:erilf  above  a 
fuch  Patents  Year.     Br.  Patents,  pi.  109.  cites  2  H.  7.  6. 

ihiW  be  2.  And  per  Ratclitf,  The  King  by  his  Prerogative  may  by  the  Claufe 

void,  yet  of  Non  Obilance  diipence  with  the  Certainty  and  Value  of  the  Land  grant- 
Y;"'"'^  ,-  ed  by  Patent,  and  oi  the  Shipping  of  Wool,  or  of  Charters  of  Murder  being 
Non  "^Ob-     ^''^'^^  for  not  linding  Sureties.     Br.  Patents,  pi.  109.  cites  2  H.  7.6. 

ftante  they 

are  good,  and  to  be  allowed.  And  tho'  the  6'.'i«ri'ft'//<r)',  tJ-at  fuch  Patents  pall  le\vo}d,  altho"  they  h.i'vi 
a  CUufe  of  Not!  Olifi.uiti',  yet  a  Patent  of  I'uch  Tilings,  with  Words  of  Non  Obllante  any  Claufe  dcro- 
gatin''-  from  the  jSon  Obfiantc,  will  make  the  Patent  good  :  The  Reafon  of  the  Law  is,  that  the  Kint' 
by  his  Royalty  is  trufted  with  the  Government,  Pardons  and  publick  Bufineis  ;  particular  C'afes  may 
happen  which  defcrve  Remiffion,  upon  Confideration  of  Circumllances.  By  all  the  Judges  in  the  Ex- 
chequer Chamber.     Jcnk.  175.  pi.  45.  cites  S.C. 

Serjeant  Hawkins  iays.  Where  a  Statute  is  exprefs,  that  the  King's  Charter  againft  the  Purport  of  it, 
■whether  with  or  without  a  Claufe  of  Non  Obftante,  fcall  be  void,  it  is  faid  by  Sir  Edward  Coke,  that 
ho  Claufe  ot  Kon  Obftante  can  difpence  with  it,  unicfs  to  tend  to  rcftrain  fome  Prerogative,  folely  and 
infeparably  incident  to  the  Perfon  of  the  King,  as  the  Right  of  Pardoning,  or  of  Commanding  the  Ser- 
vice of  the  Subjedt  for  the  Publick  Wcal,^  which  being,  as  he  feems  to  argue,  founded  on  the  Law  of 
Nature,  are  fo  far  infeparable  from  the  King,  that  by  a  Claule  of  Non  (Jblhmte  he  may  difpenfc  with 
.any  Statute  whatfoever,  which  tends  to  deprive  him  of  them.  And  on  this  Ground  tlie  Refolution  of 
the  Judges  in  the  Year- Book  of  H.  7.  is  faid  to  be  maintainable,  whereby  it  was  adjudged  without  any 
Dilliculty,  That  where  the  Statute  of  2;  H.  6.  cap.  S.  ex-prefsly  enacts,  That  Patents  to  Sheriff,-  to  con- 
tinue longer  than  a  Year,  Ihall  be  void,  and  the  Party  difibled  to  bear  the  ( iffice  of  Sheriff,  notwith- 
ftandingany  Claufe  of  Non  Obftante,  yet  the  King  by  the  Claule  of  Non  Obftante,  might  m.skea  good 
Patent  of  fuch  Office  for  Life,  which  is  in  Elfed:  to  fay,  that  let  there  be  never  ih  good  Realbns  fort!ie 
making  a  new  I  aw  for  the  Rcftraint  of  the  Prerogative  in  any  Particular  relafing  to  the  Service  of 
the  Su'bjeft;  yet  it  is  not  in  the  Power  of  the  Legifl.iture  to  make  fuch  a  Law  ;  and  vet  no  one  will  de- 
ny, that  wherever  the  Law  of  Nature  leaves  a  Matter  indifferent,  there  the  Law  of  Man  oui'ht  to  pre- 
vail :  Neither  is  there  any  Pretence  to  fay,  that  the  King  has  a  Right  by  the  Law  of  N.uure  to  appoint 
Sheriffs,  fince  it  is  plain  that  before  the  Sr.atute  of  9  E.  2.  the  Freeholders  chofe  them,  unlefs  they  had 
a  Fee  in  their  Office.  And  what  Reafon  can  there  be,  that  the  Statute  Law,  which  gives  the  Crov/n 
the  Power  of  mal'.ing  Sheriffs,  may  not  alfo  qualify  that  Power,  as  fliall  be  thought  convenient  ?    But  it 


is  obfervable,  that  the  Pvclblution  above  mentioned  does  not  go  upon  any  particular  Reafon,  w^iich  may 
diftinguifh  the  Cafe  of  a  Sheriff  from  any  other  Gale,  but  only  on  the  King's  Power  by  Non  Obftante  to 


fey  nothing  concerning  the  Claufe  of  Non  Obftante  m.iy  be  difpciifcd  widi   by  it,   therefore  a  Statute 

whick 


Prerogative  of  the  King.  65 

OTpreGly  provides  againft  it,   may  alfo  as  well  bt;  difpenfed  with  by  it.     z  Hawk.  PLC   590.  391.  cap 
5;.  S.29. 

3.  The  King  cannot  difpenfe  with  any  to  do  a  Nufance  in  the  High- 
•way;  and  if  he  does,  llich  Difpenfation  is  void.  Dav.  Kep.  75.  a.  Paldi. 
9  Jac.  C.  B.  in  the  Cafe  of  Commcnda,  cites  1 1  H.  7.   12. 

4.  Tho'  the  King  may  diipenfe  witii  a  Statute^  which  prohibits  an  in-  Where  a 
different  'Thing  to  U  donc^  yet  he  cannot  change  the  Common  Law  by  his  ^^^^'^'^  'f 
Patent.     V)x\.  Rep.  75.  b.  cites  37  H.  8.  Br.  Patents  100.  6  H.  7.  4.       in  Eaib  ot 

the  King, 
and  not  to  abridge  hi<  Prerogative,  it  was  adjudged  that  the  King  may  difpenfe  with  it.     2  Mod.  zdj 

Trin.  29  Car.  2.  in  the  Exclici]uer,  Arris  v.  Stukcly. But  the  King  cannot  dilpenfe  witii  the  Com~ 

mon  La'w  with  a  Kon  Obftantc.     Dav.  Rep.  75.  b.  Pallh.  9  Jac.  C.  iJ.   in  the  Cale  of  Com:r.cnda ; 
cites  4  Coke  35.  Boioin's  Cafe. 

5.  The  Office  of  the  Alnager  was  by  feveral  Statutes  prohibited  to  be  S  C.  cited 
granted  ivithoiit  a  Bill  fea/ed  by  the  Lord  Trcafiircr,  and   lent  by  him  to  ^'^^,  '4<'- 
the  Court  of  Chancery,  as  had  been  accuitomed,  or  otlierwife  it  Ihould  f  ic'^p^rHo- 
be  void.     Queen  Mary  granted  the  faid  Office  de  Gratia  fpeciali,  certa  bart  Ch. ). 
Scientia,  &  mero  Motu,  to  one  ^Vard  for  21  Years,  without  any  fuch  i;'  Cafe  of 
Warrant.     Adjudged  by  all  the  Jurtices  de  Banco,   that  the  Grant  was  ^°''^  ^"'^ 
void,  tho'  a  Claule  of  Non  Obltante  to  any  Statute  is  contained  there-  th  °B^fliop 
in;   and  that  by  Reafon  ot  its  not  being  Ihcwn  to  the  Court  that  fuch  of  Coventry 
Claule  was  in  the  Grant.     Dver  303.    pi.  48.   Mich.  13  &   14  Eliz.  and  Litch- 
Ward'sCafe.  '  _  ^-^'^■ 

6.  When  the  \\^ordsof  a  Grant  are  not  fnfficient  ex  •it  'Termini  to  pafs  S.  C.  Godb. 
the  Thing  granted^  but  the  Grant  is  utterly  void,  there  any  Xon  ob- ?.v.  ^^'-'■' -7 
llante  cannot  make  the  Grant  good  ;  but  in  Cafe  oi  Grant  of  Land  which  ^    Name  of 
is  in  Lcafe  for  Life,  or  for  Years,  there,  by  the  Grant  of  the  Land  the  Futter  and 
Words  are  ex   Vi  termini  ftifficient  to  make  the  Rc-jcrfton  pafs ;  but  the  f)oromc"» 
Law  requires  that  the  King  be  not  deceived  in  the  Thing  granted,  and  ^'<=- 
therefore  this  is  fupplied  by  a  Non  ObAante.     4  Rep.  3^.  b.   36.  a. 

Mich.  26  &  27  Elii.  B.  R.  in  Bozoun's  Cafe. 

7.  When  the  King  by  the  Common  Law  cannot  in  any  Manner  make  a  SC.  citcJ 
Grant,  there  a  Non  Obltante  of  the  Common  Law  vvill  not, againlt  thfe  ^  ^t^^hS 
Reafon  of  the  Common  Law,  maice  the  Grant  good.  But  when  he  may  j,^.  in 
lawfully  by  the  Common  Law  make  the  Grant,  but  the  Common  Law  Cafe  of 
requires,   that  he  be  fo  inftruclcd  that  he  be  not  deceived,  there  a  Non  Needier  v. 
Obilante  fupplying  it  Hands  with  the  Reaibn  of  the  Common  Law,  and  t'l.*:  S^.^-o?  . 

fliall  make  the  Grant  good.     Refolved  4  Rep.    35.  b.   Mich.  26  <Sc  27  ^_ s"c"' 

Eliz.  B.  R.  Boioun's  Cafe.  Godb.  5,-.' 

Jilich.  27 
Eliz.  by  Xamc  of  Fu'iter  and  Borome's  Cifc. 


8.  If  the  king  grants  a  ProteBion  in  ^nare  Lnpcdit,  or  Affife,  with  S  C.  Godb. 
Kon  Obilante  ol  any  Law  to  the  contrary,  this  Grant  is  \oid  ^  lor  by  '^.,!^-^j'^n,, 
the  Common  Law  Prote£tion  does  not  lie  in  any  of  tliofe  Cafes  for  the  by  Name  of* 


Lofs  which  may  accrue  to  the  Piaihtift  by  fach  great  jDelay  ■■,  and  Futrer  and 
therefore  the  Non  Obilante  cannot  avail,  when  by  the  Comnion  Law  B'lromj's 
the  King  cannot  grant  it.     Rcfohed4Rep.  35.  b.  Mich.  26  &  27  ^■*'^' 
Eliz.   B.  R.  in  Bozoun's  Cafe. 

9.  A.  pleaded  his  Pardon  for  the  Murder  of  B.  wherein   the  King  S  P.  3  MoA 
pardoned  Feloniam   &  felon icam  Interfeciionem    Kon    Obltante  the    13  37-.  ^-^ 
Rich.  2.  before  which  Statute  Murder  was  pardonable  by  the  Name  of  q,'!;  ,  ^  j^^ 
Felony,    which  was  adjudged  good  ;  but  if  it  had  been  without  a  Non  s^lji-  j$.\ni 
Obilante,  it  would  have  been  void,  bccaufe  by  that  Statute  the  Pardon  t).  Ctomy 
of  Murder  is  prohibited.     Mo.  752.    pi.  1033.    Hill,   i  Jac.    Lucas's  f"^.  ®f 

Gale.  U,eh  a  Par- 

don was 
held  good  by  the  whole  Court ;   and  Jeffries  Ch.  J.  find,   that  he  had  propofcd  this  C.ile  to  all    tlse 
Judges  of  E-igland,  and  they  were  all'of  the  fame  Opinion  ;  and  that  he  r^inembei'd  "jDu'OUp's  Cafe, 
where  a  Pardon  in  general  Words  was  allowed 

R  Serje:;ni: 


66  Prerogative  of  the  King. 

.i>cricant  Hawkins  fays.  It  io  fully  appears  from  the  cx-prcfi.  Words  of  15  R.  2.  That  tiic  Kinj^'o  I'ar- 
don  0',  Jliirder,  Rape  or  ^reafcri  cannot  be  ffood  ivithont  a  CLitife  i>f  hloji  Ohflniite-,  that  he  lays  he  docs  nor 
know  tliat  it  has  ever  been  difputed.  But  it  has  been  often  fijrmerly  rdjUdgcd,  That  a  Mtirder  might 
be  well  pardoned  tinder  the  general  Dcfcription  of  a  Felonious  Killing,  if  the  Charter  had  the  Ciaule 
of  Non  Obltante  ot  this  Statute  ;  which  Conftruiition  fcems  in  a  ;^reat  ISlealLirc  to  evacuate  fo  excel- 
lent a  Law,  by  bar^-ly  chan;(i'ig  the  Form  of  the  Charter  ;  but  it  fcems  difficult  to  give  a  good  Rcafon 
why  this  Statute  fl-.culd  lb  cafily  be  evaded,  which  was  made  fur  the  Prevention  of  fnch  great  Mifchiefs, 
iiiid  no  way  tend  to  abolifh  the  King's  Prerogative,  but  only  to  put  fuch  a  Relh-aint  upon  the  Abufe  of 
it,  that  every  one  mult  own  it  to  be  reafonable.  But  if  fuch  (Opinions  were  founded  upon  tl-.e  King's 
Power  of  dilpenfing  with  Statutes,  they  leem  to  have  been  of  little  Force  fmce  the  Statute  of  I  //''.  ^ 
M.  Sejf.  2.  r.Tp.  1.  by  which  it  is  declared  and  ctiadtcd,  'fl .n  jrcm  and ajter  that  Sejfion  y.o  Diftevfathn  hy 
Kon  Objtaine  ofy  or  to  any  Statute,  or  any  Part  thereof,  jhal!  be  aJJoaed  Scc.  2  Hawk.  PI.  C  3S6.  cap. 
57.  S.i;. 

Vaughan  lo.  The  King  may  difpenfe  with  Malum  Prohibitum  before  the  Of- 

Ch.  ).  ia:d,    fence  is  commicced,  and  pardon  it  alter  it  is  committed  i  but  he  cannot 

Tv^  l^  d.i'ixnk 'ivith  Malum  i/i  fi  bcjore  it  is  cjunnittcd^  but  he  mav  pardon  it 
iJiinnction       ,.^  ,         „        hujj  rc-ijii  iv, 

between.//^- afterwards.     By  all  the  Judges  ot  h.ngiand.    Jenk.  307.  pi.  83.    cites 

Itim  Prohihi-  Hill.  2  Jac.  7  Co.  36.  b.  &c.  The  Cafe  ot  Difpenlatious. 

turn  and  >/.f- 

lum  in  ft,  was  of  litt'e  Ufe,  if  not  rightly  underftood  ;  for  every  Aftion  in  it  felf  isgood,  and  the  EviJ 
of  it  is,  that  it  is  prohibited  by  fome  Law  ;  for  Sin  is  the  Tran'greiiion  of  a  Law.  liut  he  faid,  tit. 
That  wnat  we  call  Malum  in  fe,  iscither  that  which  the  very  Term  implies  to  be  Uiiiawful,  as  Murdep 
is  Unlawful  Killing,  Adultery  is  Unlawful  Copulation;  and  thele  can  by  uo  Law  be  m'adc  Lawful: 
and  much  Icis  can  the  King  difpenfe  w  ith  them  ;  for  fuch  Laws  would  certainly  be  void,  bi-cau'e  there 
is  a  Cont  rail  i  lit  ion  in  the  very  Term  ;  for  it  is  impoffible  that  Murder,  which  is  the  Unlawful  Killing 
of  Man,  fliould  be  Lawful,  the'  a  Law  might  be  made  that  it  fhould  be  Lawful  for  fuch  and  fucii 
C.iu'csto  talccaway  the  Life  of  a  Man,  which  to  do,  as  the  Law  llands  now,  would  be  Murder.  And 
a  Law  might  be  made,  that  flic  that  is  tlie  Wife  of  A.  fhould  be  the  Wife  of  B.  and  then  it  would  be 
I'o  Adultery  for  B.  to  lie  with  her.  2d.  Another  Sort  of  J/<?/,t /wyi' are  fuch  as  the  Law  of  the  Land 
doth  admit  to  be  prohibited  Jure  Divino;  for  thefe  can,  by  no  Human  Law,  be  difpenfed  withal  ;  for 
what'bcver  may  be  made  Lawful  by  any  Human  Law,  is  not  Malum  in  fe.  The  true  Difference  where 
the  King  may  difpenfe,  and  where  he  may  not,  is  not  when  it  is  Malum  in  fe,  and  when  it  it  Malum 
Prohibitum;  for  there  are  fome  Mala  Prohihita  by  Statute,  that  the  King  may  difpenfe  with,  and  orhers 
that  he  cannot.     Freem.  Rep.  i;;.  15S.   Hill.  1679.  in  C.  B.  Thomas  v.  Sorrell. 

Neither  doth  it  make  any  Difference,  when  the  Law  difpenfed  with  is  Capital,  or  when  it  is  le's  Pe- 
nal ;  for  there  are  fome  Capital  Laws  that  he  may  difpenfe  with,  as  5  Inft.  74.  Freem.  Rep.  15!^.  Tho- 
mas V.  SorrelL 

I  r.  A  Laiv  which  prohibits  a  Turt  and  Injury  to  a  third  Perfon,   cannot 
'•'  be  difpenfed  with.     Dav.  Rep.  77.  a.  Pafch.  9  Jac.  C.  B.  in  Ireland,  in 

the  Caie  of  Commenda. 

12.  Upon  a  Purview  in  the  Statute  of  Weftm.  2.  cap.  10.  there  was 
great  Queltion  whether  the  King  might  difpenfe  with  that  Law,  and 
give  a]  art  her  .Day  than  is  thereby  prelcribed  j  and  in  the  End  it  was 
refolved  that  he  might  for  the  Advancement  and  Furtherance  of  Jiiftice. 
2lnlh  377. 
Butfee  I  Vv'.       13.  The  Statutes  of  2  E.  3.  10  E  5.   14  E.  3.   13  R.  2.  ordain  that 
&  M  SefT.  2.  the   King's    Pardon    of   Notorious  Felonies,    Rapes ^   Murders,    ihould 
cap.  2.  j)oj  be  granted  or  allowed,  altho'  it  hath  the  Words  of  Non  Obltante 

any  Statute  i  yet  Patents  of  Pardons  of  fuch  Olfences  were  allowed 
with  a  Non  Obltante  any  Statute,  and  notwithltanding  any  Cauie  to 
defeat  the  Non  Obltante.  Mr.  Jenkins  fxys,  In  his  Time  no  fuch  Par- 
don waspafs'd  and  allowed  (that  he  ever  heard  of)  without  the  'Judges 
Certificate,  before  Juch  Pardon  was  granted.  If  any  fuch  Pardon  be  plead- 
ed before  ;my  Judge,  he  ought  not  to  be  'Tain  fraCfi  abjctfique  Amrai,  to 
allow  it  immediately  ;  if  he  does  fo,  he  is  not  worthy  to  be  a  Judge ;  he 
ought  to  reprieve  the  Prifoner,  and  lignify  the  Circumftance  of  the  Of- 
fence to  his  Majelty :  And  upon  this  Kight  Ihall  be  done  w'ith  Regard 
to  the  Publick  Good.     Jenk.  308.  pi.  84. 

14.  A  Non  Obltante  in  the  Patent  helps  the  Non-recital  of  Lcafes  of 
.  Record.     Jenk.  503.  pi.  77.  Baron  Blague's  Cafe. 

ij:.  The  King  cannot  difpenfe  with  the  Laws  of  .'I'/('////f;/^«T^,  For- 
cible Entries,  carrying  Dtjirefjes  out  of  the  Hundred  &c.  the   Reafon  i-s 
not  becaufe  they  are  Mala  infc,  but  becaufe  the  Party  that  is  grieved 
hath  by  the  Law  an  Aftion  given  him  ;  for  it  is  not  Malum  m  fe  t© 
:  maintain  a  lawlul  Suit,  nor  to  enter  forcibly  where  a  Man  hurh  Right 

dec. 


Prcrogati\e  of  the  King.  67 


Sec.     Per  Vanghan  Ch.  J.    Freem.  Rep.   138.  139.  Hill.  1673,  C.  B. 
Thomas  v.  Sorcell. 

16.  There  are  ibnie  Cafes  wherein  the  King  cannot  difpenfe.  ift, 
Ald/a  in  /i-,  iuch  Things  which  by  the  Law  of  God  or  Nature  are  evil, 
antecedently  to  any  Human  Law;  nay,  the  King  cannot  difpence 
with  a  Law  made  lor  the  Punifliment  ot  any  fuch  Olleiice,  as  a  Rape  is 
Felony  by  the  Law,  the  King's  Diipenlittion  w  ill  not  make  it  none, 

and  that  anfwers  the  Gales  ot  >  Simony.     2dly.  V\  here  tht  Subject  hath  *^^-'^-  By 
a'particiiLri-  l/itcrefi  or  Damage;    and  therelore  the  King  cannot  dif- f^i""-^,'''*" 
penfe  with  a  Nulance,  and  the  Statute  of  Ufury.     3.   Where  there  is  a  Precm.  Rep 
Prccedait Difabihty  ;and  therefore  w  here  a  Man  *  bu\s  any  Office  with-  1^9    in  Caii 
in  the  Statute  of  J£.  6.  the  King's  Dilpenfation  will  not  avail  him,  be-  ^^f  Thomas 
caufe  by  the  Contraft  a  Difability  is  created  in  him.     Per  Herbert  Ch.  ^  ^""«^- 
J.  But  if  he  got  the  Di;peniation  before,  and  contracl  aiterwards,  it 
kerned  to  him  that  it  was  good.     And  he  faid  he  knew  no  Ca!e  that  did 
rot  come  under  one  of  thefe  Heads,  but  that  the  King  could  dilpenfe 
with  it.     Freem.  Rep.  493.  Pafch.  1682.  in  Sir  Edward  Hale's  Cale. 

17.  H.  8.  gr:.nred  the  Manor  ot  S.  with  the  Appurtenances,  and  then 
followed  thele  W^ords,  \\z.  All  which  are  of  fuch  a  yearly  Value,  as  is 
expre/yd  in  fuch  a  Particular,  with  a  Non  Ohflantc  of  any  Mifrecttal  of  the 
true  Value,  or  that  they  ivere  of  greater  Value.  The  Value  was  not  truly 
expreis'd  in  the  Particular  ;  but  Hale  Ch.  B,  held  the  Grant  good;  he 
ftid  that  the  Reafon  why  a  Miilake  in  the  Conlideration,  or  m  the 
King's  Title,  or  the  Non-recital  of  an  Eftate  or  Leafe  in  Beina;,  ihall 
vitiate  the  King's  Patent  is,  becaule  by  his  Prerogative  he  ought  to  be 
truly  inlormed  of  his  Cafe  i  but  it  is  orherwiie  in  the  Cafe  ot  a  com- 
mon Perfon,  whofe  Grant  is  to  be  taken  molt  Itrongly  againil  himfelf, 
and  that  here  the  Non  Obftante  aids  thofe  Defects;  and  it  is  the  proper 
Office  of  a  Non  Obrtante  to  do  {o,  as  appears  in  4  Rep.  QSof^Uil's 
Cale  ;  and  that  without  Doubt,  if  there  had  been  Ibch  a  Non  Obilunte 
in  the  Patent  in  lSrti)Ut  LegiltC's  Cafe  after  the  Claule,  Qu.t  quidem 
omnia  funt  concelata,  Non  Obllante  that  they  are  not  concealed,  all 
would  have  pafs'd  which  was  comprized  in  the  Patent;  to  which  all 
the  Cotirt  agreed.  Hard.  231.  Trin.  14  Car.  2.  in  the  Exchequer, 
The  Attorney  General  v.  Hungate. 

1 8.  li^R.  2.  enacted.  That  no  Cufcv7cr  or  Comptrclkr  pould  have  any 
Office  in  the  Cuftoms  for  Lite,  luit  only  during  the  King's  Pkafure.    \w 
12  Car.  2.  the  YJ\t\z,  granted  the  Office  of  Comptroller  o'i  the  Cuftoms 
in  the  Port  of  Exeter  to  R.  S.  and  T.  S.  Durante  ber.eplacito.   R.  S. 
died.     Two  Years  after  the  Death  of  R.  S.   the  King  granted  the  Of- 
iice  to  A.   [for  Lite,    as  itfeems,  the'  it  does  not  appear  in  the  Cafej 
-ivith  a  general  Non  Objfantc  of  all  Statutes,  but  without  any  Mention  of 
this  Stature  in   particular;  and  it  w.is  inlilled  that  this  Statute  being 
made  tor  the  Publick  Good,  the  King  c.mnot  by  any  Non  Obllante 
difpenfe  with  it.     But  atterwards  the  Court  gave   Judgment  lor  the 
PlaintiiT,  and  held  that  the  King  might  difpenfe  with  this  Statute; 
lor  the  Subjecf  had  no  Intereft,  nor  was  he  any  ways  concertud  in  the  Prohi- 
bition;  zh&t  it  was  made  only  for  the  Eafe  oi  the  King,  and  not  to 
abridge  his  Prerogative;  and  that  the  General  Clauie  of  Non  Obllante 
aliquo  alio  Statuto  was  fufficicnt.     2  Mod.  260.  263.    Trin.  29  Car.  2. 
in  the  Exchequer.  Arris  v.  Stukely. 

19.  And  by  the  like  Realbn  he  might  difpence  with  the  Statute  of 
4  H.  4.  24.  That  a  Manjhall  hold  the  Office  of  Alnager  withait  a  Bill  from 
the  Treafircr.     Ibid. 

20.  And  with  the  Statute  of  31  H.  6.  5.  That  no  Cujiomer  or  Comptrol- 
ler jhall  have  any  Ejfate  certain  in  his  Office.  Per  Cur.  for  the  Reafons 
above.     Ibid,  in  the  Cafe  of  Arris  v.  Stukely 

■  21.  In  many  Cafes  the  Difpenlation  of  the  King  by  a  Non  Obllante  Is 
good;  As  where  a  Statute  prefcribes  the  Form  ot  the  King's  Grant, 
where  it  doth  not  drreclly  prohibit  a  Thiu'j,  but  only   under  Pain  of  a 

For. 


68  Prerogative  of  the  King. 


Forfeiture  ;  but  if  it  be  drrcR  &  pro  Bono  Ptdlico,  there  a  Non  Obftantc 
is,  not  good  ;  he  can't  difpence  with  the  Statute  of  31  Eliz.  againft  Si- 
mony ;  tor  the  Party  being  difabled  by  an  Act  of  Parliament,  can't  be 
enabled  by  a  Non  Obftanre.  He  can't  difpence  with  the  Statute  of 
Leafcs  of  Ecclelialtical  Perfons,  nor  with  the  Jurifdiftion  of  the  Ad- 
miralty encroaching  on  the  Common  Law;  for  the  t'oioidatiott  oi  2. 
Non  Obltantc  is  in  the  King's  Prerogative,  and  is  current  in  his  Grants  i 
but  in  thofe  Statutes  the  Subjeft  has  an  Interelt.  Arg.  2  Mod.  261. 
Trin.  29  Car.  2.  in  Exchequer,  in  Cafe  of  Arris  v.  Stukely. 


(Z.  a.)    OfBcers  of  the  King.    What  Things  they  may  do 

Ex  Officio. 

see(F  b)    i>XT£D  Officer  toljiclj  tijc  l^mn;  Iw^,  nor  all  togctljcr,  nwp  €t 

pi.  I.  &  9-  Y_\    OSiClO  difpofe  of  the  King's  Trcafure,  tho'  It  UC  for  the  Honour 

and  ^(G.b.)    ^^j.  p^^j-^  ^^  jj^^  j^jj^g  himfelf     Co*  1 1  ♦  Count  Devon  91.}), 

They  cmnoiv;ithout  the  King's  c-zvii  IFarrant.     11  Rep.  9;.  Ear]  of  Deyonfliire's  Cafe. 


(A.  b.)     Seals.     The  ^;;^/^/'///;;  of  the  Seals. 
!♦  ]\  /fS'CI).  14  Jac*  'B*  K*  upon  CljiBcncc  at  tijc  OSar  in  a  Cafe 

iVA  bCtlUCCn  %VC  Care-:v  Rcyncll  cuidWhitcmorc,  UlfjOT  IlTllC  U)a0, 

l^ijctljct  tijc^bbot  of  llDcftniinacr,  before  tljc  DiOblution,  fjclo  plea 
of  all  aaions  pcrfonal  unticc4osi.  (luOic!)  Court,  after  tfjc  Dififa^ 
Ititien  ioa0  ijranteu  to  tlje  Dean  anu  Cljaptei*  of  iBcffnunfter)  tljcre 

lDa0  fljeiun  \\\  CillOenCe  an  Inipeximus  by  R.  2.  of  the  Patent  oi  King 

Edward  the  Conteiibr,  bp  tulj(cl)  Ije  grantet!  to  tlje  Slbliot  of  i©eft- 

minrter  Socam  &  Sakam  (hoc  ell,  Conufance  of  Pleas)  anU  at  tlje  fame 
^inie  a  Patent  of  King  William  the  Conqueror  was  Ihewn,  Ann.  lo. 
of  his  Reign,  well  wrote,  and  fealed  with  a  fair  Seal  of  Wax,  which 

had  an  infcription ;  anti  upon  t\)z  One  Part  Of  tijc  €)eal  fg  tlje  Simap 
of  a  *  C^an  Ijauinn;  an  Car  of  Corn  in  one  dauU,  anQ  a  Crofsi  in 
tlje  otljei-  Dann  ■,  aim  tipon  tlje  otljer  part  of  itlje  ®eal  ig  tlje  Juiap 
of  a  Ci9an  rming  upon  a  Oorfc ;  auD  bp  tljis  li5atent  be  connruis  tlje 
prtbileixe0,Braiitcti  by  tlje  fails  patent  of  CtJUiarti  oe  eoca  $  ^al^a; 
ano  tijofe  prilsUege^  uiere  contirmeD  bv  Diljerfe  popes,  ass  laass 
ttrittcn  upon  tlje  oaacU  of  tbis  patent,  fciiicet,  'Bp  Innocent  tljc  20» 
bp  Cuffeniu0  tljc  35*  bp  anrtan,  aierantser  anti  Clement.  J]3ota 
bp  tbofe  patents  tlje  antiquitP  of  tbc  laui  of  patents  U)(tO  @>eai0, 

Mr.  Floyer  of  Devon  ija0  a  ^taUt  Of  laUtl  bp  ElUttS  Catl  Of  "Dt- 

ijon  unoec  ijis  %zaX  of  tl0ar  fair  ann  lacer?,  in  ^tme  of  \mt^ 
€)tepljen,  anti  a  Confirmation  of  it  bp  anotljer  of  tlje  Catis,  m 
Cimc  of  atnn;  JMu 

2.  JDlOe  ^pectl.  415*  418*  b*  (aPgf,  tijat  niXUiam  the  Conqueror 

ufcts  to  feal  Ijis  Cbartergi,  luljiclj  luas  circunifcriben  of  one  part, 

tljat  be  \Ua0  Normannorum  Patronum,  auD  Of  tljC  OtljCt  l^art,  ttjflt  IjC 
fuit  Rex  Anglia?. 

3>  UBiUiam  the  Conqueror  nirautcti  to  tlje  Citp  of  loiitian  tbeit 

ancient  Liberties,  bp  a  CljartCt  fCalCD  with  green  W  ax.  ^pecC* 
424»  b* 

4*  ^nti  anotI)cr  Cbartec  of  Ijisi  i0  tljere  citeti,  the  \Vas  whereof 

was  bitten  with  his  Tooth  in  Token  of  Sooth. 

5*  The  Saxons  uicte  loout  to  fcal  iuitij  ixutlUctJ  CroITcs,  aiit!  fucS 
lil^e  99arhsi.   epcc5>  424* 

6.  R.  I 


Prerogative  of  the  King.  69 

6,  R.  I.  fcalcQ  lj!0  CfjiUtcrs'  Uittlj  a  g)cai  of  3rni;j,  antJ  ijc  vras  the 

firlt  who  lealcd  with  a  Seal  oi'Ari.is.     ^pcCll«479, 

7*  R»  I*  upon  ijtS)  Ectum  from  Jmtfalem  djantyctJ  Iji,5  g^cal  J  foe 

lUljCrC  before  it  tunjj  2  l.ions  Rampant  Combating,  now  he  changed  in 
into  three  Lions  Pailant.      g»pcCD.  479. 

S»  Cijcrc  10  ni  tlje  %nm  of  ©II  UOllClt  COttOJt  a  Patent  (UJljiCfj 
I)C  ijil5  fCt'U)  ot  King  William  the  Conqueror,  under  fueh  Seal  as  is 
above  laid,  to  be  put  to  the  Grant  to  the  Dean  and  Chapter  ot  Well- 
miniter,  UiijICl)  IIHIC  UUVOC  to  the  Abbot  of  Battel,  ilUD  lUljiCD  lUa-)  t\)Z 

Cljartcr  ot  tijcif  jf  ciuiDationv   asiu  tlierc  tss  ratotljcr  Charu-r  of  king 

William  Rulus  under  his  Seal  tO  t!jC  fiiniC  ^UllOt     3D!t!e  'SMM\^  9U= 

glor.  67.  68»  of  tl)c  QnttQUltP  of  ^caUS  of  ilDn,c  e.c  lAClatioiic 

9.  On  the  nth  Day  of  June  43  E.  3.  the  King's  Great  Seal  was  fafe- 
ly  laid  up,  and  another  Seal^  engraven  'isith  the  Stilc  of  France^  was 
taken  and  ufed,  and  fundry  Patents,  Charters  and  Writs  there\vith 
lealed  ;  and  the  fame  Day  were  all  other  tlie  King's  Seals  in  like  So.c 
chang'd.     Prynne's  Cott.  Rec.  Abr.  108. 


(B.  b.)     The  Dherjity  of  Seals,   and  what. 

i.nrroeEC  ig  ^twam  nmtJc  tnancintt  I5m\$  mm  EecoriJS  of 
X   Wiit^  unCEC  tlje  Targe,  auc  U5it!30Ut  tijc  CarQ;e.  17  e.  3» 

59*  b*  9  09an  f)a5  WHt  of  Scire  la.ias  without  the  Targe. 

2.  IX  fCCiVifi  ttjiU  by  Writs  under  the  Targe  is  intended  Writs  fealcd 
with  a  Part  of  the  Great  Seal  of  England,  llilicec,  that  Part  which  has 
the  Sculpture  of  the  Target,  auH  15  fO  CnJICil  frOUl  1\}Z  \pm\tt  Of  tijC 

CatBtt,  U)f)ic{)  10  mane  upon  tije  naai'  ai  xiyc  v^m  br>  r-jc  laiD  i^.\n 
of  tljc  ^cnu 

3*  Cfjerc  10  ^^eiitton  mane  ofi^ritsfabpede  sigiiii,  nd  of  Oat= 
iaujricp, 

4,  It  rCCm0  bP  tljiS  is  intended,  when  the  Writ  has  the  Print  of  the 
Foot  of  the  Great  Seal. 

5-  Cljerc  is  f^^ention  mane  fomctimes  of  l©n't0  under  the  Half 

Seal,  nSi  S  £1.  cap.  5.  Uj(]Cre  It  10  enatted.  That  all  Sentences  given  in 
a  Marine  Caufe  upon  Appeal  to  the  (^een  in  Chancery  bv  fuch  Com- 
milfioners  or  Delegates,  which  Ihall  be  nominated  by  the  Qj.icen  and 
her  Succeffors,  by  Comnii/fion  under  the  Pfalf  Seal,  as  it  hath  been 
heretolbre  ufed  in  fuch  Cafes,  ihall  be  final  &c. 

6.  Tiiere  is  a  Seal  for  the  County  Palathie  of  Lancajler,    and  ancthcr  for  s  p  ,  j  „(.^y 
the  Jjt'.tchy  (f\.  z!)  inch  Lands  as  lie  out  of  the  County  Palaune,  and  \zS.'?A\\. 
yet  are  Part  of  the  Dutchy  ^  for  fuch  there  are,  and  the  Dukes  of  Lan-  9  W  ^  in 
calterheid  them,  but  not  as  Counts  Palatine,  tor  they  had  not  ]uraRe-  9^%"^ 
galia  over  them.     It  is  for  this  Reafon  that  the  King  may  make  a  Cor-  (^[^'j^  ^' 
poration  by  the  Seal  ot  the  County  Palatine,  within  the  County  Pala- 
tine; but  he  cannot  grant  or  make  a  Corporation  by  the  Dutchy  Seal 
within  the  Dutchy  Lands.     3  Salk.  in.  Hill.  2VV.  3.  JB.  R.  in  Cale 
ot  Cotton  \.  johnlon. 


S  (C.  b.) 


yo  Prerogative  of  the  King. 


Grant.     Seal.      fHjat  Thino-s  or!(rht    to  be 
See  (P.  a.  6)  granted   under  the*  Crcat  Seal. 

pi.  lo.  —  (E. 

b  DS.dO  I.  THY   the  Common  Law  nO  (SlMnt  Of  tIjC  IM\\%  13  illjailablC  OC 

S'T  ;  Si.    iJ  p!c:rua'oic  but  unncr  tijc  €>rcat  S^cal  of  (i;n0lanii.  Co»  2» 

"««.?;'/.  2  Inft.  Lane's  CafC,  i6,tl.  }5CU  CurJaiU  ITfOlUCQ* 

At  tiie  niak-      2.  28  £.  I.  cap.  6.  Hc'/iccfortb  ?i(j  }}r:t  ccncemliig  the   Covnmcn  Lain Jh all 
in;;  tins  Sti-  ^-g  a-jcarded  under  the  Petit  Seal. 

tutetheKing 

had  three  Seals  I.  Maj^num  Sigillurh,  the  Great  Seal.  2.  Parvum  Si£;:llum,  the  Hrtle  or  Petit  Seal. 
5.  J-ignettum,  the  Signet.  ThcGxxiXX.  i^ciWs  in  the  Ciifiody  of  tie  Lord  ChitrueUcr,  ox  Lord  Keeper  of 
the  Great  Seal ;  ai.d  there  is  a  'pecial  C'fficer  in  the  Court  of  Chancery,  called  Sigillator,  wlio  hath  the 
fcalinr  of  VVvits,  and  other  Thir-g.s  that  pals  the  Great  Seal.  Parvum  Sigillum,  the  little  or  Petit  Seal, 
after  tins  Time  called  the  Privy  Seal;  this  Seal  is  in  the  Cuftody  of  the  Clerk  of  the  Privy  Seal, 
lometime  called  Kcepe''oP  thf;  Privy  Seal,  after  called  Lord  Privy  Seal,  of  whom  Fleta  fays  thus  : 
Cuftodi  (lc;il!i  privati  aifocientur  Clerici  honefti,  &  circumfj-^ecti  Domino  Kegi  jurat!,  qui  in  legibus  & 
conl'uetudinibus  Anglicanis  notitiam  h.ibeant  pleniurem,  quorum  Officium  fit  fupplicatione.s  &  querelas 
conquerentium  audire  &  exami"are,  &  eis  fup^-r  qualitatibus  Injuriarum  oftcnft.rum  debituni  Kemedium 
e\hibere  per  brevia  Regis.  By  this  ancient  VS'riter  three  Things  are  to  be  obferved  ;  i.That  the 
Clerks  J£'cciates  to  the  Keeper  of  the  Privy  Seal  are  thoie  that  we  now  call  the  .V^.fiers  of  Rcijuefis, 
Magillri  a  libellis  fupplicum,  whole  Office  is  here  lively  pcurtrayed  out,  viz.  quorum  Officium  lit 
i'upplicatiores  &  Querelas  corouerentium  audire  &  examirare  2.  Of  what  Quality  ought  thefe  Mat- 
ters of  the  Requefts  to  be?  They  mull  have  three  Qualities,  i.  They  rouftbe  *  honelH  &  circum- 
fpeCti.  2  Domino  Regi  jurati.  5.  Qiii  in  Legibus  &  Confuetudinibus  Anglicanis  Notitiam  habear.c 
pleniorem.  5.  To  what  end  did  they  hear  and  examine  the  Matters  contained  in  thefe  Petitions  ?  Ut 
eis  (id  ell)  conquerentibus  fuper  qu.litatibus  Injuriarum  oftenfirum  debitum  P-emcdiura  exhibere  per 
breve  Regis.  So  as  their  Office  was  that  being  learned  in  the  Law,  they  fhould  direit  fuch  as  peti- 
tioned to  the  King  to  take  their  Remedy  by  the  Kirg's  Writ,  that  is,  by  original  Writ  in  the  Chan- 
cery. And  hereby  it  appears,  that  this  Att  is  but  an  Affirmance  of  the  Common  Law,  for  no  Writ 
before  this  Aft  could  have  been  fealed  by  the  Privy  Seal.  2  Lall.  554,  555.  cap.  6. —  *  Flcta.  2  lib. 
cap   15  S    I. 

This  Aft  fays  not,  That  all  Writs  which  concern  the  Common  Law  fliall  pafs  under  the  Great  Seal, 
hut  r.o  Jf-'rits  pal!  tafs  under  the  Priiy  Seixl  <-xhich  tcttch  tl e  Common  Laiv ;  For  it  is  to  be  known,  that 
the  Court  of  the  King's  Bench,  and  tfie  Common  Pleas  had,  at  the  making  this  Statute,  feveral  Seals, 
whereby  tliey  ftaled  judicial  Writs.  As  the  Seal  belonging  to  the  Court  c/'  Kings  Bench  is  in  the 
Cuftc  dy  of  the  Ch  J  and  fo  likcwife  the  Seal  belonging  to  the  Court  oi Common  Pleas  is  in  the  Cuftody 
of  the  Ch.  J.  of  that  Ccurt,  and  the  Seal  belonging  to  the  Court  of  Exchequer  is  in  the  Cuftody  of  the 
Chancellor  of  that  Court.  Ad  Cancellarium  Scaccarii  pertinet  Cuftodia  hgilli  Regis.  *Officium  Can- 
cellarii  eft  figillum  Regis  Cuftodire,  fimul  cum  contrarotulis  fuis  pro  proficuo  Regni,  and  theic  Seals 
are  Intidetits  i>:feparahk  to  tie  faid  Courts  for  the  fealing  of  all  judicial  Writs  &c.  vvliicli,  for  Admini- 
ftration  of  Juftice  diftributive  to  all  Men,  are  refpeftively  under  the  laid  Seals,  and  without  wlich  the 
Courts  cannot  .tdminijler  Juflice  \  and  therefore  the  Profits  coming  of  thefe  Seals  have  been  letten  and 
demifedof  ancient  and  latter  Times,  but  the  Seals  themfelves  were  never  demifed,  or  letten,  nor  coull 
be,  nor  any  other  Keeper  appointed  to  be  Keeper  ot  them,  than  has  been  Time  out  ot  Mind.  2  lull. 
555.  cap.  6 —  *  Flcta.  2  lib.  cap.  29. 

Sooftrar-         3.  Note  per  Cur.  Arguendo  in  Writ  of  Efcheat,  that  Prote5fion  upon 
rant  of  Ef-     Pri\  V  Seal    is  not  2;oodi  For  it  ous^ht  to  be  under  the  Great  Seal.  Br. 

foian  ae  Ser-     r>o-  i  ^-  rr/r 

•vitio  Regis.     Protection,  pi.  13.  cues  35  H.  6.  2. 

Ibid.        '         4.  4  //.  7.  cap.  14.  All  Grants  and  Writifigs  of  Lands y  and  other  7'hiiigs 

pertaining  to  the  Earldom  of  March,  Jhallbe  under  the  Great  Seal,  and  not 

under  the  Special  Seal. 
]bid  Marg.  5.  The  Statute  of  27  H.  8.  of  Eftabliflimcnt  of  the  Court  o^  Jagmcn- 
fays,  Itap-_  tations  enafted,  That  all  Patents  to  be  mxAafor  Life  or  Tears,  of  any  Of- 
cnd"  ^tiwt^'a.^'^^  concerning  the  Lands  of  the  Court,  Jhall  he  fealed  with  the  Great  Seal  of 
Grant  under^^'^^^  Court  Sc.  The  Honour  of  Petworth  in  Suliex  was  by  A£t  of  Par- 
the  Great  liament  within  the  Survey  of  that  Court.  The  King  granted  the  Oiiice 
Seal  is  good;  of  Stew  ard,  and  diverle  other  Cilices  of  the  faid  Honor,  to  the  Earl  of 
Afti'sVpro  Southampton  tor  Life  by  Bill  affigued,  which  paifed  under  the  Great 
vifo,  that  '  Seal  in  Chancery.  And  whether  this  Grant  under  that  Seal  was  good  or 
Tenure  in  not  wasmuch  doubced,  by  reafon  of  the  above  Claufe.  Diverie  Serjc- 
Capite  fhall  ants  thought  it  the  fureft  Way  to  have  it  under  the  Seal  of  Augnienta- 
h  In'c^ants  '^'°"'  becaufe  of  the  Word  (lliali)  which  is  a  Word  obligatory,  and,  a,s 
of  any  *"ln-  it  were,  compulfory ;  but  Ionic  thought  the  Grant  under  the  Seal  of  tlie 

Chuncciy 


Prerogative  of  the   King".  71 

Chancery  good  in  Law  ;  For  Bromley  f^iid.  That  if  ic    be  enacted  by  hci-itaiuc 
Parliament,  that  the  youngeft  Son   Ihall  have   Appeal   of  the  Death  of  m^'ds  by  t!i: 
his  Father,  this  does  t  not  eKciude  the  eldcll  Son  of  his   Suit,  becaufe  ^'T^^-'''"'' 
there  arc  not  any  Words  uf  ReJirMiit.  D.  50.  pi.  i.  Mich.  33.1^.  8.  Lord  Puito:r.s?tj-. 
Southampton's  Cafe.  tmcs  618  b 

*  [ofy 

ny  fuch  Lards]  Raft.  Stat.  7;8.  fanigmph  z.- f  S.  P.  Arjj.and  rcrolved,  that  in  the  priniipiil  Cafe 

in  D.  5c.  a,  Dtmife  madcurdcf  tl:c  Great  .'■c;il  ot  Lands  within  tlie  Survey  <.f  the  Court  of  Aiif^nic'tati  • 
on  by  the  Authority  of  the  ianr.e  Look  is  not  void.  1 1  Kcp.  6^.  b.  Mich.  12  Jac.  in  Dr.  poller's  Call;. 

6.  Great  Seal  fhall  be  ahvays  crcditcHj  and  where  the  Certificate  under 
it  is  not  ilrictly  true,  there  is  no  Remedy  but  an  A61  of  Parliament, 
or  by  Authority  oi  the  Chancellor  of  England,  to  caufe  the  Parties  to 
bring  the  laid  Exemplification  v\ith  them  into  Chancery^  there  to  be 
cancdkd^  or  remain  with  &c.  as  was  faid  in  the  2I)UfeC  OT  Ji^JrcOlU'S" 
dafC.  £ut  in  Exemplification  under  the  Seal  of  C.  B.  or  B.  R.  or  Ex- 
chequer, it  isotherwiibi  For  they  have  not  fuch  Force  in  themlelves, 
nor  import  fuch  Truth  3  per  onines  Juil.  Dal.  19.  pi.  4.  3  &  4  P.  &  M. 
Anon 

7.  fl.  8.  feifed  of  a  Manor  as  Parcel  of  his  Dutchy  of  Lancafter, 
grants  to  the  Fraternity  of  VN'alden  t-so  Mills  Sec.  as  Parcel  of  the  faid 
Manor  in  Fee,  rcfervmg  <?  yearly  Rent  oi  io\.  and  then  grants  the  Manor 
and  Rent  to  Ld.  Audiey  in  Fee.  Ed.  6.  upon  the  Diliblution  ot  the  faid 
Corporation,  grants  the  fiid  Mills  to  the  Corporation  of  the  Vill  of  Wal- 
den,  reier\  ing  a  Rent  ot  10  1.  Nobis  Hseredihus  &  Succellbribus  vel 
tali  Capitali  Domino  ad  quern  &c.  de  jure  pertinebit  &c.  It  was  held, 
that  the  Manor  and  Rent  were  not  palled  together  by  the  Grant  to  Ld. 
Audiey,  but  fevered.  For  the  Manor,  with  us  Rights,  Members,  and 
Appurtenances,  was  granted  under  the  Dutchy  Seal,  by  which  the 
Rent  could  not  have  paifed,  and  the  Rent  was  granted  under  the  Great 
Seal,  which  otherwile  could  not  have  palled  at  all ;  and  lor  this  R.eafoa 
it  was  adjudged.  That  the  Corporation  of  the  Vill  of  VVaideti  llioukl 
pay  a  Rent  of  10  1.  to  the  Crovvn,over  and  above  the  Rent  referved  to 
Ld.  Audiey,  which  wasnotdue  to  him  as  Capitalis  Dominus,  by  Reafoa 
of  the  Severance  in  the  original  Grant.  Adjudged.  Mo.  167.  Mich.  26 
&  27  Eliz,  the  Cafe  of  Saliron  Walden. 

8.  The  granting  of  R(./)r;/^?/j  fx^rao/v///7.';r)'  is  always  under  the  Great 
Seal.  I  Molloy  28.  cap.  2.  S.  8. 


(D.  b)  What   Things  maj  be   granted  under    the  Great 

Seal. 

I*     A     Prefentation  tO  tl  CIjUVCl),  the  Advowfon   of  uhich  belongs  5;  q  r^orUk 
jt\  to  the  Dutchy  of  l.ancaller,ma5>  llC  (Vrantetl  UltHCrtlje  (Sltat  Parcel  of  the 

g^cal ;  Jor  it  t5  a  if lotucc  flUicn  f roin  tfjc  'Wut,  am  not  roitijui  p^Mon.  <,f 

■        -  -       --  _-  _       -_     .  .        _^  .  ,  the  Dutchy 


Clerk  to  t'lc 
Ordinarv,  and  docs  not  concern  the  Inheritance;  and  it  was  held  fuch  Prefentation  might  be  even  by 

Parol.     Moor  S-4  lilich.  1 1  Jac. But  fuch  a  Grant  of  a  l-f^m-d  of  the  Dutchy  i.s-  not  gocd,  as  has 

been  adjudged.     Mo  8-4  cites  Trin  S  Jac.  Rot.  181 1. .S.  C  cited  z  Lutw.  1237  in  Cafe  of  Af- 

tiU  V.Clark. If  theKii'g  has  an  Advowfon  in  right  of  tiic  Dutchy,  he  may  prefent  thereto  in 

right  of  the  Crown.  Cro  J,  24.S.  per  Coke  J.  Trin.  S  Jac  C.  B.  in  Cafe  of  the  King  v  .  . . . — [Which 
Teems  to  prove  the  fame  Point,  that  a  Prtfentatia:  to  a  Church,  Parcel  of  the  Dutchv,  m..y  be  under 
the  Great  Seal.] 

2.  But 


72  Prerogative  of  the  King. 

vS.C  cited  2       2»  But  n  tSrant  of  tf)C  next  Avoidance  Cf  fUCfj  atlliOterOlt  CnitllOt 

till  V.  ciarL  r^»  10*  Ia>  'B*  per  Curiam* 

Bi-ov.-jil.  iSi.       3    A  Pnfentiinou  was  made  under  the  Great  Seal  to  a  Church,  which 
r*^  ^r^f  ^'  "^'""^  ^'^S  '"'■^'^  '"  ^'■^^■'^  "f^  U'ln!,  and  held  good  ;  for  that  he  may  make 
ci'tM'Mi'io   fuch  Prelcntation  either  under  the  Seal  of  the  Court  of  Wards  or  the 
Jac  S.  P.ad-  Great  Seal.  Cro.  C.  70.  Mich.  3  Car.  C.  B.  Stephens  v.  Potter, 
judged. 


(E.  b)  What  l^hings  dons  under  the  Excheqinr  Seal  iliall 

be  good. 

S  C.  cited      U^TDe  I-J'ng  r.WP  make  a  Man  his  Bailiff  of  his  Manor  'jy  PatCnt 

Gibb  29;.        _£   iint^et:  toe  CMfcijeQUCi*  €)ca!,  anD  it  lijdli  tic  ijoou*  $33»  5,  Ia» 

in  Cafe  ot      ^^  bttlUSiU  Tomluifoii  and  Be>ifo;j,  pCt  Ciifiamv 

KeyeV'  -♦  SiC  ii>   ltialtC0  Q  Leafe  relerving   Rent,  auti  aftCr  10  OlltlaUJCS, 

nnO  tljlij  fOUnn  t^P  iJnqUirstlOn,  tfje  i-^inS  map  grant  over   the  EeneHc 

of  the  Outlawry  In  a  coruHion  li^Eifou  uuBCf  t\)z  (grcIjCQUcr  €)cal, 

anti  tljCrCtipUn  IjC  m^iy  ha\  e  Account  lor  the  Rent  incurred  arcer  againll 
the  Lelfee.    ^ICij,  ioCar>'B»K»  ^itmZZWCalieppcr  and  Coventry,  T^tl 

Ciirmm,  upon  a  rpecia!  s^crBsft,  ani3  lijc  court  ttjen  fatQ,  ®Dat  tyi^ 
inasi  ti}c  common  Ccurfe  of  tije  €u\jtmti,  :jntratur*  '2rrin>  7  Car. 
Kot*  835, 

On  a  fpecial        s,.  C(  Leafe  for  Years  Of  laitH  lltaBC  bv  the  King  UHtiCr  tIjC  C:rCi)e== 

verdidu  j,^..^.  g.,^^1  ijp  tijeCUiJonioftije  Court  Of  t!)e  Cccljeauec  id  pon, 
trattheki'pg  an0  fijail  i3tntj"t{)3  mm  i  lor  it  i)n0  htm  fa  Cinie  out  of  mnn  $c, 

made  a  ie<,ye  (£o*  2,  Lane's  Cafe*  aOjUDgtU*  1 6  b* 

yo»-Z,.'/e  under 

the  Excliequer  Seal,  Rem/r/niier  for  Life,  Sue.  refervive;  lie  itfual  Rert ;  and  it  was  objefted,  that  the  Leafe 
■was  not  good,  becaufi  a  Freehold  could  not  pats  from  the  Ki:!;:;,  but  by  Patent  under  the  Great  Seal ; 
but  adjudged  by  all  the  juftices,  that  the  Leafe  ivasgood,  and  for  the  Kind's  Benefit,  that  hi:>  Lands 
iliould  not  lie  unlettcn.   Cro.  C.  515.  Hill.  15  Car.  B.  R.  Rot.  1251.  Kemp  v.  Bernard. 

4,  8  to,  6,  34.  1%  13t,  leafed,  7 1*  i!30ta,  tijat  tlje  order  of  the 
Exchequer  is  to  make  their  Leales  bv  the  Word  Comniittimus  fUCi) 
lanQS  Habendum  &c.  Reddendo  fUClj'jCrmS  [Rent]  tljl.S  10  i\  SOOU 

Leafe  bi)  tije  ancient  Hiagc  tijere* 

Go  C  513.  5,  ^  Leafe  tor  three  Lives  mX^t  bD  tl)C  xMW^  of  Land  Parcel  of  the 
^^^  ,^_^y^  Potlelfions  of  the  Crown  UUBCr  t\}t  <^lcd)tCiilti  ^eal,  though  the  RenE 
Ch  B  do'ibt^referved  be  not  averred  to  be  the  ancient  Rear,  vet  It  Id  gOOU  ;  Idt' 
edihisCafe,  CHUfe  It  10  tftC  ancient  Ufagc  of  the  fiid  Court  af'€rc!)ei}UCr,  UJ^eteof 

and  that      jiu  {jtDfc  Couttd  ouiTljt  to  taUc  Conufance  taltljout  ^'uerment* 

from  tjie  ge-  ^jj-|j^  ^^  ^^^^  ^^  ^^  betmCCU   Ken/p  and  Bm-nard,  aDjUUgCD   pet  t^^ 

of 'the  Books  tarn  Curiam  upon  a  Demurrer*  luttatuc  Ipill*  isCar.Eot; 

the  CJiui/ty      I252» 
there  muft 

refer  to  the  ^fai^mr  of  grating,  and  taking  it  fo,  he  know.s  of  no  Authority  t3  fupport  fuch  Grant ;  Bat 
if  an  Office  for  Life  had  hssn  found  to  hi"  an  ancient  Office,  and  to  have  been;//";.';!.'/)'  granted  nthbr  the  Ex- 
chequer Seal,  it  might  be  good;  and  the  whole  Court  inclined,  that  an  Office  forLife  granted  muft  be  under 
the  Great  Seal  ;  but  this  being  on  the  firft  Argument,  Ld.  Ch.  B.  faid,  he  did  not  deliver  it  as  his  final 
Opinion   Gibb.  294  in  the  Exchequer,  Trin.  5  Geo.  2.  Mills  v.  Keyes. 

6.  €0.10.  priB*  f  5i3ap.  12.  w^oii  tlje  €)tatutc  of  35  Ei.  cap.  3. 

tlie  i©J00  (ConHrmation  of  Letters   under  any  Seal)   atC  intCrprCtetl 

unijer  tije  Crcijeqiier  or^  ^usjinientation  ^eai» 

So  where  7.  In  an  lutbrmation  of  Intrulion  upon  Demurrer  the  Cafe  was,   th.ic 

the  Queen  the  Husbind  dcvifcd  to  his  Wife,  who  was  an  Alien  born,  and  by  a  Co;n- 
made  a  Z,i!../2  j.j^jIJ5qj^  Under  the  Exchequer  Seal,  ihe  was  found  to  be  {o  i  by  reafon 
CMiilhnu     whereof  the   King  was  intitled  to  the  Land  ;  but  adjudged,  that  the 

Inquilition 


Prerogative  of  the  King.  7^ 


Inquilition  \\'as  void  j  becaufe  this  is  Office  of  Intitltng^  which  fhould  *«  ""'  "? 
be  under  the  Great  Seal,  but  an  Olfice  of  Inftruction  or  Intormation  ^"^-M^^nt 
may  be  under  the   Exchequer  Seal.  5  Rep.  52."  Mich.  29  &  30  Eliz.  in  upoii"l'ai 
Scacc.  Page's  Cafe.  „,,^r„„  a- 

wardeci  «K(/«c 
the  Exchecjuer  Seal ,  it  was/w/B^,  that  the  Rent  mas  votfaid,  and  thereupon  tlie  Queen  makes  a  new  Leafe. 
Upon  a  fdecial  Verdift  in  Trcfpafs,  the  Plaiiitirt  had  |udp;mcnt  (or  this  Rcalon  (among  others,)  That 
the  Con  niliior  ur.der  the  Excliequer  bcul  was  not  fuScient  to  find  a  C(  ndition  broken  upon  a  Leafe  for 
Li-b,  though  upon  a  Leak-  for  Years  it  niij^ht  be  fouiid  and  in  any  County  being  an  Office  only  to  in- 
form the  Queen   Cro.  E.  S55.  Trin.  42  Ehz,.  Rot.  641.  B.  R.  Parflow  v.  C^orn.- t.ites  Paich.  27  Eli?.. 

Knijjhc  V.  Beecli. 

J)o  a  fpeciai  Verdict  in  Ejcftment  found,  that  the  Defendant,  being  indiSled  on  a  Statute  iS  Eliz. 
for  a  Prewtoiire,  made  a  Gijt  in  'liiil  ot  his  Lands,  ai/d  nv.is  afterwards  Jound  Guilty  ;  and  then  by  a  Com- 
mijjhn  under  the  Exihecuer  Xeal,  it  was  fomid,  that  he  was  Jeifed  in  Fee  M  the  Time  ofihe  Offence  com- 
muted, and  that  the  Queen  had  granted  the  Lands  to  one  under  whom  the  Plaintiff  claimed,  and  that 
the  Defendant  claimed  under  the  Tenant  in  Tail  ;  Adjudged,  that  to  vert  the  Lands  in  the  Kino-  there 
mull  be  an  Office  found  by  Inquifrion  under  the  Great  Seal,  without  which  the  Freehold  could  not  be 
di-eiled  from  the  Parry,  and  that  the  In.;ulfition  under  the  Ex'chequcr  Seal   is  ofly  an  Information  to  the 

King  and  his  Officers  to  put  tie  Lands  m  Cbarce   Cio  C.  172.  Hill.  1  Car.  Rot.  i)2S.  GroHe  v.  Gayer. ■ 

Jo.  217.  Mich.  5  Car.  B.  R.    S.  C.  by  Name  of  Grolle  v.  Gayne. 

8.  li  zny  Manor  or  Land,  of  ivhatfucvcr  Value,  comes  to  the  King  hy  So_i  Leafe  for 
Attainder  or  otberzvife,  the  C'^/rciy)' thereof  may  be  granted  over  under  ^''^'''^of  an- 
the  Exchequer  Seal  by  the  Authority  of  the  Lord  Treafurer  and  ^'|,"^,[^^'"'''' 
Chancellor  there  without  fpeciai  Warrant  i  For  it  is  but  a  difpoling  to  the  King 
of  the  Profits,  becauie  the  King  hinilelf  cannot  manure  it ;  And  it  is  hyAttainder, 
always  revocable.  Si  quis  plus  dare  voluerit.  Cro.  J.  109.pl.  6.  Hill. 'j^'^pt  aChat 
3  Jac.  B.  R.  per  Popham,  to  which  the  other  Jultices  agreed.  Predy-  a,'[d"y^"d'  i 
man  v..VVodry.  forhirbeft" 

therefore  is  grantable  under  the  Exchequer  Seal ;  For  it  is  as  a  Sale  ;  and  therefore  the  Grant  is  ^ood. 
Cro.  J.  lop.  Predymin  v.  \N  odry.  *■ 


c 


(E.  b.  2)  Dutchy  Seal. 

I.  TK  Qliare  Impedit  it  was  agreed,  that  there  was  a  Statute  H.  5. 
j^  that  no  Lands  nor  Tenements  ot  the  Dutchv  of  Lancalter  might 
pafs  from  the  King  but  under  the  Seal  ot  the  Dutchy  of  Lancalter  ^ 
And  theretore  per  Danby,  It  the  King  grants  an  yldimvj'on  of  the  Dutchy 
iindertbe  Seal  of  the  Dutchy,  and  alter  conftrms  it  Ly  [he  Great  Seal,  this 
is  a  void  Confirmation.  Qusere.  Br.  Patents,  pi.  88.  cites  32  H. 
6.  22. 

2.  Where  Leafes  are  made  of  Lands  which  are  ne^vly  annexed  to  the 
Dutchy  of  Lancajier,  and  lying  within  that  County  Palatine;  if  they  are 
fealed  with  the  Seal  of  the  Ducchy-Court  at  Wellminlter  they  are 
■void,  becaufe  by  the  Statute  37  //.  8.  ca^.  a^o.fuch  Lands  and  Polfel'hons 
muft  pafs  under  the  Seal  of  the  County  Palatine,  and  not  under  any  other 
Seal,  as  it  feems  by  the  Intendment  of  the  Aft,  though  it  be  not 
fully  fo  exprelled.  l)y.  232.  pi.  7.  Mich.  6  &  7  Eliz. 

3.  It  was  faid  by  the  Court,  that  a  Grant  of  an  Office  of  keeping 
the  Courts  of  the  Dutchy  Land  hy  Prizy  Seal  is  not  good,  but  it 
ought  to  be   by  Dutchy  Seal.  Noy.  53.  Ld.  Willoughbv  v.  Kempe. 

4.  A  Quellion  was,  \Vhether  the  Grant  of  a  Fair  under  the  Great 
Seal  was  good,  where  the  Queen  was  fcifcd  in  Right  of  her  Dutchy  of 
Lancajier  f  Grin  other  Words,  Whether  the  Grant  of  this  Fair  tliall 
be  taken  as  part  ot  the  Polfelfions  of  the  Dutchy,  and  fo  not  pals  but 
under  the  Seal  of  the  County  Palatine^  And  adjudged,  that  a  Grant- 
under  the  Great  Seal  was  good,  becaufe  it  Avas  a  Franchife  created 
de  Xovo  by  Virtue  of  the  Prerogative  Roval,  and  cannot  properly  be 

T  called 


7  4.  Prerogative  of  the  King. 


Ful.  i.S;. 


culled  a  Pollellion  ot  the  Dutchy.  y\nd  though  by  the  3  H.5.  it  is 
emitted,  that  no  Giants  of  the  Polieffions  of  the  laid  iJutchy  liiall  be 
made  but  under  the  Dutchy  Seal,  this  is  to  be  intended  ot'Things  na- 
turally ariling  from  the  Lands  as  Rents,  Wa)S,  Mills  &c.  which  fa- 
vour of  the  Land,  and  fuch  Franchifes  were  thereby  profervcd  which 
■were  then  in  being  i  but  this  Grant  of  a  Fair  is  a  royal  Franchifc,  and 
created  de  novo,  and  lb  not  within  that  Aft,  and  cannot  pafs  by  the 
])utchy  Seal.  sLutw.  1233.  to  1237,  Mich.  10  W.  3.  C.  J3.  Allill  \-; 
ClarkJ. 

5.  Whereupon Treby  Ch.  J.obferved,  That  there  was  a  Difference  be- 
tv.eenPoiielhonsand  Prerogatives  ;  and  that  Pj(fel/ions  ought  to  pals  un- 
der the  Dutchy  Seal,  as  above,   but  Royal  Franchjes  (as  a  Fair  &c.  out  cf 
the  Comity  Palatine,  and  wit  bin  the  JJntchy)  ought  to  pafs  by  the  Great 
Seal.  2  Liitw,  1237.   Aftill  v.  Cleric. 

6.  All  Corporations  made  within  the  Dutchy  of  Lancafter,  and  out  of 
the  County  Palatine,  by  the  Dutchy  Seal  are  without  Warrant ;  For  to 
make  a  Corporation  is  fus  Regale,  and  cannot  pafs  by  the  Dutchy 
Seal  i  But  within  the  County  Palatine,  the  King,  by  the  Dutchy  Seal, 
may  make  a  Corporation,  becaufe  the  Duke  of  Lancafter  had  Jura  Re- 
galia i  per  I'reby  Ch.  J  in  delivering  the  Opinion  of  the  Court,  a 
Lutw.  1237.  in  Cafe  of  Aftill  v.  Clark. 


(F.  b)  King,  Warrant.  Seals,  Privy.     By  what  Warrant 
the  King  may  do  Things.    '"^   \_Prrjj/  Seal.~^ 

*  Thercare  4 

Clerks  of  xhc  I.  *r-pi|3e  t^arrant  toljicDiss  fufficicnt  in  jLaui  to  iiTue  the  King's 

PnvySeal,  J^    Trealure  ought  to  be  under  the  Great  Seal  or  Privy  Seal.  (£u* 

d'eh- Ancn-    "»  eCiUle  Of  DC^OU.  92* 

dance  on  the 

Ld  Privy  Seal  :  The  principal  Oj^Ve  and  Charge  of  the  Lord  Privy  Seal,  and  of  his  Clerks,  is  ithcut 
fuch  Tlings  as  pafs  by  Bill  Jif,!Jed,  and  are  to  go  to  the  Great  Seal ;  Of  tliis  you  may  rt.id  ia  the  Statute 
ZT  H  S.  cap.  II.  &  lib.  8.  fol.  iS  in  Caiu  Principis.  2  Inft.  555.  cap.  6. 

*  Chattels  real,  and  Inheritances  mull  pals  by  Grants  under  the  Great  Seal  ;  /';.-/  Pcrfcnal  things,  as 
Difpo'al  of  Money,  Horfes,  Armour  &c.  may  pafs  by  Cuftom  by  the  Privy  Seal.  Arg.  by  Coke  At- 
torney General  Mo.  4-6.  pi  6S1.  in  Cife  of  the  QuCtU  t).  DoDinotOlU  And  he  vouched  a  Prece- 
dent. I  E.  4.  Rot.  14.  Inter  Brcvii  coram  Baronibus  where  the  Sheriffs  of  London  •ivould  haie  exctifedthem- 
fekes  of  14.1.  cifpcfed  of  Ly  Cmiwand  cf  the  King  under  Us  Signet,  and  could  not,  but  were  forced  to  ob- 
tain a  Privv  Seal. 

The  Privy  Seal  is  not  fufficient  Authority  to  difpofc  of  the  Q;jeen's  Aloney  by  the  Lord  Treafurer, 
unlefs  where  it  is  due;  and  he  that  receives  Money  out  of  the  Ex-chequer  by  fuch  Authority  is  ac- 
countable for  it,  and  if  he  dies,  his  Executor  fliall  anfwcr  for  it  as  a  Debt  from  the  Teftator.  Cro. 
E.  545.  Dodington's  Cafe. 

Money  was  never  ifTued  on  the  Great  or  Privy  Seal  ;  and  anciently  there  were  no  Writs  of  Libe- 
rate for  tlie  Payment  of  Money  on  any  Debt  due  from  the  Crown,  or  any  Gr.ints  made  bf  any  Sums, 
but  afterwards  they  were  wont  to  grant  Patents  or  Privy  Seals  to  the  Tre.ifurer,  giving  him  Autho- 

ritv  to  ilTue  Warrants  for  the  Money.  Gilb.  Hift.  of  Excheq.   145. The  Writs   were  anciently 

direfted  to  the  Treafurer  and  Chancellor,  and  therefore  the  Warrants  arc  atprefent  fii^ned  by  the  Tre.i- 
furer  and  Chancellof,  and  mention  the  Authority  of  the  Broad  Seal  by  which  he  ifiliesthem.    Ibid. 

^  c.  cited  2     2,  c^e  I^inn;  map  grant  bp  Ijis  lettcrg  patents  under  his  Pnvy 

Mich''^S&  ^^^^'  to  aup  to  make  a  general   Attorney  in  all  Picas.  jf+  |3«  26*  b, 

29Eii/.:in  Eegta* 

Cafe,  and  fays,  That  with  this  agrees  57  li.6.  27.  b. 

Roll.  Rep.  7.      3.  -^{jc  l^ing  map  grant  an   Obligation  under  his  Privy  Seal,  ht- 
^-  ^-  CaUfe  it  10  but  a  COatteU  P*  12  2a.  15.  jR.  UPMm  Cnllcm  and  Sher- 

man, pet  Co  he*. 

4.  II  c 


Prerogative  of  the  King.  75 


4.  1 1  e*  I.  Kot*  \M.  Q3cmb.  13,  Hci*  commiiic  nBaltcrci  tic  3!Ul-- 

titirilC  OtHcium  Cancellarii  Regis  ia  Hiberni.i  by  Writ  de  Pri\  aco  Si- 

5.  Artie,  fupcr  Chartas  cap.  6.  under  the  Petit  Seal,  fliall   not  ilTuc  S.  C.  cited  2 
from  hencclbrth  any  WXlt  U3l3!Cl)   tOUCijCa  COmmOll  laU!»  Ar^'-, ' 'c^,; 

29  Elii.  in   Lane's  Calc, 

6*  C^JC  £^iri5  may  difcharge  a  Reco2;nizance  forfeited  by  his  Privy  PI-  S. 

Seal.  ryid).  II*  Car*  1^.R»  /r/v/;w^?'0Cafc,  tusjcrcituia^com^ 
irainGfO  bp  tijc  Emn;,  unBfu  Ijts  l^riDP  @cal,  to  niiiljarge  tlje  Hecan;= 
nuance  anD  to  (tap  procefc,  ano  m  Cunam  tl)is  iaas  lufficicnt  to 

Itay  Frocels.     Oaut  tijCp   lUCCe  rJl\)ll3C5  til  tljld  €)CtIiCet  VC\)ttl)CV  It  bC 

fiuiictcnt  to  mrcljarge  tlje  EecoQ:tit?ancr.  Oout  it  m§  ftiio,  tijat  it 

WaCi  I'.fUal  m  tlje  CCCijCqUet  to  enter  an  Exoneretur  upon  luch  Privy 
Seal. 

V^'^STije  £\ill5  map  command  tUlDer  IjI0  |:>-n^{)  giCal,  that  one  fliaJl  not  ^.c  cited  2 
go  ov  er  the  Sea  out  of  his  Realm,     jf  ♦  Jcl,  85*  a*  Rep.  i -.  b. 

Mich.  28  & 
29  Eliz.  in  Lane's  Cale. 

8*  21  Protcaion  or  W'arrant  of  an  Effoln'  t&  HOt  gOOH  UlttlCC  tIjC  P'-  <^- 
PriH)?  ecal.  35*  |)*  6,  Co* 2*  Lti»e  17*  b.     a  Dillharc;e  of  a  Debt  ^f  ^^-  ^] 

due  to  the  King  ituoet  W  PniiD  €)cal  is  fufficlcnt  Difcijiitge  in  lau3»  ^t,-];  ^,  /,,. 
1  €*  4*  €,c  parte  Ecuicuib,  Doniuu  Eegssi  JCict*  14*  ^.-mReghcm 

be  vvanante'd 
by  the  King  under  his  Privy  Seal,  nor  Proteftion  granted  under  the  Privy  Seal,  but  both  ot  them  under 
tie  Great  Seal ;  becaufe  they  tend  to  the  great  Delay  of  Juftice,  if  they  be  not  duly  obtained  ;  and' 
therefore  the  Law  doth  require  the  Great  Seal  in  tliefe  Cafes.  But  a  Warrant  of  the  Kin;?;  under  the 
Prizy  Seal  to  ijftie  out  Money  cut  of  his  Ccjjcrs  is  fuficicr.t ;  becaufe  ii:  concerneth  but  a  Ciiattel  in  PolVclTion. 
And  in  Matters  of  fmall  Moment,  and  wliich  can  vork  no  Delay  to  the  Subject,  the  Privy  Seal  is  fuffi- 
cient  ;  as  to  grant  a  Superfedeas  of  r.  Prcrcfs  in  the  Kirir^'s  oivnCafe,  cr  to  grant  a  Nif.  Prius  where  the  King 
is  Party-,  or  to  allo-jj  a  Plea  againfl  the  King,  to  cancel  a  Recogmzai^ce  made  to  the  Kifig,  to  di/cbarge  a 
Debt,  ortlic  like.     2  Inlt.   555.  cap  6. 

9.  '^i)t  it^atrant  of  tbe  Mm  by  Parol  j0  mt  Mfitimt  to  iirue  his  upon  the    • 

Treafure.      CO*  II«   Cat!  Of  i^fW//.  92.  Account  in 

the  Exciie- 
Cjuer  of  B.  Fulham,  the  King's  Butler,  he  demanded  Allowance  of  certain  Parcels  of  Wines  given 
by  the  King  to  certain  Perfons,  byword  of  Mouth,  without  VN'ricing,  and  it  was  difallow'd  by  the 
Rule  of  tlie  Court.  4  Inft.  ?  i  5.  - —  So  upon  the  Account  in  the  Exchequer  of  Richard  Bury,  Keeper 
of  the  VVardiobc,  he  demanded  Allowance  for  certain  X^eiTcls  of  Gold  and  Silver,  and  ccrwii  Jewels 
given  by  tl,c  Kir-j  Ore  tenus  to  Ifabel,  Queen  of  England  ;  and  others  to  Philip,  Qiieen  of  Ergland, 
Confcjrt  of  the  King,  et  non  AUoca'ur  by  the  like  Rule  of  the  Court:  For  the  Gifts  by  Word  in 
both  thefe  Cafes  are  void,  which  are  good  Rules  to  eliablifa  the  Law  in  a  Cafe  wherein  th;re  hath  b^en 
Variety  cf  Opinions  in  our  ijooks.     4  Infl:.  115. 

10*  Jf  tije  King  prefents  B.  and  upon  Rcfufil  of  him  brings  Qiiare  -cc  (O. b.) 
Impedir,  and  pending  this,  C.  *  proeures  of  rhe  King  a  Prefenration  Of  i  /?  ^-  ;]|~7 
JjiUilelf,  \'.ithout  mention  of  the  tirft  PVCfCtrtatlOlT,  Hm  after  rhe  King  ^^-  "^'^"J,* 
iiotihes  to  the  Juitices  where  this  depends,  by  his   Letters  iigned,  that  Trin.  44  £1. 
he  had  lorgot  the  iiril  Prefenration,  and  lavs,  That  his  Plcaiure  is  that  i"  Green's 
the  firtl  Prefentation  Ihall  Hand  firm.     Cj)OU0,1j   tljiSj    iN^otihcation  tuay  9''-',~  1^*  ^" 

not  uuDcr  thz  iSreat  ©cal,  pet  it  i.^s  ijooia*  TdM  t'mu  tlje»  mm  ["left  a  h"<^i 
ti3Cir.fci'oc0  iVilo  becaufe  tije  Deceit  m^  confeiTen  up  ti)e  Dcmiutet*  Blank  be-"" 

D*  17*  €1»339*  47+  twcen(C.) 

and  theV\  ord 
(Procures)  which'  fecnis  to  be  only  an  Overfight  in  the  Printing  ] 

II.  Ralph  Everden,  Knt.  brought  a  Writ  out  of  Chancery,  and  alfoa  Br  Exempti- 
VV^rit  of  Privy  Seal  to  the  Judges  rcciTifig^  that  he  ivas  a  Biroiiy  and  com-  ons  pl.3.  cites 
manning  thwi  to  difcharge  him  to  be  of  Juries  &c.  And  bv'good  Advice^'  ^ 
he  was  entirely  difcharged.     6  Rep.  J3.  in. the  Countels  of  Rutland's 
Cafe,  cices  48  E.  3.  30.  b. 

12.  i^  R. 


-76  Prerogative  of  the  King. 


12.  13  R.  2.  I.  No  Pardon  of  7'reafon  or  Felony  pall  faj's  without  }Var- 
rant  of  the  Privy  Scol. 

15.  The  King  by  Privy  Seal  licenfai  the  Maflcr  of  the  Ordnance  to 
take  all  imferviceable  Iron  Ordnance  6cc.  upon  a  Suggeilion,  that  rhofe 
Things  had  been  nfiially  taken  as  Fees  &c.  belonging  to  his  Ofrice:  Re- 
folv'ci,  that  becaul'e  the  Office  itfelt*  was  but  newly  ereftcd,  and  fo  the 
Privy  Seal  was  obtained  upon  a  Jalfe  Suggejlton^  the  King  was  deceiv'd, 
■and  by  Confequence  the  Pnvy  Seal  was  void.  11  Rep.  89.  Hill.  4  Jac. 
Earl  of  Devonlhire's  Cafe. 

VM.  •59 ^  14.  The  Forfeitures  of  the  Sums  on  feveral  Recognizances^  for  not  appear^ 

Paich.  1:.  jjjg  .^i  ("i^e  Selfions,  ivas  granted  to  'T.  S.  hy  a  Pnvy  Seal ;  and  the  C.^iellion 
b^'Nam-  of  ^^  ''^J  Whether  the  Court  of  Exchequer  could  compound  thofe  Foneitures 
lllitehili,  V.  by  Virtue  of  a  Privy  Seal  granted  to  them  before  that  to  T.  S.  or  whe- 
thc  Jiicynry-  ther  the  latter  Privy  Seal  was  not  a  Re\ocation  of  the  lormer?  But  it 
General,  &z  ^vas  held  cleurlv  by  the  Coutt,  that  they  might,  upon  good  Matter  in 
al.  and  the  ^g^j^y  difchar'ge  "thoie  Debts,  bv  Virtue  of  the  Statute  3?  H.  8.  cap.  39. 
riade  by  the  Hard.  334.  Mich.  15  Car.  2.  in  the  Exchequer.  Mrs.  Alhe  s  Cale. 
Court  was 
confirmed 


Sec  (F.  b.)  (G.  b.)     King.    Seals.     Stgmt. 

Sec  f F  b  ^  I*  nP  ^>  ^  ^'^'^"ant  of  t!)C  IKm,  under  his  Privy  Signet,  f^  nOt  fUfn= 
PI  ,  __ii        j[_     Cieut  to  iifue  his  Trealure.     CO*  lU  CJilfl  Of -Ot^vw.  92. 

Kep.  92    a. 

Hill.  4  Jac.  S  C.  and  fays,  that  this  appears  Hy  a  Judgment  in  the  Exchequer,  in  *  ^Ctilisn's  Cafe. 
Hill,  r  TE  4  Rot.  14.  in'dorfo,  where  I'uch  a  Warrant,  under  the  Privy  Signet,  to  ifluc  the  Trcafure 
of  tlie  King,  was  difallow'd.  *  S.  C.  cited  4  Inft.  116.  as  Hill.  6.  £.  4. 

Sec  Ne  exeat      2*  '^\^^  Pri^v  Signet  10  fUffiCtCnt  to  inhibit  a  Man  to  go  over  the  Sea. 

Rcgnutn.^B)  jf ♦  iI5*   85*  S* 

I .  S.  C. 

cited  z  Rer.  17.  b.  Mich.  zS  &  29  Elir..  in  Lane's  Call-. S.  C.  cited  11  Rep.  92.  a. The  Law 

in  fome  Cafes  takcth  Notice  of  the  Shnet ;  for  a  Ne  exeat  Re?num  may  be  by  the  King's  Writ  under  the 

Great  Seal,  or  by  Commandment  under  the  Privy  Seal,  or  under  the  Signet ;  for  in  this  Cafe  the  Sub- 
jeft  ought  to  take  Notice  as  well  of  the  Privy  Seal  and  Signet,  as  of  the  Great  Seal ;  for  this  is  but  a 
Signification  of  the  King's  Commandment-,  and  nothing  paffeth  from  him.  But  a  Warrant  under  the  Privy 
Signet  to  i£'ue  any  Treafure  is  not  fuflEcient,  but  there  it  ought  to  be  either  under  the  Great  or  Privy  Seat. 

^      P  ,  ,        3.3  Difcharge  of  a  Debt  due  to  the  King  UnJJCr  tIjC  Privy  Signet  IjS 

PiV        not  fuffictenn  i(£*4»  ei:  parte  Eememlu  Domtiu  Kcgmx  Eot» 

14*  Co*  2^  Lane  17.  b. 
4  Inft.  55.         4.  II  it.  2.  cap.  10.  7'he  King's  Signet,  or  Privy  Seal^pall  tiot  be  fent  in 
Prejudice  of  the  Realm,  or  Difiurhance  of  the  Law. 

ML  tiers  Pa  ^  ^7  ^  ^'  ^^'  "^"'^  ^"^  '"  ™'^^'  Manner  the  King's  Grants^ 
tents  pafs  by  Writings,  and  Lcafes,  Hoall  pafs  the  Privy  Signet^  the  Privy  Seal,  and  the 
Bill  pgnd  Great  Seal,  and  in  what  'Time  they  pall  pafs  thofe  Seals  j  and  the  Forfeitures 
•aithout  Privy  fgf  upon  the  Clerks  of  the  Privy  Signet  and  Privy  Seal  for  not  doing  their 
'  I'nxh^b-'  '^"^y '  "^'''^  what  Fees  they  pall  take  for  thofe  Writings,  and  what  Fees  (hall 
fcribed  Per  ip-  he  paid  to  any  Perfon  for  the  fame,  and  how  and  where  fuch  Writings  pall 
fum  Regem,  Come  to  the  Great  Seal,  with  an  immediate  Warrant,  and  not  pafs  the  Signet 
(and  then  the  Qy  Prfi^y  Seal,  and  what  Fees  pall  be  then  paid  therefore,  and  how  and  under 
^  mams"with  ^^^'  '^^'^^^  ^^^  King's  Leafes,  Grants,  and  Writings  of  Lands,  or  Offices  of 
the  Chancel--  ^^^  County  Palatine  or  Dutchy  of  Lancafter  pall  pafs  j  and  what  Grants, 
lor  for  his  Leafes,  or  Writings  for  the  King  may  be  made  without  his  Warrants,  and 
Warrant)     divers  Articles  a:  large  concerning  thefe  Matters.      For  thefe  fee  the  Statute 

Ji^n'd,  and  by 

Privv  Seal  al/o,  then  the  Privy  Seal  remairs  with  the  Lord  Chancellor,  and  the  Rill  fign'tl  remains  with 
the  Clerks  of  the  Signet,  and   the    Lord   Privy  Seal  has  dn  Extract  thereof  for  him  to  ir.ake  the  Privv 

.Seal 


Prerogati\'c  of  th^  King.  "/y 


SciI  by,  and  then  the  Letters  Patents  arc  fuhfcribcd  Per  breve  tie  privato  Jit^ith  ;  and  if  the  Words,  v'u: 
(Autlioritate  Farliamcnti)  be  added,  then  it  pafiesaccordinrj  to  the  Act  of  27  H.  S.  cap.  n.  And  when 
the  Khm  ft,37is  the  falent  hhvfelf  hi  tie  upper  Part,  and  the  S/ga.itiire  and  the  Grand  Seal  ,^a  together,  thc'.i 
it  is  iublcrib'd  Per  ipfiini  Regei/i  with  his  own  proper  Hand.  And  when  it  is  m.ide  by  julhority  and  Con- 
tent of  Parliament,  '.hen  it  is  lubfcrio'ii  Per  i;f,i>ii  Regent  el  totum  Cjiuilnim  in  Parliamento,  or  to  I'ucli 
Erfecir.  S  Rep.  iS.  b.  19.  a.  Hill.  5  Jac.  in  a  Notcof  the  Reporter,  in  the  Prince's  Cafe. 

6.  At  the  making  of  the  Statute  of  28  E.  i.  cap.  6.  the  King  hjd  ano- 
ther Seal,  and  that  is  called  Signettum,  his  Signet.  This  Seal  is  ever  i/f 
the  Cnjlvdy  of  the  Principal  Sccrctury.  And  there  be  four  Ckrks  of  the 
Signet,  called  Clerici  Stgactti  attending  on  him.  The  Reafon  wherelbrc 
it  is  in  the  Secretary's  Cultody,  iy,  lor  that  the  King  s  private  Letters  are 

Jigned  theriixiith.  Alio  the  Duty  of  the  Clerk  of  the  Signet  is  to  write  out 
fitch  Grants  or  Letters  Pacenta  as  pafs  iy  BtU Jigned  (that  is,  a  Bill  fuper- 
fcriied  zvith  ?^f  Signature,  or  Sign  Manual,  or  Koyal  Hand  of  the  King) 
to  the  Privy  Seal.,  which  Bill  being  tranfcribed  and  lealed  with  the  Sig- 
net IS  a  Warrant  to  the  Privy  Seal.,  and  the  Privy  Seal  is  a  Warrant  to  the 
Great  Seal.  Such  was  the  \\'ifdum  of  prudent  Antiquity,  that  whatfo- 
ever  Ihould  pais  the  Great  Seal  Ihould  come  through  f)  many  Hands,  to 
the  end,  that  nothing  jLoald pafs  that  Great  Seal,  that  is  lb  highly  eiteem- 
ed  and  accounted  ot  in  Law,  that  zvas  againjl  Law,  or  inconvenient ;  or 
that  any  thing  lliould  pais  from  the  King  any  ways,  which  he  intended 
not,  l/y  undac  OT  fitrrepiitioiis  Means.     2lnl!:.  SSSy  SS^,  cap.  6. 

7.  hn  ylccountant,  who  might  have  Vik&nihtBcne/jt  of  a  general  Par- 
don, had,  within  the  Time  limited  by  the  Aft,  and  bfore  Notice  of  the 
Att,  accounted  for  700  I.  and  given  Bond  to  pay  it.  He,  by  EnsliiJi  Bill 
pray'd  Relief,  his  Account  being  pardoned  by  the  Act  of  Lrdemnitv. 
Afterwards  he  obtained  a  Warrant  from  the  King  under  the  Privy  Si-rmt 
for  a  Decree  hy  Con jejjion  ^  but  the  Court  would  not  allow  of  it  uulels  it 
were  under  the  Privy  Seal  &c.  Hard.  204  Mich.  13  Car.  2.  in  the  Exche- 
quer.    Savory  v.  the  Attorney-General. 

8.  In  an  Info-rmaiion  againft  B.  jor  Extortion,  an  IlTue  was  joined  j  v.rA 
the  Day  that  the  Jury  were  returned,  the  King  fent  a  Writing  under 
his  Sign  Manual  to  Sir  Tho.  Fanlliaw,  Clerk  ot  the  Crown,  to  enter  a 
G'/yi'/- of  Proiecution.  And  Palmer,  Attorney  General  ailirmed,  That  the 
King  might  Itay  Proceedings  i  yet  notwithltanding,  the  Court  proceeded 
to  fvvear  the  Jury,  and  laid.  They  were  not  to  delay  for  the  Great  or 
Little  Seal ;  whereupon  the  Attorney  entered  a.  Noli  profequi.  Vent.  33. 
Trin.  21  Car.  2.  B.  R.     Tne  King  v.  Benlbn. 

9.  King  Ch.  I.  granted  to  P.  an  Olfice  Durante  hencplacito.  King  Ch.  2. 
fends  his  Privy  Signet  to  the  Lord-Trealurer  to  confirm  P.  in  this 
OiTiceltwas  agreed  on  all  Hands,  that  the  King's  Privy  Signet  docs  but 
only  intimate  the  King's  Aiind,  hut  can  transjer  no  IntereJK  Freem.  Rep. 
7 1  Hill   1672.  in  Cane.  King  v.  Folter. 

10.  The  Attorney  General  laid^  That  he  never  fiw  any  Sign  Manual 
but  what  wascounteriign'd  by  the  Secretary  of  State,  or  the  Lords  of  the 
Treafury;  but  that  he  had  feen  ieveral  not  lealed  with  the  Signet  or 
Privy  Seal,  and  thathehad  obferved  this  Diiference,  viz.  That  a'Z-'D-^  the 
the  Sign  Manual  was  only  a  DireChon  or  Commiliion  to  do  a  farther  Act,  as 
to  make  out  Letters  Patents,  there  it  is  only  counter/ign'd,  but  not  iealed. 
But  -where  it  is  to  be  the  Principal  Ati  itjelf,  there  it  is  to  be  both  fealcd 
and  counterfigncd.  9  Mod.  54.  Trin.  9  Geo.  in  Cane,  in  the  Cafe  of  \'ernou 
V.  Benfon. 


U  CG.  I 


78 


Prerogative  of  the  King". 


(G.  b.  2.)  Grants  of  the  King.     Good  or   void.     In  what 

Caies    in    general. 

I.  '  I  ^  H  E  Queftioii  being  upon  a  Grant  of  the  King:  It  was  inllfted, 
i  that  the  King's  Grant  Ihall  be  void  in  thefe  tbllowing  Cafes,  ift, 
Where  he  is  mijinjorra'd  in  his  Grant,  as  i  Rep.  52.  2dlv,  Mifrerital 
fliall  avoid  it.  As  Mo.  318.  Hob.  224.  243.  3dly,  If  the  King  be  deceived 
in  Matter  of  Fa^  or  A'fatterof  Laiv,  it  is  void.  As  10  Rep.  112.  i  Rep. 
46.  4thly,  Want  of  Form  will  avoid  the  King's  Grant.  As  Hob.  243.  323. 
I  Rep.  50.  D.  124.  Jthly,  W^hen  the  'Thing  is  in  hitn,  or  comes  to  him  m 
atiother  Manner  than  he  fiippofes.  As  4  Rep.  34.  i  Roll.  192.  Mo.  888. 
Hob.  170.  I  Rep.  49.  2  Rep.  33.  11  Rep.  90.  2R0II.  186.  Hob.  323. 
On  the  other  hand  it  was  argued,that  the  King's  Grant  Ihall  be  good ^  ilt, 
If  there  be  an  Original  Certainty,  altho'  there  bea  Miltake  after.  As  aCro. 
34.48.  Yelv.  42.  3  Le.  152.  i  And.  148.  29  E.  3.  7.  D.  83.  Godb.  423. 
10  Rep.  no.  10  H.  4.  2.  zdly,  There  is  a  Difference  when  the  yl-Zz/yv^/^^ 
relates  to  the  litle  of  the  King,  and  when  it  is  hat  a  Denomination  of  the 
Thing.  As  9  H.  6.  28.  8  H.  7.  3.  10  Rep.  no,  21  E.  4.  49.  3  H.  7.  6. 
38  H.  6.  31.  9  E.  4.  II,  12.  3dly,  The  King's  Grant  ihail  be  co-njirued 
liberally  for  his  Honnnr.  As  Statute  18.  E.  i.  6  Rep  6.  i  Rep.  43. 
Freem.  Rep.  172.   Trin.  1674.  C.  B.  in  the  Caie  of  the  Kingv.  Clarke. 

2.  A  Grant  to  an  Alien  by  the  King,  or  to  a  A^an  oiitla'-jued,  or  to  a 
Vtll  which  is  not  incorporated^  are  void.  And  the  fame  Zaw  to  a  Body  which 
is  not  incorporated.  Br.  Patents,  pi.  44-  cites  22  H.  7.  13  per  Kebie. 


(G.  b.  3.)  Good.    In  refpe6i:  of  the  Matter  orMcvmer. 

I.  II  i?.  2.  8.     T7*Nacl:s,  That  all  Annuities,  and  other  Things  given  or 

I*  J  granted  by  the  King,  his  Father  or  Grandfather,  with 

thisClaiife,  .&jiottjqne  projlatufiio  alitcr duxerinms  ordinandiun,pall  be  void^ 

if  other  Things  have  been  af'terzvcrds  accepted  by  the  Grantees  thereof. 

The  IMif-  2.   18  //.  6.  cap.  I.  Enacts  that  every  Warrant  hereafter  fent  by  the  King, 

chief  which  ^j.  ^^j  pj^irs  to  the  Chancellor  of  England  for  the  Time  being,  the  Day  of  the 

wasatthe      Delivery  of  the  fame  to  the  Chancellor  jhall  be  entered  of  Record  in   the 

Law  was  in   Chancery,     (i)  And  the  Chancellor  do  catifc  Letters  Patents  to  be  made  ttpon 

the  Ante-      the  fame  Warrants,  bearing  Date  the  Day  of  the  f aid  Delivery  in  the  Chan- 

dating  of       ccry,andnot  before  in  any  -a^ifc.  (.\.)And  if  any  Letters  Patents  be  from  hcnce- 

Lettei-s  Pa-    ,  .;^^^  ^^^^^^^  contrary,  they  pall  be  holden  as  void,  fruftrate,  and  none. 

came  to  the  Chancellor  to  make  the  Letters  Patetits,  as  the  Preamble  of  the  Aft  fhews.  And  becaufe 
no  Charter  of  the  King  flioald  bear  Date  before  the  Time  of  the  Delivery  of  the  Warrant,  there- 
fore this  Aft  was  made,  which  remedies  the  faid  Mifchiefin  making  tlie  Patent  void,  which  varies 
from  the  Day  nf  the  Warrant  enter'd,  that  is  to  fay,  in  which  it  bore  Date  before  the  Dayof  tlie  Entry 
of  the  Warrant  received.  But  the  jullices  faid,  they  were  refolved  upon  two  Points  touching  tiiisAft: 
I  ft  That  the  Patent  is  o-ood,  it'  ro  V^'arrant  be  made  or  fent ;  for  tlie  Great  Seal,  without  other  Cir- 
cumftances,  is  funicient^to  the  Party  to  whom  the  Patent  is  made,  and  the  Warrant  is  the  Difcharge 
of  the  Chancellor;  for  thereby  he  knows  the  Will  of  the  King,  idly,  That  if  Patent  bears  Date 
after  the  Day  of  the  Delivery  of  the  Warrant,  the  Patent  in  fucb  Cife  fnall  be  good,  in  as  much  as 
it  is  out  of  the  Intent  of  the  Klakers  of  the  Aft  ;  for  no  Mifchiefin  fuch  Cafe  was  to  the  King,  or  to  any 
other  which  needs  any  Reformation,  but  the  Mifchief  wa.s  in  the  Dating  of  tiie  Patent  before  the  Deli- 
very of  the  Warrant,  as  before  is  fhcwn.  PI.  C.491.  b.  492.  a.  Mich.  iS,  &  19  Eli/,.  Ludford  v.Gretton. 
By  tiiis  Statute  the  Letters  Patents  bearing  Date  another  Day  than  the  Day  of  the  Entry  of  the 
Warrant  (where  there  is  a  Warrant)  is  good  and  not  otherwife.  And  if  there  is  a  Warrant,  and  the 
Day  of  the  Delivery  thereof  is  enter'd,  and  the  Patent  has  no  *  Day  of  the  Date,  it  is  good,  and  out  of 
the  Words  and  Intent  of  the  Aft,  and  refts  at  tlie  Common  Law.  And  the  Letters  Patents  by  the 
Common  Law  were  good,  notwithftanding  they  had  no  Day  of  the  D.ate,  and  now  are,  notwithftand- 
ing  that  they  have  in  them  no  Place  of  the  Date;  Per  Brown,  quod  Dier  conL-eiTit.  PLC  2;i.  4  Elu. 
in'thc  Cafe  of  Willion  v.  Lord  Barkley. *  S.  P.  20.  H.  7.  S. 

3.  If  the  King  grants   Coniifance  of  Pleas  to  one  N.  and  does  not  fay 

he'ure  zvbom  it  pall  be  held,  the  Grant  is  void;  lor  the  Grantee  cannot 

"^  make 


Prerogative  of  the  King.  79 


make  a  Judge;   But  if  he  had  Court  before^  there  the  Grant  is  good.  Br. 
Patents,  pi.  44.  cites  2  H.  7.  13.  per  Kchle. 

4.  It'  the  ]L\xig  grants  Ward  during  the  Nonage,  and  after  fpecial  Livery 
is  [tied  ^  this  is  void,  and  the  Grant  good.  Contra,  ivhere  the  Grant  is,  Js 
long  as  it  pall  happen  to  he  in  our  Hands,  there  a  fpecial  Livery  made 
within  Age,  Ihall  avoid  the  Grant.  £r.  Patents  PJ.  47.  cites  3  H.  7.  3. 
&  8  H.  4.""  Accordingly, 

<.  If  the  King  gi\es  Land  to  A.  and  his  Heirs  Afaks^  this  Patent  is  ^«'  tlie 
voidi  for  it"A.  has  only  a  Daughter,  and  dies,  and  this  Daughter  has  a  '^r  i^' . 
Son,  the  Fee  lliould  be  in  Abeyance  ;  for  the  Daughter  is  the  Heir;  and  ,^"j°„,J'/js 
if  the  Daughter  dies,  her  Son  Ihould  have  the  Fee:  But  tlie  L-jlw  v,'\[\  Hch-s  Habe'n. 
not  aWow  inch  cea/ing  and  reviving  ot  a  Freehold.  The  Parliament  may '^'""  to  him 
create  fuchan  Eltate,  but  it  can  be  done  no  otherwile.  By  all  the  Judges  ^."'^  k"  -^J- 
of  England.  Jenk.  199.  PL  16.  cites  18  H.  8.  -^S  Parent, 

and  palles 

the  Fee  Simple.  Jenk.  285. PI.  14.- •  Where  the  King's  Patent  creates  a  nenv  Eflate,  of  ivhkh  the 

Law  dees  7:ot  take  Cotinf.vire,  as  where  the  King  gives  Land  to  yJ.  and  his  Heirs  AJat's,  or  gives  Land  to 
his  e'ideji  Son,  &' tpjiiii  i^  hareduiit  Jitoriim  Rertiiii  JnglU  fliis 'priniogenitis  in  regno  ^nehmm  hareditarit 
fuccejjuris.    Thelel-'atents  are  void.  Jenk   504.  cites  iS  H.  8. 

6.  Letters  Patents  are  good  in  the  following  Cafes,  that  is  to  fav,Where 
no  U'arrantis  made ;  And  wheje  Warrant  is  made  and  delivered,  and  no 
Day  of  the  Deli-very  entered  j  And  zvherc  Day  is  entered,  and  the  Letters 
Patents  bear  Date  after  the  Day  entered.  Refolved.  PI.  C.  492.  Mich. 
18  &  19  Eliz.  in  the  Caleot  Ludford  v.  Gretton. 

7.  The  King  may  grant  a  Right  of  Entry  and  aReal  AcJion  ;  but  fuch  -  Le.  iqS.  in 
Grant  muft  be  conceived  in  fpecial  NV^ords,  letting  forth  how  the  Right  an  Anony- 
of  Entry  is.  Le.  2i.Trin.  26£liz;  in  the  Duke  of  Northumberland's,  alias  mous  Ca'.e; 
Doughty's  Cafe. 

8.  The  King,  feized  of  a  Manor  in  Right  of  his  Crown,  did  by  his 
Steward  grant  Copj'/nold  Lands,  Parcel  of  the  iaid  Manor  in  Fee,  and' af- 
terwards made  a  Leafe  of  the  lame  Lands  under  the  Exchequer  Seal  for 
fjuenty-one  T'ears  &c.  adjudged,  that  tho'  no  Grants  of  the  King  are  avail- 
able but  under  the  Great  Seal  yet  this  Leafe,  under  the  Exchequer  Seal, 
was  good  by  the  common  Ufagc  of  that  Court,  though  not  particularly 
alleged;  for  the  Courfe  of  every  Court  is  as  a  Law,  of  which  the  Com- 
mon Law  takes  notice,  without  alleging  it  in  Pleadings.  2  Rep.  16.  Mich. 
28  &  29  Eliz.  C.  B.  Lane's  Cale. 

9.  25  Eliz  3.  Enafts,  That  all  Letter's  Patents  made  byH.  ^.fuice  the  i,th  of 
the  fjuenty-fifth  J'ear  of  his  Reign  for  the  Foundation  of  any  Dean  or  Chap~ 
ter,  or  College,  pall  be  adjudged' Good. 

The  Right  of  all  others,  (except  of  Priors,  Abbots  ^c.  is  fjVL'd.) 

All  Grants  made  bv  the  ^iicen  to  others  fince  the  faid  Time,  as  alfo  all  others 
thatpould  be  made  (by  Force  of  a  Connniffion  then  on  Foot)  bejore  the  End'  if 
this  Seffion,  or  ijuithin  one  Tear  after  Jhafl  be  good. 

This  Aii  Jhall  not  extend  to  Letters  Patents  of  Offices,  nor  of  Concealments^- 
except  fuch  Concealments  only  as  are  fold  by  Conim'ifjioners. 

Neither  pall  this  Ait  extend  to  make  good  Letters  Patents  heretofore  adjudged 

void  by  any  Court  of  Record  at  We/lminfier,  orbyAcJ  of  Parliament  i  ncitha' 

yet  thofe  of  Monopolies  for  Toleration   of   any  Offence  prohibited  by  any  penal 

Law,  nor  of  Lands  where  there  is  an  Epate-tail  in  the .^tieen,  tinlefs  fuch 

F.fiate  be  duly  recited. 

Here  alfo  the  Right  of  others  is  failed. 

10.  King  Edward  2.  having  granted  the  Manor  and  Caftle  of  Skipton  Lane  ;9.- 
upon  Craven  to  Robert   Clifford  in  Tail,   H.  6.  granted  to  Thomas  Lord  ^-  *■- 
Clifford  (who  was  Heir  of  the  Body  ot  the  faid  Robert^    Rcver/ionem- 
C.-'Jlri  i3  Manerii  prxd.  &c.  Nee  non  Cap  rum  S  Manerimn  pr^ditl^um.    It 
was  held,  that  admitting  the  Grant  in  Tail  Ihould  be  void,    vet  the 
Callle  and  Manor  iLould  pafs  to  Thomas  Lord  Cliflbrd  in  Fee  in  Polief- 

lion. 


8o  Prerogative  of  the  King. 

lion,  becaufe  the  Intent  ol  the  King  was  to  pafs  it,  whether  in  PofTeffion 
Tu  w    ,    orReverhon.      8  Rep.  i66.  Mich.  7  Jac.  Earl  ot  Cumberland's  Cafe 
SL°t.       '.'„^'  V  '■^^°^''^iby  Hubbard,  TanHcld,  Altham,  Winch,  Nichols 
rUnUvcM-  and  Haughton,  that  A  (;///,w//.f  was  a  good  Word  of  Grant,  as  Figot  was 
ficienttoa-  oi  Opinion,  in  21  E.  4.   12  Rep.  120.    Pafch.  12  Jac.    in  Dungannon's 


mount  to  a 
Grunt  ;  and 


t' J"?r:"  ^T-."!ll  y^^::^^^y"^.^!;-'^'^''^^'  ^^-S  things  contingent,  6c  dc  fururo ;  ad- 


judged.     S  Rep.  ;  3.  b.  in  the  Lord  StatTord'.s  Ca!b. 


12    The  King's  Patent  may  be  zvithorit  Date ;  for  he  may  refort  to  the 
Inrolment  and  Privy  Seal,  and  fo  help  it  ;  but   in  fuch  Cafe,  if  he  fur- 
mileataJle  Date,  the  lame  makes  the  Patent  void.     Arg.   Gbdb    416 
Tnn  21  Jar.  in  Cafe  oi  Lord  Zouch  v.  iMoor,  cites  21  £.4    47  Ind 
20  H.  7.  7.  8.  '  -^   '*:>■  '""■' 

13.  A  Grant  o^jiRein-charge  out  of  the  King's  Manor,  -^ith  a  Clanfc  of 
jJ'Jf/f,  IS  a  void  Grant  i  for  the  King  cannot  be  fued,  nor  can  a'Di- 
ftrels  be  taken  upon  Land  in  his  Polfelfion.     Jenk.  112    pi   18 

TiiT?.  n  ',f-,^^  the_  King  grants  an  ^;/;;////j',  without  faymg  by  whofe  Hands  it 
Ihall  be  received,  it  is  void.      |enk.  208.  pi.  41. 

Bui  where.         16    A  Grant  of  a  Wardjhip  ^laindiu  in  Wanibus  Noftris  &c.  is  aood 

i';r4- -r^  i"  1  '^'J-'f'r  '^  '^''^'^'■^'"- .  ^^  "^:  ^^^  ^'-J'^-  '/  ^-"^^  ^i  -  ^-/-  -?- 

Fee  ir  fo.  ^^"-^^  j«  Trcfpa/s  or  an y  perfonal  Attion.  So  of  Lands  which  a  Felon  at- 
gramiit  tainted  has  in  Right  oj  his  Wife  ;  for  thefe  are  only  Chattels  in  the  Kino- 
Lije,  in  ,iny   Jenk.  246.  pi.  35-  °" 


La>.ii,   and 


C  'f  ■^'^"-  ■"' '"  -y ''"'■''""  "f"''/  ^°''^  contingerit,  it  is  a  void  Grant ;    for  fuch  a  Grant  was  never 
heard  of,  and  it  is  not  determinable  by  any  Collateral  Means.     Jenk.  246.  pi,  3  5.  "^  "^  ^  ^^  never 

17.  A  Patent  o^  Lands  in  general,  with  a  Rellriftion  to  a  rennre,  or 
O-anpation,  or  PcfeJJlon,  which  isfalfe,  is  a  void   Patent ;  otherwile  of 
a  Patent  ot  the  iManor  ol  Dale,  or  any  certain  Thing,  a  lalfe  Addition 
does  not  vitiate  the  Patent  in  this  Cale  ;  for  the  Addition  is  Siirplnfa^e 
Jenk.  304.  pi.  77.  i^  J  <.  ' 


(G.  b.  4)     Grant.    Good  h  Part^    and  void  in  Part. 

I.  T  F  the  King  has  two  Manors,  one  for  Life,  the  ether  in  Fee,  and  the 
A.  ^^ng  grants  theje  two  Manors  to  J.  Jor  Life,  and  dies,  the  Grant 
remains  good,  as  to  the  Manor  in  Fee.  Jenk  209  pi  41 
•  ^'  ^/'t'^'l  vazyht  repealed  \n?art,  but  this  ihallbe  only  ;V;  CA-r///".. 
^ndependait.  Per  Hale  Ch.  B.  Raym.  177.  Pafch.  21  Car.  I  B.  R.  in 
Sacjcvill  College's  Cafe,  cites  Fitzh.  Petition  19 

v^^^'f^'u^  ^'f'^/,  Mr/zor^WM;/..,  and  withal  grants  that  the 
Vendee  fiall  have  the  foe  vending  of  Allom,  referring  out  of  the  Premiljes 
1 0000/.  a  Tear  to  himjelf,  and  1640  /.  a  Tear  to  the  Lord  Mihrave      Th« 
Queibon  was.  Whether  this  Grant,  being  void  for  Part    fviz  'for  the 
fole  vending  of  Allom)  ihall  be  void  for  the  Reft  ?     It  vvas  held     that 
had  It  been  ,n  the  Cale  ol  a  common  Perfon,  it  might  be  good  for  Pare 
and  void  for  Part,  altho'  the  Refervation  was  intire.     But  it  was  ur'ed 
here    that  the  King  is  deceived,  it  being  plain  that  he  intended  to  gr'ant 
the  fole  Vending  of  Allom,  which  he  could  not  do.     In  anfwer  whSe?o 
a  Difference  was  taken,  where  the  King  is  miflaken  in  Matter  of  fWf 
there  his  Grant  ftall  be  void,  but  not  u^ere  he  nii/lakes  the  L^w     and 
cited  6  Rep.  55.  lOtS  CDanQOIg'^  Car^     But  the  Court  feen^ed  to  in- 
cline, that  the  Grant  was  void,  it  appearing  upon  the  Face  thereof  that 
th.e  King  was  aeceived  in  ttc  -ery  SiHance  thereoi;  .nd  the  Rent  being 


,ea 


Prerogative  of  the  Kins".  8 1 


/c,*vivv,    yji.     Lii^    xvx.j^ 


referved  out  of  the  whole.    Scd  Curia  adviflire  vulc.      2  P'reem.  Rep.  ly. 
pi.  15.  Hill.  1676.   Lord  Mulgrave  v.  Sir  J.  Mounfon. 


(H.  b.)     Office.      Grant.    lii  what  Cafes  a  Grm^l;  fhall  be  ^Ji^^j 
good  be/ore  Ofjkc,     1 8  //.  6.  cvr/^.  6.  •''['^^<^^-  '■"•>> 

I.  T  JF  tlje  King  leafes  Land  lor  Years  tEfCtUiltn;  KCllt  tO  lie  patH  at  tljC  l^'^c  ^Y--: 

1  iiecnpt  aftlje  €,tc(jEiiuer,  or  ta  tljc  Daiiu  oftijc  Uccciucr,  ifrijc  pj^^^r"" 

JLCUtE  tiue.'.  not  pav  the  Kent  at  the  Da\-,  the  *  Leale  Ihall  be  vo.d,  bP  kin'^Philio 

ttJijtcij  iji0  €ftate  t'cj  Betennuict!*   Cljo'  ft  Hoes  not  appear  of  Kccoro  and  ().ieen* 
tijct  iljc  C-ftate  10  BctcniuncD,  tiecaurc  it  nui)' be  tijac  Ijc  Ijas pam  tije  f^^y  '-^^^^ 
l\env  :a  tijc  £leccwer  in  tye  Country,  vet  tlje  Hmg  map  scant  tijc  ,12^^1"' 
LanD  otier  betorc  anv  ©iYjce  i^unn  rtuucuf*  ®,  32*  33*  ^\-  "B.  IK,  Rent  afthe 
betoieen  ®ic iWo; /^  ^'^'/i.-fe  aiiD  Thngmonou  aoiiiUiieo,  Contra s^*  2  3ia/i3.  b^eaib  of  the 

Aniiu:';cia- 
tion,  and  St.  Michael,  vith  aProvifo,  that  upon  Non-payment  within  40  Days  of  either  of  the  Feafts, 
the  Leafe  lliould  ceafe,  and  be  void.  In  9  Elii.  the  Rent  was  not  paid  at  Michaelmas,  nor  within  40 
Days  after  ;  but  afterward-s  the  Queen '.s  Receiver  received  it,  and  made  an  Acquittance  as  if  it  had  been 
paid  at  the  Day,  and  received  the  Rent  afterwards  every  Year  until  ;o  Elii  and  made  Acquittances  of 
It.  ;o  Elir.  the  Queen  (granted  this  Land  in  P'ee  to  Sir  T.  H.  and  afterwards  an  Oifice  found  the 
Non-payment  9  Eliz.  upon  whicii  Sir  T.  H.  entered.  An  I  the  <.^elHon  was,  if  the  Leafe  was  void  or 
not  without  OfSce  r  And  all  the  Barons  agreed,  that  this  Leafe  was  void  immediately  upon  the  Non- 
|)ayment,  and  that  the  Land  is  difcharged  of  this  Contratb  of  the  Term  ;  and  the  Patentee  is  no  longer 
Termor,  nor  (as  Manw  cod  'aid)  a  Tenant  at  Will,  nor  at  Sufferance,  but  only  a  Bailiff  or  Pernor  de 
fon  tort,  aid  then  all  the  Acceptances  after  cannot  make  a  void  Leafe  good.  And  they  llkewile  held, 
that  the  firft  Efiate  ended  as  by  Limitation  ;  and  in  fuch  Cafe  no  Office  is  neceflary  to  intitle  tiie  Qjeen, 
and  that  therefore  the  Patentee  of  the  (>ueen  mij^ht  enter,  as  into  Land  of  which  there  was  no  Leafe. 

Cro.  E.  220.  Hill,  5;  Eli?..  inScacc.  S.C ^Note,  a  Writ  of  Error  was  brought  in  the  Exchequer 

Chamber,  and  Error  afl'igned  in  the   Matter  in   Law  ;  and  after  Argument,    Mich   56  &  3-  Eliz.  the 

Judgment  was  affirm"d.     Ibid S.C.  Poph.  55.  by  Name   of  Finch   v.  Rifclcy. 2  Le.  154  to 

145.  S.  C.  by  Name  of  Sir  Moyle  Finch's  Cafe. 

There  is  a  Difference  betwixt  a  Leafe  for  Years,  referving  Rent  payable  at  the  Receipt  of  the  Ex- 
chequer, with  fuch  Provifbes,  and  when  it  is  payable  to  the  Receiver  or  his  Deputy  ;  (or  in  the  firft 
Cafe  the  Payment  or  Non-payment,  appears  by  Record.  And  therefore  to  prove  the  Non-pavment, 
there  needs  no  Office  ;  but  in  the  laft  Cafe  the  Payment  is  to  be  made  to  the  Receiver  or  his  Deputy, 
and  that  appears  not  of  Record ;  and  therefore  the  Leafe  not  Void  by  the  Non-payment  without  Office. 
Agreed   Cro.  Car.  ico.  Mich.  5  Car.  Stephens  v.  Potter. 

2.  So  if  tIjC  lAing  leafe  LantI  for  2^ear0,  upon  Condition  that  the  S.  C  ci-ed 
Lellee   Ihall    not   do   Wait,   anD    aftCr    tijC  LCfitC    BOCCi    luaff,   tijO  ^V /^^^^ -l- 

tlji0  chatter  of  jforfetturc  uia0  a  Q^attcr  en  l^ais,  pct  tlje  Huin;  \\m  l^loi%^'' 
rjrant  tijc  lano  oucr  Dcfore  anp  ©iTice  founn  of  betiuecn  MoviePin-h 

Hungatc  am  i^M  Thomas  Hcneage,  CitCD  i^t  32,  3  3*    CIl?,   05.  E.  v  Throg- 

morton  ;  but 
he  adisj  that  fotn:  faiy  that  the  Cafi  was  no:  aijuJgsd  but  compou:-.ded. 

3,  W a  ^m  fcc  ^on\  ifted  a  Papiit,  pet  bcfote  tl)e  CoinnirntlTion  ia 
returnen,  tije  Utnij  is  not  fufficicntly  mtitlco  to  tije  Lano  or  qdoods 
to  gtant  tljcm.   \Mi\h  2  Ia>  "B, 

4^  Jf  tije  King  grants  an  Office  of  a  Receiverlliip  to  ].  S.  aUtl  Uiafees'  See  S.  P. 

an  ©rcinancc  in  t!je  Letteroi  liJatent£i,  th^c  tlje  Hece'tDcr  ihouid  enter  ^ued  0^19-. 

into  his  Account,  and  finilh  it  before  Hillary  Term  annually,  iLtid  to  ^^P  j^j;^|.,' ,  ^^ 
pay  the  laft  Money  of  his  J?ebt  ftated  by  the  Auditor  belbre  the  20th  h  8.  Tol)^s 
Day  ot  March  then  next  enfuing,  upon  Pain  of  Forfeiture  and  Lofs  of  Cafe, 

hisOftce ;  nn5  after  tije Ueceilicr  i£i  caff  in  arrear  m  Ijis  account 
before  tU  ^utntor,  anu  does  not  pay  tljc  St5oncp  before  tlje  2otlj  D^v^ 
accufoinn;  to  tlje  Ordinance ;  nnti  tljid  arreav  appears?  bp  Eecoro  m 
tije  Crcijequer.  151)  tljig  Bonpnyuicnt  tije  £Ditice  is  forfeited,  ann 
tlje  lAinn;  map  m-ant  it  oner  before  anp  Scire  ficias  brourjljt  (or  0fficf , 
nsiit  fccni0,  or  ctOtr  Recorti  of  tlje  lorfeitureo  anu  pet  if  no  o?rant 
IJ?  iwntic  to  anotljcr,  ije  cugljt  not  to  be  venio\3cn  imtijout  a  %im 

X  f;^d.l5' 


8*2  Prerogative  of  the  Kin"" 


fc>- 

"  facias brotTffiyfbPtijc t^Ino;,  becaufc it iiToiT^fticc  of  EccorHj  aim 

b})  EccorO  tjE  ousDt  to  be  Difplaceo.  D,  4  €1. 21 1»  29, 

18H.  6.  cap.  6. 

Br.  Office  5,  Jf  a  05illt  he  attainted  of  Treafon,  and   his  Land  fettled  in  the 

devant  &r.    aftual   Policiiion  ot  the  King;,  either  bv  a  f pec ial  Statute,  or  by  33  H. 

I's  H  s"  —  ^-  '-'P-  f'J^  ^^""^5  notUJtttjitautiuio;  ti)c  Statute  of  i8  D.  6.  cap.  6, 
Br  N.c  pi.  map  grant  tijcm  olict  bcfoic  anp  QiTicc  tljcrcof  foimu.  D.  3*  4« 
sir,  2:H.  s.  ii9a\  145*  67. 

6.   If  Villein  of  the  Kpig  pnrchafes  Gcods^  the  Property  is  in  the  King 

without  Seiiurei   contra    of  Lands.     The  Goods   may  be  wafted,  and 

therefore  itieems,  that  Gr.int  of  the  King  of  Goods,  as  here,  is  good 

\sithout  Orfice.  Isr.  Patents,  pi.  83.  cites  35  E.  3. 

*  See  pi.  S.        7.  \\  here  the  King  is  intitkd  to  Land  by  Ward,  he  may  grant  it  over 

below.  before  Otfice,  and  belore  Seilin,  and  he  may    feife  belore  Office  ;  Per 

Gafcoign,  1  hirvvit,  and  Huls,   Jufticcs.  The  Reafon  feems  to  be,  be- 

caule  the  King  has  only  a  Chattle  in  it ;  but  fee  now  the  Statute  *  18  H. 

6.  6.  that  the  Patent  belore  Office  is  void   of  Land.  Br.  Patents,  pi.  49, 

cites   10  H.  4.  3. 

♦AManpui--      8.      1 8  //.  6.  cap.  6.  Enacbs,  that  no  Letters  Patent  pall  he  made  of  any 

cbaf'ed  Lar-d  Lands  itfore  an  Inqiiijition  uj  the  King's  J'ltle  be  found  returned  in  the  Chan~ 

pdOu  'n^   r^rj)' or  Ax(;/-7e(7«(f;-;  *  tf  the  King's  Title  be  not  Jotind  of  Record,  nor  within 

which  was'    ^^'^  Month  after  the  Return,  if  it  be  not  to  them  which  profer  their  'Z'raverfsy 

Pai-rel  of  the  and  if  any  Letters  Patent  Le  made  to  the  contrary  they  Jh all  be  void. 

PoiTc.'l'on.s  of 

the  Duk?  of  Suffolk  attainted  of  Higli  Trcafons,  of  which  Land  purchaicd  no  Office  was  found.  And 
the  (.iu'jilion  wa.";,  Whether  the  Patent  was  void  by  rcafon  of  this  Statute  ?  And  it  leemed  to  feveral, 
that  the  Patent  above  was  good  by  the  Words  (if  the  King's  Title  &c.)  in  as  much  as  the  Ait  of  At- 
tainder is  found  in  the  Chancery  and  £xchei]uer  of  Record.  The  Reporter  adds,  Et  coll  igo  that  the 
Intendment  of  tliis  Statute  is  to  reform  Grants  and  Leafes  to  Farm  made  by  the  (^Ihancellor,  Treal'ur- 
er,  or  other  Officers  of  the  King  of  Tenements  of  Subjefts  found  by  OSce  to  be  the  Title  of  the 
King,  and  leifcd  into  the  Hands  of  the  King  mcfne  between  the  finding  of  Offices  and  the  Return  of 
them,  and  not  to  any  Grants  or  Gifts  in  Fee  (Imple  or  Tail  &c.  D.  145.  b.  pi.  66.  Palch.  3  &  4  P.  &  M. 
Anon. 

Rhodes,  Pirryam,  and  Anderfon  J.  held.  That  this  Statute  did  not  extend  to  the  Grant  of  any  Land 
but  thofe  which  come  to  the  King  by  new  Title,  as  Wardfliip,  Mortmain,  Attainder,  and  the  like, 
in  which  Cafes  the  Mifchiefwas  at  the  ('ommon  Law  in  this,  that  thofc  who  had  Right  could  not 
traverfe  the  Office,  and  have  the  Land  in  Farm,  but  were  prevented  by  Grants  made  before  the  Office 
returned  by  which  the  King  had  dilabled  himfeifto  grant  the  Land  in  Farm  to  him  who  tendered 
Traverfe,  and  no  Man  could  tender  Traverfe  before  the  Office  returned.  I\Io.  209.  Pafch.  27  Elii. 
Knight's  Cafe. 

S.P.  Br.  P^i-  9.  Grant  of  the  King  of  the  Body  of  a  Ward.,  or  of  Goods,  is  good 
tents,  pi.  05.  ^vichout  any  Office  thereof  found  ;  Contra  of  Land  by  the  Statute  of  18 

H.  6.  Br  Patents,  pf  70.  cites  20  E.  4.  11. 
TheQuef-  10.  The  King  granted  to  a  Bipop  Bona  felonttm  de fe  within  a  certain 
tion  in  the  Precinft*  The  Bi/hop  was  attainted  of  Treafon.  A  Leffee  jor  Tears  of 
Exchequer  ^^,^,  £i^^(,p  ii:ifhin  this  PrccinB  before  the  IndiBment  or  Attainder  became 
was  Whc-  /''''''  ^'^  f*^ '  '■'^'^  ^^"Z  '^'^<^  before  this  granted  to  B.  his  Almoner  omnia  bona 
ther  ihc  A\- felonum  de  fe  utter  ihe  {aid  Treafon  committed,  and  before  any  Indict- 
moner  ment  ;  ^ftcr  this  Grant  to  B.  the  Bi/hop  is  inditled  and  attainted.     The 

iliould  have    King  Ihall  have  this  Leafe  i  For  the  King's  Grant   to  B.  before   the  At- 
nol'i  \vA\x.  tainderof  the  Bilhop  was  void  ;  For  the  King  granted    that  which   he 
■was  held  by  had  not.     This  is  a  remote  Pofjibility  in  the  King  which  cannot  be  grant- 
Brook  C.  J.    ed.    Jenk.  210.  pi.  44-  cites  i  Mar.  D.  108. 
of  C.  B. 

Brook  Ch.  Baron  of  the  Ex-chequer,  Portman,  Brown,  Whiddon  Juftices,  Baron  Saxby,  and  Griffin 
Attorney  General,  that  the  Almoner  (hall  not  have  the  Leale,  but  it  fliall  be  in  Order  and  Diftribution 
of  the  Exchequer  inter  Poflcfiiones  Archiepifcopatus,  bccaufc  as  the  Power  to  grant  it  was  not  in  the 
Queen  at  the  time  of  the  Grant,  in  as  much  as  they  were  in  the  Archbifhop  &c.  But  Bromley  Ch.  J. 
S.iunders,  Stamford  Juflices,  Baron  Brown,  James  Dyer,  and  Cordel  the  Solicitor  c  contra  ;  For  the 
King  may  grant  a  Thing  which  is  not  in  him  at  the  time  of  the  Grant,  but  which  mav  come  after- 
wards, As  the  Cuftody  and  Marriage  of  the  Heir  of  his  Tenant,  Or  the  Tcniporaltics  of  a  Bifhop  cum 

acci- 


Prerogative  of  the  King.  8':^ 


accidcrint.  But  of  Efcheat  Cumaccidcrit  negatur  pcnitus  per  Baker,  tamcn  quxrc  indc.  The  Kcportcf 
adds  Kota  It  liad  bc-en  clear  it  the  A  rchbifliop  had  been  attainted  of  tlie  Trealon  at  the  'I'line  of  the 
Grant,  the  Grant  of  the  <^een  had  been  good.  Di  icS.  a.  pi.  29.  the  Billiop  of  Chichcftcr  v. 
Webb. 


(I.  b)    What  Things    fhall  pals   by  General  UA)rds  W\th.\zh)-(^\.c) 
Reference  to  other  Ferjon  or  *  Thing.  c'p-'^c)''^ 

*(L.b) 
I  ♦T  JF  tIjC  K.ing  purchafes  a  Manor  to  which  Franchifes  Real  are  re-  -\  Br.  E\-- 

\_   gardanr,  and  after  gives  the  Manor  Simul  cum  Libertat.   ad  illud  tinguifKmcni 
fpedtant.  aUtJ  DOC0  not  lay,  Simul  cum  Libertat.   ad    illud  lpe6^tant.  atP'-3--^*- 
the  time  that  the  Manor  was  in  the  Hands  ot  the  Feollbr  ot  the  Ivmg, 

tfjc  f  rancljircjs  no  notpar^  bu  tijis  (JSeutiMl  (grant,  bccaurc  tljc  ifrah= 
cIjifeiEiofcommonEisot  inert  aimcicD  to  tijc  Crou)iut43  M,  lo. 
pec  '2Cl)orpc»  43  C*  3.  20,  lu 

2.  But  otfjcrimfc  itljatJ  ton  if  fpeciai  Mention  ijan  been  maQc  m  * 
is  aforeRiio  \\\  tije  Cijarter*    1 43  CiiV*  10.  43  e»  3. 20.  b* 


4:  Br.  Extinguifhment,  pi.  52.  cites  S.  C    For  thev  were  extinft  before,  a.s  it  feems,  and  by  thcfe 
Words  they  pals  as  Appendants  ;  per  Thorpe. Br.  Incident,  pi.  12.  cites  S.  C. 

?♦  If  a*  fcefeiTeti  of  a  S39£tnor,  to  UiljicI)  tlje  rrancljtfejs  of  Maife  There  i,  a 

and  Stray,  or  Tuch  like,  are   appendai.c,  aillJ   tljC  l^ing  purchafes   the  Difference 
Manot  with  the  Appurtenances,  Jl^OlU  tlje  jf VanCijlfeiS  aiT  VeHimtCll  tO  ^7'^'^=" 

t(je  Crduin,  ant  not  appennant  to  tijc  i^^anot  ■,  j?et  it  he  grunt  the  l-'l^^y^ 

Manor  in  \'o  large  and  ample  Manner  as  A.  had  i--,  tljC  jfCunCljirC9  lUlH  Fhiicrcfthe 

pars  as  appurtenant  to  tlje  ^anor*  Co.litt*  121.  tj*  qo^v^a 

other  Things 
which  are  not,  a,';  CataJla  fe'.cmun  &c.  If  fuch  come  again  to  the  King  they  are  merg'd  in  tiie  Crown  ; 
but  it  is  othervvi'e  in  Cafe  of  a  Lfp/,  P,rrk,  U'arreji,  Toll  £vc.  which  were  firft  created  by  the  King.  2 
JVIod.  144.  Hill.  2S  &  29  Car   2.   C.  B.  in  Cale  of  J.imcs  v.  Juhnlbn. 

4»  3f  %  @*  linS  certain  Liberties  appertaining  to  a  Manor,  ailtl  af= 
tet  tlje  JLlliertiegi  are  rcUimcd,  ann  afterUiarO.S  tlje  King  grants  the 
Manor  to  J.  D.  with  general  \\  ords,  tljat  l)C  lljall  IjaDC  toe,  talia,  tanta 
&  eafdem  Libertates  &C.  as  J.  S.  had  (tC.  CiJIE!  fljall  UOt  pafS  tljC  tV- 

bertics  luljicl)  J,  @>.  ban  before  tlje  rvefitniption,  19. 1 1  Car.  15.  E. 
rain  bj)  Jufticc  3ones  to  be  fo  anjuogco. 

5.  If  the  King  grants  all  Laiidsy  Icncuitnts^  and  yld'-jozvfofis  of  Church-  Socf  allthi 
es  which  Wire  thcPnorof  N's.  this  is  a   good  Grant.  Br.  Patents,  pi.  ^""^' '^'"i 

„.,,,  -'  }^  ^  ^^       Tenements 

87.  Cites  32  H.  6.  20,  21.  per  Cur.  a/vr/.«n-^ 

7.  S's  Ibid. 

j'a  if  he  be  pofll-fled  of  a  Ward,  and  grants  all  Lands  and   Tenements,  Advowfims  and  Knights 

VcKwhich  VJtre  J.  h'i,  F,-:ther  of  the  (f'.irii.  Ibid. .ib  of   all   Lands  and   Tenements    Sx.c.  ul.iih 

'acre  J.  P's.  Attainted  of  Fektiy.     Ibid 

6.  The  King, /or  a  great  Sum  of  A:fof;ey,  Bargains  .^rid  Sells  to  A.  the 
Manor  of  Stepne}',  and  the  Alarjb  o[  Stepney  in  Fee,  and  the  King  more- 
over grants,  that  the  faid  Patentee  lluiU  have  the  laid  Manor  and  Marlh 
ejs  amply  as  it  came  into  the  King's  Hands  by  the  Grant  and  Surrender  of  the 
Bijbop  of  London  J  and  in  Truth  the  King  had  not  the  Marlh  Lyfiich  Grant 
end  Surrender,  but  only  the  Manor,  and  had  the  Marjh  from  others.  Ke- 
folved  by  all  the  Judges  of  England,  that  the  Manor  and  Marlli  pafs  well 
by  this  Patent.  The  \\\\dL  Retrrence  in  the  laid  Patent  to  the  i.illiop  of 
London's  Surrender  is  in  the  King's  Covenant,  and  not  in  the  Body  of  the 
Grant  ;  And  therefore  it  does  not  vitiate  the  Patent,  the  firft  Certainty 
in  the  King's  Patent  is  fufficient,  where  the  King  is  not  deceived  in  his 
Grant.  Jenk.  261.  pi.  60.  cites  Trin.  31  Eliz.  Hare's  Cale. 

7.  If 


H 


Prerccative  of  the  Kin2'. 


7.  Il  the  King  grants  over  certain  Lands  "xbich  had  come  to  his  Hands 
Irfore,  and  gTAUis further  to  the  Grantee  ta/cs  Libertates  Privilegia  Ju- 
rifdiitiones  &c.  as  he,  who  was  lajf  fcifed  of  the  Lands  had,  whereas  the 
King  did  not  know  the  Certainty  of  the  Liberties  and  Privileges,  yet  the 
Grant  is  good  enough,  and  the  Patentee  may  inquire  what  Liberties 
and  Privileges  the  other  had  belbre;  and  in  as  much  as  this  Uncertainty 
may  be  reduced  to  a  Certainty  by  Inquiry  or  other  Circumllance  the  Grant 
is  good.  10  Rep.  65.  a.  Hill.  10  Jac.  in  W'hiltlers  Cafe. — Cites  PI.  C. 
12.  b.   in  Fogall'a's  Cale. 

fceCl.b)^-  ' — "   "'      ■ 

o'toCE.c)        (K.  b)  Grants  of  the  Kins;.      [fiords  of  Reference.'] 

andCR.  c)  ^  ^  O  L  7         7  J 

If  an  Abbot  I.  T  JF  tlje  Abbot  of  D.  had  Deodands  ijp  ©mnt  Of  tl)e  Mtg  tU  £1 
wasfeifedot  J^  CCttam  a:>ill,  flUD  flftet  the  Abby  comes  to  the  King  tUItl)  tlje 
IhlThad  POlfCffiOniS  bj)  tljC  S)tatUte  of  DllfOlUtiOtt^,  nnti  the  King  grants 
Waits  and  the  Land  and  Vill  &  liona&:  Catalla  Felonum  1)))  CyptCf^  i©OrO0,  and 
Eftiaycs  ap-  after  makes  a  Grant  tDlti}  QlCitCral  JBOtHS  of  tot,  talia,  eadem  &  hujul^ 
pendant  to     j^qJ^  Franchefia,  Libertates  &c.  which  the  Abbot  fjall  III  tl)Z  faiO  LnilU 

la  feionuS  ^"1'  ^^^^*  '^^^^  pntetitcc  fljaU  ija^e.  Up  tijolc  sencral  i©crU0,  Dco^ 
utbgatoium  Danti0  tiiljici)  fljtill  Ijnppen  tljere,  ui  ais  miul)  ass  it  ija0  Ecfcrence  to 
and  the  Ma-  fljc  lHjcrtie^  toljicf)  tljc  abbot  l)ao»  p»  n  Car*  05*  K*  btmmx 

nor  comes  to  j jjg  ^^^^  ^„^  ;/,g  Inhabitants  of  St.  Edmond's  Bury  in  Suffolk.     SOjUHg^ 

Ha'nd/"fnd  ct>  ut  a  €iuo  iJ2>arranto  ano  I3!ea  niaoc  tlicreto* 

he  grants 

over  with  a  tot,  talia  &c.  there  they  pafs,  and  thefecond  Grantee  fhall  have  Waifs  and  Eftrays  asap.> 
pendant  to  the  Manor,  but  not  Catalla  Felonum  &  Utlagatorum,  unlefs  he  has  fpeciil  Grant  of  them 
by  Deed.  Jo.  349.  inltin.de  Waltham. 

Bend. 252.  2,  JftljC  Re£lory  impropriate  of  W.  to  which  an  Advowfon  of  a 

pi.  2-o.S.C,  Vicarage  is  appendant,  comes  to  the  King  bp  CfdjCat  by  Artainder 
pieldinp-^ad  of  J.S.   anO  tljeKing  excerta  Scientia  &  mero  mocu  gtaUtS  tO  IB* 

Jdgcd.— 'mJfcc  all tije poirclTionj5  oftlje  Q5lcbe  aim  '2Cit!)egiof  tlje  Hector^ 
s.  c.  cited  bj)  fpccial  anti  particular  JI^ame0,  ann  gencrallj)  Omnia  Hereditamen- 

10  Rep  65.    j-;j  fua  qutecunque  parcel,  ipeft.  vel  pertin.  dictse  Refloriae  de  W.  (loUt 

Tac^'in  '^  «"  erprcf^  93cntiou  isi  niaoe  of  tljc  Rectorp,  or  of tljc  aobomfou  $c>) 

Whiftler's     adeo  plene  &  in  tarn  amplis  Modo  &  Forma  Qualitate  &  Conditione 

Cafe.. prout  diftus  J.  S.  ea  habuit  &  prout  ad  manus   iplius  Regis  devenerunt 

\}^°\'U    feu  devenire  debuerunt.     Ju  tljt0  Caft,  bp  tljiSS  ^JPtant  auU  tljC  faill 

^-car  2  ©metal  mortifS,  tl)c  atii30U)fon  of  ttje  iDicarage  fijall  paf0,  an5  bw 
The  King  V.  t|)e  fait)  i©orti0  aneo  plcnc  fc*  prout  $c»  $  Cr  gratia  fpcnaii, 
the  Bifhop  certa  ©cientia  $c*  Clje  parfonap  fljall  paf0  alfo>  D*  is,  (£i»  350, 
ofRocheikr^^i^  21, 22,  aUjUOscO;  Jfot  tijc  Ciuccu bj)  Jpotaiicc  Id  not  oc^ 
cciuet!*^ 

3.  If  the  King  has  a  Alanor  byEfcheat  or  by  Piirchafe,  and  grants  the 
Manor  as  entirely  as  J.  N.  held  it,  or  as  it  came  to  his  Hands  by  Efchcat, 
an  Advowfon  Appendant  pafles  without  the  other  Words  i  for  it  llrall 
be  intended,  that  the  King  is  appriz'd  of  his  Rights  per  Thorp  quod 
Curia  Conceffit.     Br.  Patents.  PI.  6.  cites  43  E.  3.  22. 


(L.  b.) 


Prerogative  of  the   King-.  85 


(L.  b.)     What  Things  fliall  pafs  by  general  Words  vvIth^,^?i;j^'^^ho 
Reference  to  other  Thhig.  o&cro 

i.\l\T\:i€B.  tljC  CljaitCr  of  tIjC  l:%inQ'  in  2;encral  Terms  refers  to  The  Cafe 
V  V    a  Cercaintv,  tljI0  COHtain0  ilS  ecpiTflS  e^ClltlOll  ilS   [if]  tljC  ""^^  ^his  yi.., 

Ccrtnmtp  {jan  liccn  crprclTcD  in  tljc  Cljartcr,  tljo'  tijc  Ccitauitp  ta  Xcth  bcL 

lUytCij  tljC  i\efCrcnCC  13  be  nut  oi  Record,  but  lies  in  A\  erment  by  Aiat-^,^,,^  ,^-  ^^ 
ter  en  Pais  or  in  Fail:.     CO.  lo.  IV hi  ft  h\  64.     RCfOll!ClI»  .\L-.nor;  to 

which  an,-/,/- 
za^-fcn  was  afpnt^ant  in  her  Demcfne,  as  of  Fee  in  Right  of  her  Crown,  ^r/inted  the  faid  JLiiior,  with 
the  Appurtenances,  jcr  21  years,  exceplh.g  the  Jdiiotvfou;  and  afterwards  reciting  the  faid  Demile 
and  Exception,  flie  matie  avcthev  Gnwt  to  the  fame  Grantee  [or  another  ^erni  oi  Ye.\ts,  ivith  the  like  Ex- 
ceptio?:.  King  James,  in  Confideration  of  Service,  ex  certa  Scicntia  Sec.  granted  the  Manor  cum  fuis  fu- 
I'ibus  &c  to  G.  H  except  is  cji:£  in  eifiiem  Uteris  patentihiis  exctpinnti)r,  and  mentions  the  Lealc  in  Rcverfion, 
and  the  like  Exception  therein  ;  but  then  follows  this  Claul'e,  cf  ulteriiis  de  nberiori  gratia  nollra  &  ex; 
ccrta  Scientia  &c.  Damus  omnia  et  fmffula 'Tc7:enienta  pridiiio  Manerio  c^aotjuo  niodo  fpeciant.  cT-c.  Et 
ulterius  Damns  &c.  to  the  faid  G.  H.  and  his  Heirs  the  faid  Manor  Ac  c-rtera  omnia  &  fingula  Pr^- 
miila  cum  eorum  Pertinentiis  adeo  plene  &C.  as  the  fame  came  to  him,  and  now  are  in  his  Hands.  And 
it  was  refolv'd  as  here.  And,  idly,  it  was  refolv'd.  That  it  thofc  VS'ords  (adeo  plcne  et  integre)  had 
been  omitted,  then  it  would  not  iiave  pafled  by  the  firfl:  (^laufe,  but  by  the  Addition  of  tlie  lait  Claufe, 
all  the  Parts  of  the  Patent  taking  Elicit  at  one  and  the  fame  Time,  tlie  Advowfon  fhall  pals  append.int. 
And,  5dly,  tho'  the  tirll  Clause  of  the  Grant  refers  to  the  Deniife  in  which  the  Advou  Ton  i.  excepted 
yet  by  the  middle  Claule  all  Ter.ements  6.-c.  pertaining  to  the  faid  Manor  are  granted  ;  and  the  lall 
Chaife  grants  the  Manor  with  the  Appurtenances  &c.  adeo  plene.  ^rhly,  it  was  refolv'd,  without  any 
Difficulty,  thct  the  Exception  fliall  be  extended  only  to  the  Leafcs  recited,  and  not  to  be  any  Exception 
out  of  the  Letters  Patents  of  the  Fee  Simple.  And  Judgment  was  given,  that  the  Advowfon  pals'd. 
10  Rep.  6;.  Hill.  10  Jac.  IFhiJUer'sCaic. —  S.C.  cited  z  Mod.  i.  Hiil'.  26  &  27  Car.  2.  C.  B.  in  Clale  of 
the  King  V.  the  Bifhop  of  Kochefter.  —  ii  C.  cited  2  Mod.  lo-.  Tiin  2S  Car.  2.  in  Scacc.  in  Cafe  of 
jhe  Attorney-General  v.  Sir  Edward  Turner.  —  S.  C.  cited  Kob.  170.  Hill,  i  2  Jac.  Stukcly  v.  Butler. 

2,  CIJC  Prior  of  Clirilkhurch,  i\\  tIjC  COUntp  Of  ©OUtljaUiptOn, 
t«a0  feiz.ed  ot  the  Manor  Of  CljCifiCljUtC!),  and  ot  a  Irec  iMihiiig  in  (jrols 
in  the  Ri\er  of  Avon  in  Chriltchurcli  ^  and  all  this  came  111)  tljC  iDtiTO^ 
illtiOn  of  ^^OUarrCtieSi  in  31  Ip.  8.  to  the  King  ^  nnn  tilC  "King  grants 
the  Manor  Of  Cljl'lftCtjUrCl),  and  the  Scite  ol  the  laid  Priory,  and  all 
Lands,  Tenements,  and  Hereditaments  in  Chrillchurch  afOlxrattJ,  at 
any  Time  appertaining  to  the  faid  Priory;  and  all  Libcrtes,  Privileges, 
free  Warrens,  free  Filhings,  &c.   *  belonging  to  the  faid  AJanor. 

fam  f  ifljcrp  tuljicj)  tijc  prior  Ijati  m  ©rofs  fljall  pals  fap  ttjid  (Srant, 
for  It  uull  pafs  t.j)  tljc  genera!  ilBcrtJfs  of  (aULanti!5,Cchtiricnts,ant3 
Jpcremtamcnt0  at  an\»  Cimc  bcloiiglmx  to  tl)e  fain  l^norp)  tljiB  btmx 
an  Deretiitamcnt  bciongins  to  tijc  i^riorp ;  ano  tijc  laft  l©orti£S,  in 
luljicl)  tlje  free  1  ifijcrp  is  ctprclflp  grantco  imtlj  a  Reitriction  (ap- 
purtenant to  the  laid  Manor)  uuU  not  fcfftaiu  tIjc  firfi  (xcncra!  iBortis, 
but  tlje  laifcljarp  in  arofs  fljall  pafs  bp  it ;  tor  t{)c  tall  ilDortis  lucic 
onip  m  03a)orem  Caiitiianu  C^icij,  1 1  Car*  Id*  H*  between  Lorti 
yh-rin^c/,  of  nardrr,  mXQ  Q.ltim\im  Veil  a  ^  pct  Curiaui.  Ecfo{\3et3 
nnH  RuletJ  accorcinelp  upon  €i3(rience  at  tlje  iDarr.. 

3»  King  Ed.  6    was  feized  in  Fee  of  the  Manor  ol  C.    of  which   a  ,,  _ 
\Vood,  containing  300  Acres,  was  parcel ;  \)t  granted  the  fxid  Wood  in  ^'i.^^p^'g  (, 
Fee,  anti  after  tlie  faiH  Wood  reverted  to  him  as  Efcheat  for  'QTrCafOn,  Mick  4  ' 
aftCrlIJart!0  Queen  Mary  granted  the  faid  Wood  in  Fee,  tljC  Grantee  re-  c:  B.    in 
granted  it  to  Queen  Elizabeth  ^  nUti  afterlUatOj)  Queen  Elizabeth  grant-  ''~'.''  ■^'.">)'-\^ 
ed  the  Manor  &  omnes  Boicos  modo  vel  antehac  cognit.  vel  reputat.  iit  ^'""- *^*-'''^ 
pars  membrum  vel  parccll'  cjufdem  Mancrii  fO  tljC  Catl  Of  iLetCeflCr  ill 

Stz.  Jn  tW  Cafe,  bv  tljofe  «DcrD0  tlje  Wmm  fljall  pafs ;  j" or  tlje 
IBorri  Anteirac  in  calc  of  tljc  t^inn:  map  lucll  Ijabe  Eetrcrpcrt  to  i\% 
Cimc  of  €♦  6*  but  not  ultra  if  tnc  i©orb  Unquam  be  not  aoionf  5  tf\ 
it.  15i\t  \\\  cafe  of  a  Subject,  tf)e  roorti  (anteliac)  luitljout  tijc  r^oru 

llnqnnm  prCCetlCnt    fljall  be  COnftrU'n  quocunque  tempore  pr.eteiico. 

D*  2o»  €!.  3^^2»  antJ  fame  Cafe  rcporten  imt!)  tlje  iDlcatano:.  Co. 

V  ■  "  Cut* 


ac. 


86  Prerogative  of  the  King. 


(£nt.  sSu  atDiitiijeO*  et  Jibiticnuss,  384*  tijc  Rcafoiisj  fljciuit  of 
tijc  jiiDijnicnt. 

4v  Jt"  tl)C  King  grants  the  Manor  of  D.  lUltlj  tlje  S^ppUrtCltaUCCiEi, 
and  all  OtIjCl*  JLanb^,  PaflUVC0,  i©OOt!0,  tt  Hereditamenta,  Ante- 
hac  COgnitn,  UflttUa,  aCCCpta  llCl  Reputata  uc  Membrum  UcJ  parCClfa 
^ancni  pV.ttllCtt,  a  wood  which  is  not  parcel  of  the  Manor  truly,  auH 
III  Emijt,  IClilCCt,  in  fafto  et  Jure,  UyUll  ItOt  paf^,  tfjOiml)  it  ht  VMZtXfO, 

tljut  m  ftiti  ilBooD  aotunc  antea  tint  rciJUtat.  at  patcel'  95ancfii  pte^ 
Dicti;  UJitljout  rapimj,  tljat  it  Ijan  been  rcputeD  j^arccl  Time  out  of 
Mind,  jf  or  99atter  of  Inljerttancc  cannot  tafec  anp  n;ooti  lounua^ 
tion  toitijout  couplmG  ann  anncruuj;  Cniic  of  j3rcrcriptton.  S^icij, 
21,  22  ei  m  ^tacc.  Kot.  302,  aD)utigcti,  quon  Miu  m  tijencta 
entries  380,  luijerc  tbc  Eeafons  of  tije  iutigmciit  are  cntrcD  upon 
Hecorn  ;  tljis  luas  upon  a  Demurrer  betmeen  tijc  Kujg  ana  h/jkr 
ano/r///t/«  Defcnoants. 

5.  anO  in  the  faid  Caie  if  it  Ijatl  bCCU  averr'd,  t!jat  tljC  HDOOtl  M& 

reputeo  J3)arcet  of  tl)C  ?^anor  Time  out  of  Mind  $c»  tljo'  m  Cafe  of 
a  common  J^crfon  Proots  of  iuch  niue  might  be  by  tiulgat  ano  Diffu= 
*oric.[Nof-  cjj,  jf^eputation  of  ^3eoplc  of  tljc  fame  a^ill,  or  *  of  our  or  of  otbec 
t"-^?"  ]  S^anor  ano  9t5anor0,  or  33il!s  aOjoininn;  u*  or  of  tlje  Oootip  of  t!jc 
County  $c.  i'ct  m  Cafe  of  tlje  mm  in  lucij  Wut0  [ajj  to  J  tlje  Woxix 
(EeputO  tije  Ciiiuence  or  proof  fljall  not  be  by  fuclj  iiulijar  ann 
mffuferi  Reputation  of  tlje  i^eoplc;  but  tlje  i3roofs  ought  to  be  bv  fome 
Matter  of  Record  or  Writing,  m  b\>  tljc  erpref0  3:)aUiation  of  it  be=- 
tuieen  tije  }5rutcc  ann  tljc  ©ubiect,  in  tlje  particulars  of  tbc  pur= 
cljafe,  or  w  tljc  ^ur\3eps  ann  X-ool^s  of  Accounts  of  tbc  ^umtors 
ann  Eecei^ers,  l^ailiffs,  ann  fuclj  Officers  ann  $l5ini(lers  aluiaps 
Eutren  ann  anfiueren  in  tljc  ilolis  ann  l^oofes  as  parcel  of  tbc  £0k\-- 
nor ;  otljerttife,  it  is  not  auD  [i)toof  of  tbe  Eeputation  in  cafe  of  djc 
t^ittg.  In  tbe  fain  Cafe  of  21  ann  22  (Qu  bctmcen  tbe  .^neefi,  piam= 
tiff,  ann  /^/tr  ann  n'iiki»,  Defennants*  Ecfolbcn  per  Curiam,  as» 
it  is  entren  upon  tbe  Eecorn  in  tbc  fain  Btm  entries*  38°^ 

K     '7  \)\         6»  jf  tbCre  tUCre  two  ReiStories  and  two  Rectors  in  one  Church,  aitU 
p";'.  S.C.    fO  tUlO  feUerai  annOlUfOnS,  ann  aftCrtUarnS  tbCP  are  feveraJly  appro- 
priated to  one  Religious  Hofpital  as  feveral  Re£tories,  and   at  feveral 
Times,  and  the  Rettories  of  them  appropriated  33  E.  3.  but  always  after 
enjov'd  bP  tbC  fi^Ofpital  as  one  Rectory  appropriate  ;  and  lb  reputed  tO 

U  one  EectorV  *  'tiH  the  Diiibiution  of  tbc  !!)ofpital,  tobicb  came  to 
ihs.  bv  tbc  Statute  of  31  fp^s.  ann  aftcruiaros  it  is  granted  by 

Queen  Elizabeth  by  the  Name  tt  tota  i!Li  Reftoria  noftra  fC*  lUljCrC  ill 

trutb  tbci'  tucre  at  tbc  Commencement  fcijera!  Eectories,  yet  it  IbnH 
be  a  ffoon  (grant,  b\>  rcafon  of  tbc  Ecputatiou  tbat  it  mas  one  Eec= 
torp  fo  long  '€m\t,  Ci3icb»  15  Car*  05.  E*  bctiueen  GoaMk  ann 
Bar/oe,  pct  Curiaiu.  Ecfolljcn  upou  diibcncc  upon  a  Crial  at  tbc 
15ar,  iBljicb  concernen  90t.  staughm,  tbc  33atentee,  for  tbc  EcrtotP 
of  #oreton,  uibicb  luas  parcel  of  tbe  potfeffions  of  tbc  ^pofpitai  of 
%x.  31  bn'S  in  iBariutck* 

7.  King  Jolin  granted  to  the  Corporation  ot  AVaterford  Ctijiumam  vo- 
catam  the  AJtiragede  Omnibus  rebus  Veiialibus  infra  diftam  Civitatem  emp- 
tis  feu  Venditis  adeo  Plene  et  ititegre  ficut  Burgenfes  Villa  de  Rriftol  habc- 
hant  Sec.  And  it  was  refolv'd,  that  by  thofe  W^ords  no  Cullom  or 
Subfidy  is  granted  to  them,  for  this  Reafon,  (among  others)  That  the 
Reference  to  the  Vill  of  Briftol  is  uncertain  and  void,  becaufe  there  is 
no  fuch  Vill  or  Borough  called  Briftol  in  this  Kingdom  of  Ireland  ;  and 
the  Vill  of  Briltol  intended  in  the  Charter  being  in  England,  the  Aver- 
ment that  the  Burgelies  of  Briftol  had  Murage  at  the  Time  of  this  Grant 
cannot  be  try'd  here.  Dav.  Rep.  13.  a.  b.  Mich.  5  jac.  B,  R.  in  the 
Cafe  of  Cufloms. 

(M.  b) 


Prerogative  of  the  King.  87 


(M.  b.)     Grant   of  the   King.     Prcrogntlvcs.     [or  otixr  sze{M.b.z.) 
Thh/gs.~\      W'^hat  Things  he  may  grant  over. 

I.  S  e*  4'  ilOt*  CliltlfD  93emb»  6,  DOrfO*  Verdun  habebac  omnes 
Libertates  ad  Coronani  &c  Regiani  Dignitatem  percincnrcs  excepta  ta- 
men  Crocea,  ailt!  tljOfC  bP  ©tailt  Of  tlJC  KUtn;  $C» 

2*  12  (g»  I  EOt.  CljaCtiin  $@emb,  3*  Pm  Civibus  London,  Vice- 
comitatus  de  London  &  Middlefex  lU'tinteU  tO  tljClU  bj)  I),  3»  auD 
CtljCt  Liberties,   quod  faciat  VicecomFccs  &:c. 

3»  C^ijC  Il\tniJ  llIilP  appoint  another  to  allent  to  the  Election  of  Htt 

abbot  or  a  Biihop.  ^  e*  u  Rot.  pat.  $?9cmb.  15,  16.  6  e.  u 
i^emb.  14.  S.  10.  7  C  i>  99eiiib.  7. 

4*  10  (S.  u  Hot.  f^att  ?!3enib.  2»  Power  gibClt  to  one  to  afTenc 
to  the  Election  of  a  I'utme  Abbot  (JC. 

5.  10  (£»  u  Hot.  li)nt.  £^emb.  4.  Poteftas  concefTa  Edmundo 
Com.  Cornub.  admittend.  Nomine  &  Vice  Regis  majorem  Oxon,  cum 
ipfum  ex  parte  Communitacum  VilLe  predift.e  libi  prefentari  contigerit. 
Confimil.   tbitSCni,  Pro  Majore  &  Vicecomitibus  London. 

6.  IDlDe  (SraUt  w  the  Cultos  Regni  flf  tH^JCtS  Cfjlllli"£).      i  C  2, 

Rat.  |i5at.  part  2»  93emb.  28, 

7.  CljC  JHtlliJ  cannot  fCrant  tije  next  Lapfe  of  the  Church  of  D.  toljicl)  '^'"'  '^"2: 

fi)al!  ijappen,  uaorc  it  ijappen.^.  f^ab.  R.  20s.  TcZWm 

a  Religious  Houfi,  or  preferit  one  to  the  Church  of  hi';  Patronage  in  Revcrfion,  as  is  agreed  in  ;<) 
H.  6.  48.  Foi-  in  thofe  and  other  like  Cafes,  the  King  has  only  a  Prefentmenr  or  Coniincudation  of  a  Per- 
fon,  when  the  Corody  or  Church  is  void.     S  Rep.  55.  b.  Mich.  6  Jac.  in  the  Eari  of  Rutl.md's  Cafe. 

8.  3|f  a  Lapfe  happens  to  the  King,  \)Z  CanilOt  fftailt  It  ObCt;  fOt  ic 
is  a  Truft  in  \)\\ViM.     l)Q\y.  E.  20 8» 

9-  '2DIje  Mwv,  cannot  grant  to  anotljer  Oir.cium  Pinccmse,  calfcu  t!je 

"BUtlCC  OfLOnbOn,  anbtije  Butlerageand  Prifige  of  Wine  Habend.  t(^r 

24  Years ;  for  It  10  nat  ii;rantablc  obcr,  it  being  but  piirlicpancc  foe 

W\X[Z  for  tbC  t\\,\\\X^  l^OtlfC.     $19.  40,  41.  €1  15.  E.  %\l  'Thomas 

Vavifor^  Cafe.  Dub.  5.  €liicrc. 

10.  ^be  Jftino:  cannot  giant  obet  to  anotber  the  foie  Making  of  s.  p.  Refoi- 

Gunpowder  lor  to  dig  in  the  Soil  of  other  Men  ;  fot  It  10  pUtbepanCC  ^"^'^  ?-R^P- 

to  Hin;  \\\  anot!)er'0  ©oil,  [anb]  is  a  Prerogatibe  not  ijtantabic  cife'cf  sak- 
ober.    09.  lo  ja.lD.  %\t  Robert  -johnfons  Cafc  i  pee  Curiam.         pctrc. 

11.  Crin.  2e.  ^.  05.  E.  .Eot.         ^be  l\tnn;  grantciS  to  tbc 

SbbOt  of  EcabiniJ^  inter  alia,  Nee  faciat  Milites  nili  in  Sacra  velte 
Chrilli  io6.  in  qua  parvulos  fufcipere  modelte  caveat,  maturos  autem  leu 
difcretos  tarn  Clericos  quam  Laicos  provide  fufcipiac  &c. 

12.  Eot.  pari.  25  C  3.  2.  13art  J!5.  II.   ^11  tbe  Profits  of  Fines,  p,.ynne*s 
Amercements  of  the  Labourers,  Sellers  of  Viftuals  againlt  the  Statute,  Coit.  Rec. 

ffrante^i  to  t!je  Commons  for  cafe  of  tbc  poor^in  papmcnt  of^^i,,^'/'- 
Centos  bunnstljis  payment.  "  Kin-Jlln 

Confidcration  of  the  great  Dearth  of  Corn,  releafeth  the  Half  of  his  Provifion  appointed  to  be  taken  by 
the  Purveyors,  fiuc  N*^.  iS.  is,  that  tlie  Fines  of  L.ibourers  may  be  paid  to  the  chief  Taxes  of  this  Fif- 
teenth, in  Aid  of  the  Poor. 

13.  jf  a.  leafes  lann,  rererbins  Eent,  anti  after  is  cutlaaetr, 
ann  an  Inquiririon  tbcreof  foiinb,  anb  a  S^eifure  of  it  mane,  anb  tbe  ^_       _ 

IKiniT  grants  ObCr  the  *  Benefit  oi  the  Outlawry  quam  diu  in  Manibus  't^"^^^ 

fuis  it  (ijati  continue,  tbe  patentee  fljall  babe  tbe  Rent  referved  upon ,    °  ' 
the  Leafe,  )xi\)iz\)  fIjaU  becouie  tue  burinu  tlic  ©utlaiun',  fa  lono;  as 
It  contumes  in  tbe  DanbS  of  tbe  Ixiniy.   99icb.  10  Car.  05.  E.  be= 
tiueen  Ca/pcrfer  anb  Csvc^/cy.   per  Curiam.  Eefolbeb  upon  a  ^'pc= 
cial  Dcrbia.   ^Titratur  €x,  7  Car.  Eot.  835. 

14.   The 


88  Prerogative  of  the  King". 

Br.  Prevo-  j^.  The  King  cannot  grant  to  another  the  ?6W,  Day,  and  Wcijl-  given 

ganve,  pi.     y^-^^^^  [^    ^^it  Law  i  tbr  he  cannot  transfer  his  Mercy.      Icnk.  307.  pi.  83. 

104..   cites  •  I-  r^-        1        /-I  J  J  •>      I       sr  .' 

S  (2 cues  3  h.  3.  t'Uz.h.  Lorone  310. 

S!  \\  By  all 

the  Judges,  Jenk.  79.  pi.  55.  cites  i  H.  5.  Fit7.iv  Executors  loS. S.  P.  Jenk.  504    pi.  7;.   cites  5  K 

E  5.  Coronc  Fitih.  jioStamf.  50. 

Br.  Prcfoga-       i^.  The  King  iliall  hiive  all  T/f^fj  which  are  in  Places  that  are  0//? 

cUe.s  s  C^— ■  "/^"J'  P"''''j'^;  «is  in  Inglewood  Forelt  &c.  and  may  grant  them  over  by 

Br.  Dii'mes     his  Letters  Patents.     Jbr  Patents,  pi.  33.  cites  22  AH."  75. 

pi.  10.  cites 

S.C. Br.  Prerogative,  pi.  4.7.  cites  S.  C. Br.  Scire  facias,  pi.  154.  cites  S.  C. 

_Br,  I^nents,        ^d.  Note,  that  the  King  by  Charter  by  exprefs  W^ords,  may  grant  to 
P  .41.  cues   ^  Commonalty  or  Corporation ,  to  make  another  Commonalty  or  Corporation. 

Br.  Prerogative,  pi.  53.  cites  49  All".  8. 
Js\i  he  has      j,y_  Tiie  King  may  grant  over  a  Chofe  in  Acfion.   Br.Chofe  in  Allien, 

out  01  the      ^  ~  . 

Priory  of  D.  he  may  gr.int  the  Annuity  over,  and  the  Grantee  fhall  have  Writ  of  Annuity.     Ibid 

Br.  Prerogative,   pi.  11.    cites  S.  C. So  where  a  Man  has  ra'uijh'd  the  king's  li'nrd,  lie  may  grant 

over  his  A&ion  thereof     Br.  Patents,  pi.  55.  cites  5  E.  4.  8. He  may  grant  over  his  Action  and  Iiis 

Chofe  in  Action.     Br.  Chofe  in   Action,  pi.  6.  cites  2.  H.  7.8. The  King  may  eniwf  .I'irf/w  after 

that  he  has  Caufe  of  Action  ;  as  of  Debt,  ayid  1hiv(l,i  certain.,  but  7ict  of  T're/pii/i  and  Tilings  uncertam. 
D.  I.  b.  pi.  -. S.  P.  Br.  Chofe  in  Action,  pi.  11.  cites  5  E.  4.  8. Br.   Patents,  pi.    55.    cites  S.  C. 

It  was  faid  for  Law,  that  the  King  may  grant  a  Chofe  in  JcHon,  which  is  Perfonal,  As  Debt  and  Da- 
mai'es  &c  ci-  a  Chrfe  A/ixt,  As  the  VVV-rd  of  the  Body,  hut  i:ot  .1  Chofe  Ke.zl,  As  Adiion  of  Land  &c.  as 
Kights,  Entries,  Attions  &c.  whicli  .Abbots  may  have,  and  that  the  King  fhall  liave  thofe  by  the  Sta- 
tute of  Dilfolution  of  Abbeys  51  /y.  8.  Thofe  Choles  in  Action  the  King  cannot  grant.  But  fee  if  there 
are  not  If'crds  in  this  St.itnte  to  put  the  King  in  Pcjjeffion,  tho  the  .4bbct  was  put  to  his  Jciion.  Br.  Patents, 
pi  5)3.  cites  32.  H.  S. 

The  King  may  grant  a  Chofe  in  Aftion,  hnXvot  ivithotit  Special  Wcnis.  3  Lev.  155.  Mich.  35  Car. 
2.  C.  B.  Travel  v.  Cartaret' S.  P.  12  Rep.  2   Ford  v.  Siieldon. 

Br.  Con-  18.  If  the  King  grants  to  a  Man  to  have  a  Fcrrj,  and  to  take  of  every 

tempts, pi. 4.  one  a  Halfpenny  &c.  this  is  good  i  for  it  is  Quid  pro  quo.  Br.  Patents, 
cites  S.  C  ,  'IT  >wii 

pi.  12.  Cites  13  H.  4.   14. 

So  of  Pontage      19.  And  the  King  by  his  Patent  may  grant  to  a  Man  to  take  a  Half- 

of  everyone     pumy  of  every  Mau  jur  tiiclojing  of  his  Vifl,   to  have  Pa£'age  there.      Ibid. 

S?4'.toPer^afcoign. 

make  the 

Bridge  ;  for  they  have  quid  pro  quo.     Ibid. So  of  TJ//  for  the  fame  Caufe.  Ibid. Br.  Contempts, 

pL  4.  cites  S.  C But  the  King  by  his  Letters  Patents  cannot  grant  Muraf^e  &c.  to  take  fuch  Sum 

&c.  becaufc  it  is  in  Charge  of  his  People,  whicli  cannot  be  'ivithoiit  Parliament.     Ibid. 

The  Kin"  may  grant  Toil  to  be  taken  in  Fair  or  Market,  but  not  to  take  for  Pafj'age  in  the  Highway,  viz,. 

ThorDi'.Q,h-toll ;  for  this  cannot  be  taken  but  by  Prefcrtption.     Br.  Prerogative,  pi.  i  1  2.  cites  50  E.  3. 

He  may  grant  7c//,  Fair,  Market  &C.  but  not  to  have  Jfftfe  of  Frejh  Force,  tier  Toll  Traverfe,  nor  T'oll- 
T'horoush;  for  thofe  are  by  Cuftom,  which  cannot  commence  at  this  Day  hy  Grant;  for  the  King  cannot 
make  a  Law  by  his  Gr.ant.     Br.  Patents,   pi.  100.  cites  57  H.  S. 

It  is  agreed,  that  the  King  cannot  grant  Tell  to  be  taken  in  the  Highway,  which  is  free  ;  but  Pontage 
and  Murage  m:i.y  hs  granted,  becaufe  there  is  cjuid  pro  quo  ;  but  then  the  Payment  thereof  fhall  be  no 
lono-er  made  than  the  Bridge  continues  for  the  Ufe,  or  the  Wall  continues  for  the  Defence  of  the 
Sub^edl     Noy  176.  Darcy  v.  Allen, 

Br.  Preroga,      20.  The  King  cannot  grant  his  Prerogative.     Br.  Patents,  pi.  13.  cites 

tive,  pi.   iS,  ij,  H.A.  Q. 

cites  S.C—    ^        ^    ^ 

Ibid.  pi.  (5o.  cites  2  H.  ■.  13.     S.  P.  PcrKebill.— — Tho'  the  King  ^xznx^Jura  Rcgali.i,  yet  it  flian'c 

exclude  the  King  himfclf     Per  Heath  J.  Mar.  165.  Hill.  17  Car.  Anon. 

Holt  Ch.  J.  faid,  He  did  not  know  any  Rcafon  for  a  Difference  between  the  ancient  Lands  of  the  Inhe- 
ritance of  the  Crown,  and  ether  Efl ate s  which  the  King  has,  wiiich  are  01  an  ligler  Kati:re,  and  called  the 
Flowers  of  the  Crown,  as  Waifs,  Strays,  &c.  as  in  9  Rep.  The  SlbbOf  Of  guttata  i5?ari'tlla's  Cafe  ;  alfo 
Hundreds  might  be  alien'd  in  Fee,  til  1  for  ieveral  Inconvenicncies  it  w as  reftrained  by  the  Statute  of  E.  5. 
and  the  King  might  erect  a  County  Palatine,  and  Icparate  it  from  the  immediate  Government  of  the 
King,  with  a  Power  to  pardon  'i  reafbn,'.  Felonies  &c.  till  the  Statute  of  27  H.  S.  cap.  24.  v/hich  re- 
unites the  Liberties  and  Privileges  to  the  Crown.  Skin.  604.  Mich.  -  \\'.  3.  in  Cam.  Scacc.  in  the 
Banker's  Cafe. 

21.  The 


Prerogative  of  the  King.  8p 

■21.  The  King  cannot  /iirpr/e  of  his  Cruivn  by'TeJl'anie/it,  rho'  ic  be  under  *  The  King 
the  Great  Seal;  Nor  of  the  *  Ports  o^  the  Kingdom  ;  I^or  ol'  the  Jc-jijcis  o/'^"'''^,'!  "' 
theCrt-jCH  ;  Nor  of  i^ywd^r  to  pardon  f  Trenfun  or  Felony  within  this  King-  v\M,u„cvlhc 
domi  Nor  of  Power  to  make  t  Judges,  Jii/jces  of  the  Peace,  or  Sheriffs-,  C,<fiodyof  a 
Nor  of  fuch   which  concern  Government  in  a  high  Degree  ^    Of  thelc  ^V"''''^''^^' 
the  King  can  neither  make  a  Grant  nor  a  Teliament.He  may  grant  the  '-^^  "  '"^J^  * 
II  Lands  which  he  lias  ///  Jure  CoronWy    ly  his  Letters  Patents,    or  by  his  |^f^^  °/  "^^"^ 
JVi II  under  the  Great  Seal.     By  all  the  judges,     jenk.  79.  pi.  SS-  't;ites  and tiia d'orc 

I  H.  5.    Fitzh.   Executors  loS.  the  Grant 

was  void,  and 
fo  adjudged ; 
and  fu-h  Grants  are  exprefsly  again  ft  9  £".  5.  i,  Godb.  254.    Pafcli.  12.  J.ic.  in   the  Cafe  of  Cloathwork- 

ersof  Ipfwicli. Roll  R.  5.  in  S  C.    S   P  —  Jenk.  904.  pi.  77. ■ 

t  A  Grant  to  pardon  'I'reafons  is  void  ;  But  in  Scotland  arui  frehnd,  fucli  Grant  to  be  executed  in  the 
Name  of  the  King  is  f^ood.  .\nd  foro  make  Knights  there.  The  D'tfi.inie  of  Place  andfudden  Ouafions, 
and  the  King's  Aolcnce  make  the  DilFerence.  By  all  the  Judges  of  England.  Jcnk.  1 7 1.  pi  36.  cites  i  H, 

'■"''■        .... 
^  The  King  cannot  j^/.iwi  <j  a  Af.rr.  to  make  ^;i  Ojicer  of  Record  to  fsrve  the  Rin^'i  Court,  nor  to  make 

a  'tafri.e  ;  Qutcre ;  For  Cities  and  Bnrghes  have  fuch  Liberty.   Br.  Parents,  pi.  45.  cites  2  H.  7.  (J. 

'Tne  King  cannot  grant  a  Power  to  any  to  make  Julticcs  of  Oyer  and  Terminer  ;    but   he  ou<'ht  to 

conftitute  fuch  juftices  himfcif;  for  ic  is  a  High  Prerogative.  Je  ik.  i"i.  pi.  56.  cites  i  H.  -.  16. 

Gr.iKt   of  tne  King  made  to  the  Jhhot   of  St.  .-llhan's   to  make  Jtijliccs,    is  not  good  ;    for  is  a  'fhiw 

annexed  to  the  Cro-zi-):,  and  cannot  be   fcver'd,  as  Grant /o  make  Doii'zens,  ortofirdon  Felons  is   not  pood 

contrary  of  Ste'ward  in  Leet,  or  Jnfiice  where  Conulance  ofPieais;  for  thole  are  the  Stewards  or   Julliccs 

of  the  King;   but  the  Grant  above  to  th.;  Abbot,  to  make  Julticiariosfuos  [is  not  good]  and  fuch  cannot 

aiioiv  Cn-cy  to  a  Feicn,  nor  the  Ordinary  is  not   bound    to   obey  him.   Br.  Patents,  pi.  in.  cites  20  H. 

7.6   ^  Fineux  Juftice. 

1  he  King  has  Pov.er  to  alien  orcharj^e  the  Eftate,  which  he  has  in  Jure  Coronx.  Per  Holt  Ch  J. 

Mich.  7.  W.  3  Skin.  602.  603.  in  the  Banker's  Cafe. 


22.  If  the  King  grants  to  mc^  Fair  and 'toll  in  B.  this  is  a  good  Grant 


Nor, 

or  th  ,  ^  .  j,i.,,,  ue  jj- 

pl.  25.  cites  37.  H.  6.  27.  viilblc'^  B^^l 

rou:^h-Eng- 
lifh,  Gavelkind,  nor  the  like  ;  for  thofc  are  by  Cuftom,  which  cannot  commence  at  this  Day  b'v  Grant  • 
for  the  Ki'-g  cannot  make  a  Law  by  his  Grant.  B.  Paicnts.  pi.  100.  cites  37.  H.  S. i>.  P  Br.  Pre- 
rogative pi   53.  eices  49  Aff.  8. Br.  Patents,  pi.  41.  cites  S.  C. 

24.  The  King  might  aflign  Part  of  the  !7f;;f/ij  granted  to  him  ^j?/?;^  Br.  Cho'eia 
Clergy  to  certain  of  his  Creditors,  and  by  this  the  Clergy  became  Debtors  4*^'°"  P,'-  T- 
to  them,  and  the  Collectors  charged,  and  the  King  oulted  oi  it.     Er-  q^  \:harte~^ 

GraHtS.pl    III.  cites  I  H.  7.  8.  de  Pardon. 

pi-  ;■.  citei 
S.  C.  —  Br.  Quiniimc  pi.  -.  cites  S.  C. 

25.  The  King  may  grant  over  his  Rent,  and   his  Condition  to  rt-enter  S  P.  per 
for  Non-payment.  Br.  Chofe  in  Action,  pi.  6.  cites  2.  H.  7,  8.  HufleyCh  J. 

Br  Parents, 
pi.  4().  cites  2  H.  7.  7  ■ S.  P.  Per  Wefton.  J.  PL  C.  243.  in  the  Cafe  of  VVyllion,  v.  Lord  Barklev, 

26.  Tht  K-'ing  may  h  Fotmder J  and  have  no  Corody,  as  where  the  Kino- And /^  he 
grants   at  the  Commencement,    that  neither  he  nor  his  Heirs /ball  have  the  "^-^y  ^''^^^'■^^^ 
Corcdy,  and  he  may  re leafe  it  after  3   tor  the  Name  of  Founder  remains  '^^'ff''I^>'-»^« 
Br.  Patents.  PL  57.  cites  8  H.  7.  12.  ^S/S'. 

Tenure  remain.';.  Ibid.  —  But  he  cannot  rcleafc  all  the  T'entire  ;  for  all  Land  fhall  beheld  Med-     1 
Immediately.     Ibid.  '•'^-'y'  "'^ 

27.  The  Queen  h-as  Right  to  certain  Land  by  the  Attainder  of  J.  S. 
who  was  a  Dijfeifec.  In  this  Cale,  if  fuch  a  naked  Right  may  be  granted 
at  all,  it  ought  to  be  granted  with  ipecial  Recital  by  exprefs  and 
fpecial  Words,  per  Cur.  3  Rep.  4.  b.  Trin.  35.  Elix.  in  the  Maiquis  of 
W'incheftcr's  Cale. — cites  8  Eliz.  Conner's  Cale,  alias  Cromer's  Cafe. 

Z  23.  A. 


90  Prerogative  of  the  King. 


28.  A.  obtained  u  Licence  I'rom  the  King  to  go  beyond  Sea  lor  a  cer- 
tain Time,  and  after  the  I'ime  expired  A.  ;.f  commanded  under  the 
Privy  Seal,  upon  his  Allegiance,  to  return  to  England,  and  does  not 
obey.  It  was  refohcd  by  all  the  Judges  of  England,  that  if  A.  in 
this  Cafe  has  a  Manor  where  there  are  Copyholds,  the  King  may- 
grant  the  Copyholds.  Jenk.  246.  pi.  35.  cites  23  Eliz.  D.  275.  177. 

29.  King  H.  6.  granted  to  the  Corporation  of  Dyers  within  London, 
Power  to  iearch  (S^c.  and  if  they  found  any  Cloth  dyed  ivith  Logwood^ 
that  the  Cioxhpoidd  ie  forfeit ;  And  it  was  adjudged,  that  this  Charter 
concerning  the  Forfeiture  was  againll  the  Law  of  the  Land,  and  9 
H.  3.  29.   For  no  Forfeiture  can  grovJ  by  Letters  Patents.  2  Inft.  4.7. 

30.  It  was  refoh  ed,  That  the  King  may  grant  zvild  Szvans  'umnark^d^ 
and  their  Cignets.,  as  in  Rot.  Par  An.  30  E.  3.  Part.  2.  Num.  20.  the  King 
granted  to  C.  W.  all  wild  Cignets  unmark'd  between  Oxford  and  London 
tor  leven  Years.  And  ineodem  Rot.  An.  16.  R.  2.  Part.  i.Num.  39.  fuch 
a  Grant  of  wild  Cignets  in  the  County  of  Cambridge  to  B,  Bereford 
Knight.  And  in  eodem  Rot.  An.  i  H.  4.  Part.  6.  Num.14.  ^  Grant  w.s 
made  to  John  Fenn,  tofurvey  and  keep  all  wild  Cignets  unmark'd,  Itcqacd 
de  profciio  refpondeat  ad  Scaccarium,  by  which  it  appears,  that  the  King 
may  grant  wild  Swans  unmark'd.  7  Rep.  18.  a.  Trin.  34.  Eliz.  in  the 
Cafe  of  Swans. 

31.  If  Penalties  arc  given  hy  Acts  of  Parliament  for  Relief  cf  the  Poor, 
the  King  cannot  difpofe  of  them  otherwife.  Jenk.  307.  pi.  83.  cicesHill. 
2  Jac.  7  Co.  36.  b. 

32.  King  cannot  grant  ReverJ/onem  Officii ;  For  he  has  no  Re^erfion, 
but  Inheritance  grantable  in  Reverlion.  8  Rep.  57.  a.  iViich.  6  Jac.  in 
the  Earl  of  Rutland's  Cafe. 

3  3.  The  King  may  grant  a  Rent  out  of  a  Fair,  or  a  -fhing  not  mantirabk, 

as  out  of  a  Bailiwick,  Tithes  &c.  Jenk.  14:  pi.  24. 

34.  The  King  by  his  Grant  cannot  exclude  himf elf  from  profecuting  any 

Plea  of  the  Crown  ;  for  it  concerns  the  publick  Government,  and  cannot 

be  feparated  from  his  Perfon.  Jenk,  190.  pi  93. 
.S.  C.  Fi-cem.  35.  King  Ch  2.  being  indebted  to  divers  Perfons  in  41,6000  1.  8  s.  2d, 
Rep.  551.  in  for  the  Payment  of  the  Interelt  of  that  Sum,  grants  lor  him,  his  Heirs 
the  ^•'^'^h^-  and  Succelibrs  25,000  /.  per  Ann.  to  he  paid  out  of  his  Re-jenue  of  the  Here- 
Tinl.  And  (^itary  Fxcife.  And  tho'  it  was  objefted.  That  this  Revenue  was  given 
it  was  agreed  by  Acl  of  Parliament  and  that  it  arifes  out  of  the  Purfe  of  the  People, 
by  Atkins,  And  that  they  are  not  alienable,  becaufe  they  come  in  the  Place  of  an 
Turton,  and  Inheritance,  which  the  King  could  not  have  aliened  as  Tenures  in  Ca- 
L°tchrncre  ?^^^->  Purveyance  &c.  yet  adjudged  that  the  Grant  was  good.  Skin.  601. 
contra,  That  &c.  iMich.  7  W.  3.  in  Cam.  Scacc.  The  Banker's  Caft. 

theGrantwas 

good  to  charge  the  Succcffor.  It  was  admitted,  That  the  Kingraay  grant  an  Jrwulty, or  charge  hisRevc- 
nue,and  cited  manyBooks  to  that  Purpofe;  but  it  miifl  he faid  of  ivhofe  Hands  to  he  received,  or  elfe  it  is  not 
rood  ;  forte  cavr^ot  charge  his  Perfon;  and  that  it  is  good,  not  vvithftan  ding  it  is  out  of  an  Incorporeal 
inheritance.  And  though  it  was  objefted  that  this  is  but  an  Authority,  and  fo  void  by  the  King's 
Death,  becaufe  revocable;  yet  they  held  itan  Intcrcft  ;  and  a  Licenfe  coupled  with  an  Interjit  is  irre- 
vocable.    Upon  the  Petition  of  Hornbee,  Williamlbn,  Smith,  and  Stone. 

36.  "V\"hether  the  King  may  grant  the  Inheritance  of  a  Vi/itation  may 
be  aQuellion  ;  for  it  may  be  faidto  be  privy  to  his  Perfon  ^  but  with- 
out doubt  he  may  grant,  to  whom  he  pleaies,'  to  be  Vilitor/or  a  T'nne. 
Per  Holt  Ch.  J.  12.  Mod.  233.  Mich.  10  W.  3.  Anon. 

37.  An  Appeal  lies  to  the  King  in  Council  trom  a  Decree  made  in  the 
Ifle  of  Man  by  the  Lord  Derby,  tho'  the  Grant  v/as  made  of  the  I/le  of 
Man  without  any  Rcfervation  of  the  SubjecTs  Right  of  Appeal  to  the  Crown ; 
PerLd  Ch.  J.  Parker  i  For  that  otherwife  there  would  be  a  Failure  of 
Jullicei  And  the  Lords  of  the  Council  proceeded  in  the  Appeal,  and 
determined  in  favour  of  the  Appellant,  and  the  Lord  Derby  fubmitted 
and  confented  to  the  Examination.  W'ms.  Rep.  329,  Mich.  1716.- 
Criilian  v.  Coreen. 

(M.  b.  2) 


Prerogative  of  the  King.  91 


(M.  b.  z)  Grants  of  the  King,     What  Things   he  may  see(M.  b) 
grant.     I)iJpe?/JntioNSy  or  Forjcitm-cs  on  Fcnal  Statutes. 


i.rrnHE  King  c-xnnot grant  to  any  one  a  Po'voer  to  difpetife  with  anyPe-  S  P.  Hob. 
_|_     iial  Statute  Jultice  and  Mercy   are  infeparably  annexed  to  the '*'5, '^''.'• 
Crown  and  cannot  be  transferred ;  By  all  the  J  udgesol  England.  Jenk.  CafeoFDa- 
307  pi.  83.  cites  Jhlill.  2  Jac.  7  Co.  36.  b.  &c.  the  Cafeoi'Uiipenliitions.  viion  v.  Bar- 
ber   

S.  p.  Hob.  155.  Micii.  10  Jac  in  Cafe  of  Colt  and  Glover  v.  the  Bifliop  of  Coventry. The  Kincr 

cannot  giant  to  any  Subject  l^wer  to  difpcnfe  with  as  many  OtFenders  as  he  pleafes  ;'  By  all  the  Judges 
ofEngl-.md.  Mo.  764.  Mich  3  Jac.  Kichards's  Cafe.  ° 

2.  Queen  Eliz.  under  the  Great  Seal,  granted  the  Penalty  and 
Benefit  of  a  Penal  Statute,  with  Power  to  dilpenfe  with  the  liiid  Sta- 
tute, and  to  make^\'ilrrant  to  the  Ld.  Chancellor,  or  Keeper,  to  make 
as  many  Difpenlktions  and  to  whom  he  pleafe.  Upon  a  Reterence  of 
this  Grant,  it  was  rei'olved  by  all  the  Jultices  of  England,  that  the 
faid  Grant  was  utterly  againll  Law  ;  And  alfo,  That  when  a  Statute 
is  made  by  Parliament  Pro  Bono  Ptibhco^  the  King  cannot  give  the  Pe- 
nalty, Benefit,  and  Dilpenf.ition  of  fuch  Aft  to  any  Subject,  nor  im- 
power  a  lySubjetl  to  dilpenfe  with  it,  or  make  Warrant  to  the  Great 
Seal  1.0  grant  Licences  in  fuch  a  Gale  ;  For  m  fuch  Cafe  the  King,  who 
is  the  Fountain  of  Jullice  and  Mercy,  is  trultcd  with  it  Pro  Bono  Pub- 
lico, and  this  Confidence  is  infeparably  annexed  to  the  Pcrion  of  the 
King  in  fo  high  a  Point  of  Sovereignty,  that  he  cannot  transfer  it  to 
the  Difpofition  or  Power  of  any  private  Perfon,  or  to  anv  private  Ulej 
For  it  was  committed  to  the  King  by  all  his  Subjetts  for  the  Pablick 
Good.  And  if  he  may  grant  the  Penalty  of  one  A61,  he  may  do  fo  in 
Infinitum;  Nor  was  iuch  Grant  known  to  have  been  made  before; 
Tho'  true  it  is,  that  the  King,  upon  Reafons  moving  him  thereto,  ia 
refpeft  of  Time,  Place,  or  Perfon  &C.  may  make  a  Non-Obltante,  and 
difpenfe  with  any  particular  Perfon  that  he  lliall  not  incur  the  Penalty 
of  a  Statute,  and  with  this  the  Books  agree.  7  Rep.  56.  HilJ.  2  Jac, 
The  Cafe  of  Penal  Statutes. 

3.  The  King  cannot  grant  over  the  Penalties  of  Penal  Statutes  ;  Per  all 
the  Juftices  ot  England.     Mo.  764.  Mich.  3  Jac.  Richard's  Cafe. 

4.  21  Jac.  I.  3.  S.  I.   It  is  enaffed,  that  all  GmmiJJions.^  Grants,   Li-  Irappearsby 


ream- 


cences.  Charters,  and  Letters  Patents,  heretofore  granted  or  made  to  any  ''^"  ^ 
Perfon  or  Perfons,  Bodies  Politick  or  Corporate,  oj  any  Power,  Liberty,  or  p%^^  ^f^"^  11 
Faculty,  to  difpenfe  ivith  any  others,  *  or  to  give  Licence  or  Toleration  to  do,  Gi-3nt.sof  the 
life,  or  exercife  any  thing  againfl  the  'Tenure  or  Purport  of  any  Laiv  or  Statute  l-Jenefit  of  a- 
or  to  gi've  or  make  any  li'arrant  for  any  fuch  Difpenfation,  Licence,  or  Tvlc-  "^  ^^"^^ 
ration  to  he  had,  or  made,  or  to  agree,  or  compound  ivith  any  others  for  any  p'^"^'  °'' 
Penalty  or  Forfeitures  limited  by  any  EJfate,  or  of  any  Grant  or  Promife  o/'difie-ife  witli 
the  Benefit,  Profit,  or  Commodity  of  any  Forfeiture,  Penalty,  or  Sum  of  Mo- ''■'^^'^  ^^^- ,  or 
?iey,  that  is  or f hall  be  due  by  any  Statute  lefm-e    'fiidgruent  thereupon  Z?^^,  1.°  ™'"P°^'^'^ 
and  all  Proclamations,  Inhibitions,  Rejlraints,  Warrants  of  ylffifl an ce,  and  f'^^^ff^   f^'^f 
all  other  Matters  and  I'hings  whatfoever  any  way  tending  to  the  inflituting,  contrary  "to 
eretimg,  Jirengthening,  furthering,  or  countenancing  of  the  fame,  or  any   0^  thea^cient 
them,  are  altogether  contrary  to  the  Laws  of  this  Realm,  in  no  wife  to  be  put  '^^''"^^"lental 
in  Execution.  ^  ■^     Lav^softhw 


Realm.     It 
va.-i  one 

red  the 


of  t!ve  Article:  whereupon  the  ©pftlfCrS'  in  the  Rei^n  of  E.  2  were  fentenced,  that  they  pmcu 
Kjrg  to  make  many  Difpenfatiotis,  and  Jo  bv  their  ill  Counfel  defeating  that  which  the  Kinc  luid  grant- 
ed .by  Parliament  by  good  Advice  In  50  E  ;  l\IClwrD  jt^IOHS,  a  Merchant  of  London,  and  the 
?lorO  idatimiT  were  fcverally  fentenced  in  Parliament  for  procuring  of  Licences  and  Diri.cnrations  to 
traofport  Wools  £cc    ;  Inft.  1S6.  cap.  S(). 

*  The 


92  Prerogative  of  the  King. 


♦  The  great  IiiLOiiveniencc  hereof  ajneaicd  in  the  Proceedings  of  CmpfOIl  r.UO  "JDuDll)'  in  the 
Reign  of  H.  -.  wlio  had  t!ie  Othce  of  Mailers  of  the  Forfeitures,  and  by  Colour  of  their  CommilTion 
and  Office  did  moll  intolerably  ami  unlawfully  opprefs,  burden,  and  depauperate  the  Subjcdts.  The 
like  O-prclTion  was  uied  by  certain Commiffioners  for  Compofitiotis  to  be  made  for  Oilcnces  committed 
ygainll  renal  Statutes  in  the  Reign  of  Q;ieen  Mary.   5  Inft.  iS".  cap.  35. 

And  pall  he  for  ever  hereafter  esamined,  heard ^  tried .^  and  determined 
by  and  according  to  the  Conunon  Laws  of  this   Realin^  and  not  othawtfe 

Bv  this  Pro-  Provided  alfo,  that  this  Atl pall  not  extend  to  any  Warrant  or  Privy 
vifo  the  Seal  made  or  clireiied,  or  to  be  made  or  diretled  by  his  Majefiy^  his  Heirs  or 
Judges  be-  Sf/cecff'ors,  to  the  Jrifiices  of  the  Court  of  King's  Banh,  Common  Pleas, 
the'cauft'de-  ^^'^''('"^  of  the  Exchequer  ^c.  and  other  ffiijlices for  the  Time  beings  having 
pcnd^,  and     Pc^ji^er  to  hear  and  determine  ^c.  to  compound  Sc 

that  have 

Power  to  henr  and  determine  the  fame,  yi\\o  are  frefumed  to  he  indifferent  between  the  King  and  the- 
Subjeiit  may  by  V^'arrant  or  Privy  Seal  &c.  compouad  Sec.  for  the  King  only,  after  Plea  pleaded  by 
the  Defendant.  5  Lift.  1S7. 

5.  1  IV.  ^  M.  Sejf.  2.  c.  2.  S.  I.  Grants  and  Promifes  made  of  Fines 
and  Forfeitures  before  any  ConviBion  or  Judgment  agamfi  the  Perfons  upon 
whom  the  fame  -were  to  be  levied,  are  utterly  and  direlily  contrary  to  the 
knovjn  Laws  and  Statutes  and  Freedom  of  this  Realm. 


(M.  b.  3)  Grant.     What  the  King  may  grant.     Tbh?gs 

7iot  in  Ejje. 

Br.Contcmptsji.  rTp'HE  King  granted  the  Office  of  Meafurer  of  Cloths  in  London  to  J. 
pl.  4.  cites  j^     yj/_  and  Writ  awarded  to  the  Shcrip  to  put  him  in  PcpefJ/on^zwd 

c'r_l_B  ^^^  ■'^Layor  returned  that  there  is  no  fuch  Office;  the  King  tv?;/«o/  make  fuch 
Patents,  pl.  Office  m  Charge  of  his  People  by  his  Grant  zvithout  Parliament,  and  the 
12.  citesS.C  Return  awarded  good.  Br,  Retorn  de  Briets,  pl.  40.  cites  12  H.  4. 

2.  It  was  agreed,  that  the  King  may  grant  Fines  and  Amercements  a- 
rijtng  in  his  ordinary  Courts  whereof  he  is  inheritable  ;  quod  nota  i  and 
yet  they  are  not  in  ElFe  at  the  time  &c.  Br.  Patents,  pl.  i6.  cites  19 
H.  6.  62. 

3.  If  the  King  grants  to  h'\s  Tena.nt  that  his  Heir  may  enter  without 
fuing  Livery  this  is  good,  and  yet  it  is  not  in  the  King  at  the  time  &c. 
Per  Yelverton,  quod  Markhum  conceffit.  Br.  Patents,  pl.  16.  cites  19  H. 
6.  62. 

4.  If  the  King  grants  to  me,  that  //  /  alien  the  Manor  of  B.  which  I 
hold  of  him  that  it  pall  be  difcfaarged  of  the  Fine,  by  this  1  iliall  be  dil- 
charged  when  I  alien  ;  Per  Hody.  Br,  Patents,  pl.  16.  cites  19  H. 
6.  62. 

5.  The  Queen  fei.^ed  of  a  ReCiory  appropriate  granted  Advocationem 
Fcclefit£  ^c.  Manwood  Ch.  Baron  held,  That  the  Ad\  owfon  did  not 
pafs,  but  remained  appropriate  as  before,  and  that  by  the  Appropriation 
the  Advowfon  was  gone,  and  not  in  Elie,  and  confequently  cannot  be 
granted  ;  And  this  Grant  is  not  helped  by  the  Statute  4£5' 5  it/ixr.  of 
Confirmation  of  the  King's  Grants  i  for  that  >^^//)j  0;//)'  Mifrecitals,  Mif- 
naming,  or  Mifiakmg  &c.  but  here  is  no  fuch  Thing  in  Rerum  Natura  as 
is  pretended  to  pafs  by  this  Grant.  2  Leon.  80.  pl.  106.  Trin.  26  Eliz. 
in  the  Exchequer.  The  Queen  v.  Lord  Lumley. 

Raym.  241.        ^-  ^^  ^"  Information  in  the  Exchequer,  by  Engl  ill]  Bill,   for  D-ere/icJ 

S.C. 2    Lands,  the  Cafe   was,  King  James  granted  certain   Marlh- Lands   bor- 

Mod.  106.  dering  on  the  Sea  to,T.  S.  and  Ex  uberiori  Gratia,  he  granted  all  the  Soil, 
Gencrdand  ^'^"""^^  Land,  Sand,  and  Marfh-Land  Contigue  adjacen'  Pr£emi(iis,  which 
Sir  Edward  ^""^  "^'^'  overflowed  and  covered  with  Sea-Wfiter,  S  q!t-£  ad  aliquod  Tempus 
Turner  in 


Prerogative  of  the  King.  9^ 


in  pqfleriira  renipcraf  Jorent  per  ReltcJionera  Mans  &c.  N^on  Obfiantc  non  ieems  to  be 
nominando  I'aloxm,    qiiantit ateiii  I'cl  qnalitateni;  Alter  this  Grant,    loo  ^'^.    ^^} 
Acres  more  became derclici  and  adjoining  to  the  laid  Marih-Lands  ;  and  "j^^rncn- 
the  Queltion  was,  Who  fhould  have  thole  Lands,  the  King  or  the  Pa- tions  any  0-, 
tcntee  ?   It  was  infirted,    That  the  King  Ihould  have  them,  becaufc  pinio-i  of 
thofe  Lands  were  DereiiSt  lince  the  (Jrant,  and   therefore  lliould  not  '^''^'^  ^'^^'■'^^ 
pals  by  it  ;  For  the   King  cannot   grant   that  which  he  had  noti  and 
that  Lands  which  he  had  by  his  Prerogative    will  not   pafs  by  thofe 
general     Words  in  the  Grant ;   but  it  was  anfwered.   That   the   King 
may  grant   what   is  not  aitually  in   him   at  the  time,    and  that  hero 
is  as  much  Certainty  as  the  Tning  will  admit  ;  for  it  could  not  ap- 
pear how  many  Acres  there  would  be  i  but  admitting  it  to  be  incertain, 
it  is  made  good  by  the  Non  Obilante,  which  helps  all   Delaults  for 
want  ot  Information  in  the  King  ;  but  it   was  held  per  Cur.  (with  the 
Advice  of  the  two  Ch.  Jullices^  that   the  Grant  was  void  as  to  the 
100  Acres,  and  that  nothing  palled   by   thofe    general   Words.    2  Lev. 
17  1.  Trin.  23  Car.  2.  in  Scacc.   Atcorney  General  v.  Sir  Edward  Far- 


men. 


« 


(M.  b,  4)  What  the  King  may  grant  during  Ko?mge. 

1.  7    Ed.   6.    3.  f^Oiijrrms  the  Kin^s  Letters  Patents  :iotnjcitl' ft  a;id~ 

\^  ifig  his  Nonage  vr  any  Statute  hcretcfcre  made  jor 
the  Referv-'Tticn  of  T'cinires,  Rents,  or  T'enrhs. 

2.  Leajes  made  by   the   King  of  Lands  of  the  Dtitchy  of  Lancaftcr  S  P.  whe- 
are  not  voidable   by  the  Nonage  of  the  King,  in  as  much   as  they  pafs  r     |"p, 
from  his  Per  fen   as  King,  and  not  as  Duke  ;  hot  per  Komen  Regis  No-  p^.  ^f  ^j^g 
men  Ducis  demergitur  ;  by  all  the  Jultices  or  both  Benches.  Jj.  209.  r">iitchvor 
b.  pi.  22.  Mich.  3&4  Eliz..  Anon.  Lancafiei-or 

within  ;  and 
the  Law  is  all  one  where  the  Lcafc  is  made  of  the  Land  of  the  Dutchy,  which  is  not  in  Leiifc,  to 
commence  immediately,  and  where  it  is  of  a  Leafe  of  Land  of  the  Durcliy  to  commence  after  another 
Leafe  before  made,  the  one  nor  the  other  is  not  avoidable  by  the  Non-age   of  tlie  King  ;  per   all  the 

iiiftices,  Serjeants,  and  Counfel  (.except  Rufwcl)  PI.  C.  zzi.  b.  4  Elii,  the  Cafe  of  the  Dutcliy  of 
ancafler. 


(M.  b.  5)  /P%7t  Things  the  Khig  may  grant,  ?iot-zQ'nh- 
fiandthg  a  former  Grant  j  and  in  Avhat  Caies  fuch  a  I2- 
cond  Grant  lliall  be  a  Pvcpeal  of  the  fiift  Grant. 

1.  rnpIHE  King  granted  to  W.  T.  a  IVard,  fo  long  as  it  pall  happen  to  he 
J[_  ///  onrhands  fromHcir  toHeir  &c.  Atterwards  the  Heir  came  tojnll 
Jgc,  and  died  before  Lrocry  fued,  or  Homage  done  ;  and  after  the  A'///_^ 
granted  th.i  Ward  of  this  Heir  to  H.  And  the  Opinion  of  the  Court  was, 
that  the  fecond  Grant  is  good,  by  Reafon  that  the  hrlt  did  not  die  in 
W^ard,  becaufe  he  was  of  full  Age,  notwithllanding  that  he  did  not  fue 
his  Livery,  nor  do  Homage ;  and  therefore  thefe  W'ords  (Irom  Heir  to 
Heir)  are  determined.     Br.  Patents,  pi.  6S.  cites  14  E.  4.  7. 

2.  The  King  was  Founder  of  an  Abbe}',  and  granted  a  Corodj  to  a 
Man  who  was  thereof  pofefs'd  i  and  after  the  King  granted  ihc  fame  Cormly 
to  the  Jtbot  and  his  Stuccfirrs,  and  that  they  (hall  be  quit  of  him  and  his 
Heirs  :  And  fome  faid,  that  the  Grant  was  not  good,  becaufe  the  King 
had  not  Corody  at  theTime  of  the  Grant,  As  ofan  Office  ;  for  the  Grantee 
is  thereof  pofiefs'd,  and  the  King  has  no  Revcrlion  in  it ;  for  the  King 

A  a  himfeif 


94  Prerogative  of  the  King. 


hiiDftlt'cannot  have  the  Corody,  nor  be  Officer ;  and  alfo  Corody  is  in- 
cident to  the  King  as  Founder,  and  he  cannot  releafe  it  any  more  than  a 
Tenure  ;  and  the  Jufticcs  e  contra.  But  in  the  Cafe  ot  the  Corody  the 
firlt  Grant  was  recited  i  and  therefore  the  King  is  not  deceived,  and 
confequently  good  i  and  xh\s  (ball  enure  by  Way  of  Extitiguijh'incnt.  Er. 
Patents,  pi.  57.   cites  8  H.  7.   12. 


.SeecM.b.o(M.  b.  6)     Leafes   and   Grants  of  the  King,    as  to    the 

Dutcly  of  Lancajler^  Cornwall  ^c. 

Br.  Fcr.ff-      I.  T"   AND  of  the  Dntchy  ofLancaJler  Hiall  pafs  from  the  King  ly  Let- 

oiit^  ihe  _,   ^  ^         ^  -      . 

Duke,  and  not  as  King.     Br.  Prerogative,  pi.  72.  cites  21  E.  4.  60. 


m-nrs,  (M.  51.       ^^  ^^.j-^  Patents  only,  if  it  lies  in  the  County  Palatine  ;  but  ij  it  Iks 
"^""^  ow,  then  Livery  cf  and  Seifin  otiiht  to  be  made  ol'theni  i  lor  he  has  chemas 


S  C.  cited  2       2.  Grant  ot   the  Revcrjion  of  Diiicby  Lands  without  Attornment,  un- 

Lutw^  1257.  der  the  Dutchy  Seal,  is  a  Grant  by  Record,  and  pafles  the  Reverjwn,  as 

'"5rj'''-"°'       a  Fine,   i.e.  x.o  di-^eji  theEJlatewtthoiit  Attcrmrieyit  ,  hm  not  to  make  Pri- 

Clark  'vity  to  have  A8ion  oiJVaJl^  according  to  Co.  4  Inlt.  209.  But  if  the  King 

will  make  Feolfnient  of  it,  Lt-very  ought  to  be,  as  in  Cai'e  of  a  Subject  j  for 

the  King  may  do  this  by  Attorney,     i  Lev.  28.  Pafch.  13  Car.  2.  B. R.. 

Carpenter  v.  jMarlhall. 

3.  s  S  6  IV.  i:^  M.  18.  Ena£ls  that  Grants  made  by  King  Charles  2.  ^c. 
of  any  Parcel  of  the  Dutchy  of  Cornwall  fiall  be  good. 

Provided  that  fitch  Grants  be  for  3 1  Years,  or  determinable  upon  three 
Lives,  and  not  dtfpttnijhable  o/'Waft  ;  and  that  the  ufual  Rent  be  referred, 
and  ij  no  ufual,  then  a  reafonable  Rent,  not  being  under  the  20th  Part  of 
the  clear  yearly  Value. 

And  that  Covenants  ^c.  pall  bind  Revcrjioncrs. 

Saving  to  all  Perfons  their  Rights,  except  the  King  and  his  Heirs,  and 
the  Duke  of  Cornwall  and  his  Heirs  &c. 

And  that  'tenants  compounding  for  the  incrcafed  Rent,  the  old  Rent,  or 
ether  Rentfo  compounded  for,  only  to  Jl  and. 

And  that  the  Fees  &c.  tor  Grants  oj  fmall  Value  fiall  net  exceed  fitch  a 
certain  Sum,  and  impofes  a  Penalty  upon  Officers  offending. 

4.  12  i^  i^  PV.  3.  13.  Enafls  that  all  Leafes  Sc.  made  bv  King  Ch.  2. 
King  J  a.  z.  or  King  William  and  ^letn  Mary  ^c.  of  any  Offices,  Lands^ 
k3c.  in  the  Dutchy  of  Cornwall,  fiall  be  lood  m  Law  &c. 

Provided  that  the  Leafes  be  not  for  more  than  three  Lives,  or  thirty-one 
Tears. 

And  that  Covenants  ^c.  in  fuch  Leafe  or  Grant  fjc.  fiall  be  good  and 
ejfe^ualin  Law,  according  to  the  Words. 

Saving  to  all  Perfons  &c.  their  Right,  except  the  King  and  his  Heirs, 
and  the  Duke  of  Cornwall  and  his  Heirs. 

And  that  Tenants  compounding  for  taking  off  any  increafcd  Rent  £rV.  on 
Payment  of  Compofition  Money,  fuch  increafed  Rent  to  ceaie  ^c. 

And  that  the  King  may  make  any  jmther  Grant  of  Grounds  ^c.  being 
Part  of  his  Manor  oj  Greenwich,   to  the  life  of  Greenwich  Hofpital. 

5.  6  Ann£  25.  Enafts  that  all  Leafes  made  of  Lands  &c.  Parcel  of  the 
Dutchy  of  Cornwall,  by  Copy  of  Court  Roll,  or  within  7  Tears  next  en~ 
filing,  according  to  Cufiom  of  Manors  of  the  faid  Dutchy,  fimll  be  good  in 
Law. 

Provided  that  no  Leafe  he  for  more  than  3  Lives,  or  3 1  Years. 

And  that  all  Covenants  Sc  in  Leafes  ^c  jhall  be  good  according  to  the 
Words. 

Sa\  ing  to  all  Perfons  ^c.  their  Right,  except  the  ^ueen  and  her  Heirs, 
and  the  Duke  of  Cornwall  and  his  Heirs. 

A'.'.i 


Prerogative  of  the  King.  95 

Jnd  on  Payment  of  Ccmpojition  Money  for  taki//g  off  increnfed  Rent, 
f:ich  iHcrcafcd  Rent  pall  ceafe. 


(M.  b.  7)     What  the  King  may  grant  'vjitkout  Record  or 

Inroll  merit. 

I.  "^^Othing  fliall  paCs  from  the  King  hut  by  Matter  of  Record ;  Per  the  ^^^«  ^r^ 
^  _^   Jultices  ol'  C.  B.     Br.  Prerogative,  pi.  70.  cites  14  E.  4  2.  fez^erlmin^s 

•witlout  U'riiirif,   ajid yet  if  it  Comes  in  Ure  ;;;  tlie  Lncc,  it  !s_  ycd  for  nothing  ;  per  Brian  ckarly.     Br, 
Prerogative,  pi. 61.  cites  4.  H   7.6.     ButShcUcy  ].  was  precifc  in  the  Time  of  H.  S    that  it  is  a  trood 

GifiofChiiitels   moveable  without  Writing,  as  of  a  Horfe  &c.    Ibid. S.  P.  Br.  Prerogative,  pL 

70.  cites  35  H.  S. 

2  If  the  King  grants  the  Reverfion  of  his  Tenant  for  Life  by  Patent^  this 
is  good  without  Attornment,  by  Realbn  that  the  Letters  Patents  ot  the 
King  are  Jllatter  of  Record.     Br.   Prerogative,  pi.  95.  cites  34  H.  6.  7.  8. 

3.  4  t?  5  ^K  B  M.  22.  No  Corporations,  Lords  of  Manors.^  or  others  hav-  This  was  a 
in?  Grant. f  by  Charter  or  other  good  Conveyances,   whu  ha-ve  inrolkd  and  had  'i'emporary 
the  fame  allowed  by  the  Court  of  King's  Bench,  pall  be  compelledto  plead  ^f^^f^'^l^, 
the  fime  to  any  Inquilition,  returned  by  any  Coroner.     Andij  any  Corpora-  "l^l}  ^^  -  qa 
rations,  Ltrds  of  Manors,  or  others,  have  cr  Jhall  have  fucb  Grants  jrc7xi  the  ^lf'.\.  cip. 
Croivn  for  Felons  Goods,  Deodands,    or  other  Forfeitures,   tiey pall  not  "i^i-  S.^. 

he  compelled  to  inrol  their  icholc  Charters  or  Grants,  but  i'uch  Part  thereot 
as  may  exprcls  the  Grants  of  fuch  Felons  Goods,  Deodands  and  Forfei- 
tures, and  no  more ;  for  doing  whereof  the  Clerk  of  the  Cro'xn  fhdll  receive 
20  s.  for  his  Fee,  and  no  more  ;  and  from  and  after  fuch  Inrollment,  they 
jhall  not  he  compelled  to  plead  the  fame  to  any  hiqaijition. 

4.  10  Ann.s  18.  Reciting,  that  fever al  Grants  have  teen  made  by  the 
Crown  under  the  Great  Seal,  Exchequer  Seal,  and  under  the  Seals  of  the 
Dutchy  of  Lancailefj  of  Lands  in  England  and  Whales,  to  take  Effect  in 
Poffefjton,  or  by  Way  0^  future  hit  ere fl,  tor  one,  two  or  three  Li\es,  or /or 
fome  certain  Term  of  7  cars,  not  exceeding  50  Years,  or  for  feme  other  FJiate 

and  Term,  not  to  exceed  3  Lives ^  or  50  Tears,  from  the  Date  of  fuch 
Grant  or  Leaf,  with  Covenants  importing  that  the  fame  ihall  be  inroUed 
before  the  Auditor  of  each  County  within  a  Time  limited,  which  have-not 
yet  hem  inrulled,  fo  that  the  faid  Leafes  are  void  or  voidable.  Ena£ts  that  all 
Perfons,  having  before  the  -^d  of  March  171 1.  omitted  to  inrol  fuch  Leafes^ 
pall  before  the  ■j,d  of  Afarch  17 12.  bring  them  to  the  proper  Auditor  to  be  in~ 
rolled;  and  that  in  fuch  Cafe  the  Leaj'e  fo  inroHed  within  that  Time  [hall.^ 
upon  the  Inrollment  thereof^  and  Payment  of  all  Rent  Arrear,  he  adjudged  to 
have  its  ^emg,  as  if  no  Forfeiture  for  Want  of  Lirollment  only  had  been 
incurred. 

Provided  that  this  Aif  pall  not  continue  any  Leaf  which  has  been  adjudged 
in  any  Court  to  be  forfeited. 


(M.  b.  8)    U^jere  GrniiUe  of  the  King  (JjhU  have  like 
Prerogative  as  the  King  lliould  have. 

I. '  I  1  H  E  Grantee  of  the  King  of  a  Ward,  or  of  his  Land,  of  whom  Br  Gard.  pN 
X     another  holds  by  Service  of  Chivalry,  with  Fees  and  Advowfon,  lliall  2S.  ci:esS.C\ 
have  Prerogative  i    fo  that   li  another  Ward  falls,  who  holds  of  the  firft 
Ward,  he  lliall  have  the  lalt  Ward  by  the  Prerogative,  tko  he  holds  of 

another 


96 


Prerogative  of  the  King. 


another  ly  Priority,  who  docs  not  hold  of  the  firfl  Ward,  by  Rcaf(-in  that 
the  King  rarnitns  Guardian  ;  and  Livery  lluill  be  fued  out  of  his  Hands, 
notwirhltanding  this  Grant  made  to  the  other  j  quod  notas  that  he  ihall 
have  Prerogative.  And  there  the  Grantee  of  the  King's  Grantee  Jhall 
have  the  Prerogative^  as  it  ieems  ;  lor  all  is  one  Reafon.  Br.  Preioga- 
tive,  pi.  17.  cites  12  H.  4.  18.  25. 
Pr.  P.itcnts,  2.  It  was  faid  by  Hill  J.  that  the  King  has  Prerogative,  that  he  fhall 
pl.^8.  cues    j^^^,^  ^j^g  jy^^^  ^^-^j^^  j^^^^, ^j- ^-^  cfciarit,  tho'  he  holds'of  him  by  Pcjeriority, 

and  yet  he  cannot  grant  it   to  another  by  Grant  of  the  Seigniory  to  a 

Subjetl :  for  he  Ihall  not  have  the   Prerogative.     Br.  Prerogative,  pi. 

18.  cites  14  H.  4.  9. 

Jvd  the  2-  It  was  held,   that   if  the  King  has  a  Rent-charge  in  my  Land,   he 

King  may     x\yxy  dijlrain  for  it  in  all  jiiy  Landhy  his  Prerogative;   but  his  Grantee 

3I1  'the    "     ^^^1  "0^^  (^o  fo.     Br.  Prerogative,  pi.  63.  cites  13  E.  4.  5.  &  6. 

Lands  of  his 

TzmM  tor  his  Service,   hut  his  Grantee  fhill    not  do  fo  ;   and  fo  fee  that   in  fuch  Cafes  the  King's  Pa- 
tentee fliall  not  enjoy  the  Prei-og.uive  of  the  King,  becaufc  he  is  a  Subjecl:.     Ibid. 

4.  If  the /\/>^  purchafes  a  Seigniory.,    of  which  Land  was  held  ly  Pcjle- 

rionty,   the  King  Ihall  be  in  a  better  Condition  than  the  Subject  from 

whom  he  claims,  and  pall  have  the  Priority.     And  ib  Ihall  his  Grantee 

alfo  in  fuch  Cafe.     5  Rep.  56.  b.  Mich.  30  &  31  £liz.  C.  B.  in  Knights 

Cafe,  cites  24  E.  3.  6$.   Fiti.  Tit.  Gard.  27.  47. 

D-5:5-  b.  5.  If  the  King  licenfes  A.  to  go  beyond  Sea  tor  a  certain  Time,  and 

P';  *j^  ~  P"  after  this  Time  is  expired  A.  is  commanded  under  the  Privy  Seal,  upon 

M.irg.  cites°  his  Allegiancej  to  return  to  England,  and  does  not  obey,  his  Goods, 

it  held,  that  Chattels,  and  Lands,  ihall  htfeifed  into  the  Hands  of  the  King/yr  this 

the  King  had  Coutcinpt.     And  it  was  refolved  by  all  the  Judges  of  England,  'That  if 

only  Veftu-    ^^   j^^  |.|^jg  Cafe,  has  a  Manor  where  there  are  Copyholds  and  i'lmber  fit 

andcouUnot^o  ^^  fi^^'^  ^'^^'^  '^^'if'^'i  ^1"^  the  King  grants  it  quam  diu  in   Manibus 

grant  Copy-  noftris  fore  contigerit,  it  is  good  ;  and  fuch   Patentee  may  keep  Courts 

holds.  Lady  in  his  own  Name,    and  grant  Copies,  a?id  jell  feafonatle'7'imter.     Jenk. 

Ballet's  Cafe.  ^^^^   pi.  3^^. 


(M.  b.  9,)     Grantee  of  the  King.     Li   cvhofe  Name  he 

fue  j    and  how. 


KIN( 
broi 


may  fiu 

G   granted  Annuity,  which  he  had,  over,  and  the  Grantee 
rought  an  A£lion  in  his  own  Name.  D.  i.  b.  pi.  7.  Marg.  cites 
3  H.  4.  8.  2. 

2.  If  the  King's  Grantee  of  a  Ward  be  oiiflcd  of  the  Land,  or  if  the  Rents 
(ire  levied  by  a  Stranger  by  Tort,  the  Grantee  pall  not  have  Trefpafs  in  Con- 
tempt// Regis,  but  Ihall  have  a  Writ  of  Ejeftione  Cuilodiae.  Br.  Ejeftione 
&c.  pi.  9.  cites  1 1  H  .  4.   64,  65. 

3.  Where  the  Grant  is  of  All  Ifp/es,  Fines,  Amerciaments  ^c.  and  that 
the  Patentee  may  levy  them  by  himfelf  or  by  his  Servants  i  there  the  Party 
may  collcft,  and  levy  it,  and  the  Sheriff  of  that  which  is  warranted  by 

*  All  theE-  i^l'>e  *  Grant,  fliall  have  Allowance  of  it ;  but  where  the  Grant  is  oi'  Fines 

ditions  are     and  Amerciaments  as  above,  without  the  Words,  (To  levy  them  by  him- 

(Grantee.)     fejf  or  his  Servants)  there  xk\t  Sheriff  jhall  levy  them,  and  the  Patentee 

jhall  j'/ie  to  the  Co//rt  for  them  by  Petition  ;  lor  they  lie  in  Allowance  by 

the  Jultices,  quod  fuit  concelTunii  quod  nota.     Br.  Patents,    pi.  4.   cites 

9  H.  6.  27. 

4.  The  King  has  a  Bond  by  Oi/tlaivry  of  an  Obligee,  who  grants  this 
over,  and  alfo  that  the  Grantee  may  fue  in  his  own  Name  i  and  fo  he 
did,  and  adjudged  good.     D.  i .  b.  PI.  7.  Mars;,  cites  19  H.  6.  4".  2. 

5-   A. 


Prerogative  of  the  King.  97 


( 


5.  A.  was  outlaw^i  for  7'reafoii. The  King  made  a  Grafit  to  B.   who  ^i'-  Co-.ifci- 

hroKght  a  Bill  in  Chancery  tor  certain  Goods  of  iuch  a  Value  agaitijl  C.  ^"""J^^,  [l  ^' 
■who  had  A's  Goods  in  his  PoJ[lffion.  'Twas  objccled,  that  their  Reniedy  Br  Cliofc  ki 
was  at  Law  by  Detinue  3  but  'twas  anfwer'd,  that  no  Action  lay  at  Com-  Action,  pi.  5. 
inon  Law  'till  Seizure,  or  finding  by  Matter  of  Record  i  but  however,  cites  S'.  c. — 
that  the  King  had  Election  to  proceed  at  Common  Law,  or  in  Equity  ;  ^^''.  ^^f^',/"^' 
And  the  Court  held,  that  Subpsna  lay,  and  ordered  C.  to  make  an  hiven-\"l^^y  orAt- 
tory  agaiiijl  the  nest  Day^  or  that  he  Ihould  be  lent  to  the  Fleet.  39  H.  6.  taind'ci-  ot 

26.  b.    \\alfw}n  V.  Smith.  ,  ^reafm  the 

Property  is 
in  the  Kirg  im  nediately  ;   and  the  King  may  grant  them  over  immediately,  and  the  Grantee  may  have 
an  Action  m  hi,  ov.n  Kame.     Br.  Forfeiture  tie  tcrrcs.  PI.  26.  cites  S.  C. 

6.  If  .Bo/;^  be  forfeited  to  the  King  by  reafon  of  Otithnvry^  and  the  t  Grantee 
King  gives  this  to  a  Stranger,  yet  the  Aclion  ought  to  be  lued  in  t^^e  |^j^ '."^.J^^e 
Name  of  the  King,  and  not  in  the  Name  of  the  Grantee  ;  but  if  thexhe  Defen- 
King  *  grant  Recvgni%ance  to  another,  he  Ihall  fue  this  in  his  own  dant  pleaded 
Name,  and  not  in  the  Name  of  the  King.  D.  i.  pi.  7.  Pafch.  4  H.  8.  the  Gr-int  in 
—The  fame  Dirierence  taken  by    Read    f.  Kelw.  169.  in  the  Prior  of  f^^"'^'^ '"-''^ 

„,  ,     „     .  J  ■>  ^  no  liar ;  and 

bheen  s  Cale.  thatnotuith- 

ftanding  the 
Grant  the  Kirg  may  fuc  in  Iii,<;  own  Name,  and  fo  may  the  Patentee  ;  but  by  Manv.ood,  Cli.  J.  after 
AiFignment  of  a  Bond,  perhap.s  the  King  cannot  fue  in  his  own  Name,  becaufo  'twas  not  origirully 
nlade  to  him.     Suvil.  2.    Lee  v.  Brierton. 

7.  ]&.  v,'ixs  attainted  of 'treafon^  ^n^  having  certain  Obligation^  Yvliich  Sav.  2.  fcems 
became  forteited,  the.King  granted  them  to  B  'j  IVifc,  it'itho/it  any  Words  ^°_^  ^^.^^^  q^- 
enabling  her  to  fue  for  them  in  her  oijon  Name.  She  brought  intbrmation  LeeviBriev- 
upon  them  in  her  own  Name.     It  was  ad)udg'd  (as  the  Reporter  lays  ton. 

he  heard)  that  the  Aftion  was  well  brought,  for  the  King  only  can 
grant  Chofes  in  Action ;  and,  by  the  fame  Reafon  that  he  has  granted 
the  Obligations,  which  are  the  Subltance  and  the  Original  of  the  Acti- 
ons, the  Law  implies  that  the  Grantee  Ihall  ufe  the  Means  to  come  ac 
the  Thing  granted  &c.  D.  30.  b.  pi.  208.  Hill.  2S  H.  8.  Breuerton's 
Cal'e. 

8.  A  Scire  facias  illued  out  in  the  Queen's  Name  to  fliew  Caufe  why       ?'  ,^" 
Execution  of  a  Debt  which  is  come  to  the  Queen  by  Attainder  oi   J.  S.  were/serV/i^ 
fliould  not  be  had.  The  Defendant  pleaded,  that  theQ^ieen  had  granted  iVords  in  the 
over  this  Debt  by  the  Name  of  a  Debt  which  came  to  her  bv  the  At-  Patentthathe 
tainder  of  J.  S.  and  all  Actions  and  Demands  &c.   Upon  which  the '^'|^|'^ '^"^'^ 
Plaintiff  demurr'di  and  the  Queftion  was.  If  the  Plaintiff'  might  fue  in  ^ame'^-^^but 
the  .Queen's  Name  without  fpecial   Words  ?    And  two  Precedents  were  this  was  not 
cited,  that  he  may.     P.  36  Eliz.  Rot.  191.    in  Scacc.     Where  Green,  pleaded,   and 
to  whom  a  Debt  was  due,  was  attainted,  and  the  ()ueen  granted  over  ['^1  ,^?'^'\ 
this  Debt,  and  all  Actions  and  Demands,  and  a  Scire  facias  was  fued  thathadit*' 
for  him  in  the  Name  of  the  Queen.     And  another  in  the  32  Eliz.   Rot.  been  plcad- 
219.  Mabb,  ol  London,  was  indebted  by  Bond-,    and  the   Debt  came  ed,  the  Suit 
to  the  Queen  by  the  Attainder,  and  Ihe  granted  it  to  B.  and  all  Actions  '^'S''':  be  in 
andDemands  ;  and  a  Scire  facias  was  iifued  in  the  Queen's  Naine  3  and  the  It!  ^^c^^ 

,    _    '  . .  J       ,  111  ^1  r   \%  r       1  Name,  tor 

principal  Gale  was  adjourned  ;  but  the  J  atentee  had  expreis  Vv  ords  to  fhe  had  Li- 
lue  in  the  Queen's  Name,  tho' it  was  not  pleaded.     Ow.  113.   Pafch.  beny  to 

36  Eliz.  Alien's  Cafe.  ?'-ant  to  fue 

m  her  Name. 

Cro.  E.  ^2^.  S.  C So  where  the  Grant  was  to  fue  in  the  Name  of  the  ^een  njid  her  Sunejfcrs,  it  is 

a  good  Warrant ;  and  in  a  fueceejing  King's  Time,  ail  Proccfs  fhall  be  made  in  tlie  King's  Name,  as  if 
no  Grant  had  been  made  thereof.    Cro.  J.  82.  Mich.  5  Jac.  in  Scacc.     Tlie  King  v.  VVendman. 

9.  A.  vccovevs  Damages  in  Jifion  Sur  Cafe,   and    afterwards  is   out- Savil  15-. 
law'd. —  The  King  grants  them  over. —  The  Grantee  may  levy  this  iT°    ^p^^" 
Debt  by  Action  in  liis  own  Name,  or  by  Plxtent  in  the  King's  Name, 

tho'  he  has  no  Words  in  his  Grant  to  fue  it  in  the  King's  Name  as  is 
ufual  in  fuch  Cafes.  But  an  J[fignment  over  of  this  Debt  by  the 
Grantee  to  another  is  merely  void.  Cro.  J.  179.  Tiin.  5  Jac.  King 
V.  Twync. 

B  b  10.  A 


98 


Prerogative  of  the  King. 


10.  A  Scire  facias  is  a  Writ  of  Right,  where  the  Patent  ts  prejudicial  to 
a  Siibjeti  ;  and  the  Crown  ought  to  fulfer  the  Subject  to  ufe  their 
Name.  Arg.  by  Northey,  Attorney-General  (cites  D.  197,  198.  n 
Rep.  74.  8  Rep.  Prince's  Cafe.  Fit^h.  tit.  Brief  651.  2  Vent.  344.  Sir 
Oliver  Butler's  Cafe.    3  Lev.  220.)    10  Mod.  260.   in   the  Cafe   of   the 

Queen  v.  Aires. Adjudged  Hill.  3  Geo.  i.  10  Mod.  354.  E.  R.  The 

Cale  ot  the  Queen  v.  Aires. 


See  (T.b.)  (N.  b)     Grants   of  the  King.     EjJfe  Suggejlion. 

s.p.  And  if  I.  tJT  tljc  6riiitt  of  tfjc  %m>  tc  uoon  a  fitlfc  ©utjgcilioa  it  is 

theSuggefti-       J-  void,    feCCflUfC  tDCl^ing;  igi  5CCCt\)CD»     €a,  n  ^^XX  tA  Devon. 

on  rc!ls  in      qq_ 

Articles,  if 

any  of  the  Jrticles  are  filfe  the  Patent  is  void.     Br.  Patents,  pi.  4S.  cites  5  H.  7.  6. 

Tenk  16  ^*  ^^  ^^^  ^'^^  ^"^^  ^°  ^^^^  ^^'"^  ^^  Petition  to  have  a  certain  Ma- 

pi  60    cites  ^"''5  '^^^  ^''^^'^  i'^  tOC  ji^CtltlOJt,  ttjat  it  is  worth  but  10  1    per  Annum, 

9  H.  6.  Le-  nno  tljeretipon  tlje  patnit  10  tjtanten ;  if  it  be  of  the  Value  of  40 1. 

gat-s  Cafe-  fljE  \^m\\t  t^  llOItl*      9  ip*  6.    28  t).    C0»  Io>  Sttlj*  I^^^^r.  112. 

S.  p.   It   the 

Difterence  of  the  Value  be  found  after  by  Matter  of  Record.     Br.  Patents,  pi.  4  cites  9  H.  6.    27.  per 

June.     But  falfeCoiifiderathn  in  a  Patpnt   will  not  avoid  the  Patent ;  Js  if  the  King, in  Confideration  of 

100  /.  to  him  paid  &c,  grants,  where  he  paid  only  60 1,  yet  the  Patent  is  good.     Br.  Patents,  pi.  4.   cites  it 

as  lb  faid.  3;  H  8.  Br.  N.  C,  57  H.  S.  pi.  510. 

Jenk.  504.  3»  So  if  tlje  King  has  Title  an5  Higljt  to  Land,  of  which  A.  is 
H  "7-  ^es  feifed,  and  after  A.  is  attainted  of  Treaibn,  bp  Ul!)iCl)  tJjC  King  feifes, 
^  Rep  40  if  3i  f^e  to  the  King  to  have  this  SPitnOt,  which  comes  to  him  by 
b.   Alton-     Caufe  ot  Treaibn,  anD  PatCltt  \^  tliaQC  aCCOrBtltglP,   it  Ig"  l50l5,    9 

wood's  Cafe.  J),  6,  28*  fa»  fot  tl}€  falfc  ^uggcftioit* 

■ 10  Rep 

109.    Arthur  Legat's  Cafe. Br.  Patents,    pi.  4.  cites  S.  C.  per  June. Br.  N.  C.  57  H.  S- 

pl.  510. 

See  (C>:b)        4,  31f  g  Leffee  for  40  Years  Of  a  ^l^ill  ant!  rpOllft  leafe  the  Houfe 

pi.  I.  for  20  Years,  and  then  furrenders   to  the  King,  and    tyCrCtU    recites, 

that  he  has  all  the  Ellace,  '^ItlC  3110  ^tttCtCft^  iUtjtCt)  tljC  fitft  ICflCC 

ijaO,  aim  lUljiCf)  ilS  contained  in  the  Patent ;  ant!  tDeteiipOn  tije  King 

grants  a  new  Leale,   ll))  OtllEl*  i^atCnt,  to   him   v\  ho   furrender'd  it  ; 

Cljigi  i0  iJOitJ  bccaufc  tljc  Hecital  isi  faUe,  inafinncl)  m  Ije  Ijao  but 
ti)c  Reucrfion  of  i5art,  anti  tw  \^  tijc  ©uixscffion  of  tije  pactp* 
ergo*  p»  10. 3a»  %mz.  bcttuecn  Sa^^jycr  anD  Eafl.    aojutsgeti* 

5.  In  Affize,  'twas  found  by  Verdift,  that  L.  enfeojf'd  the  Earon  and 
Feme  in  Fee,  and  after  the  Baron  was  found  gailty  of  Felony,  and  ar- 
raign'd,  and  he  took  to  his  Clergy,  and  was  deliver'd  to  the  Ordinary, 
for  which  the  Tenements  were  delivered  into  the  Hands  of  the  King.     And 
after  the  Baron  broke  the  Prifon  of  the  Bilhop,  and  the  Lord  faed  in  Chan- 
cery to  have  the  Land  by  Efcheat  out  of  the  Hands  of  the  King,  and  had 
it,  and  a  Writ  fent  to  the  Efcheator  ;  and  becaufe  the  Feme  had  a  joint 
Eitate  with  the  Baron,  and  the  'Tenements  were  deliver'd  out  of  the  Hands 
of  the  King  by  falfe  SiiggejHon,  this  Suit  was  adjudg'd   Diffei/in   in  the 
Lord,  who  entered  by  this  Livery,  and  the  Feme  recover' d  ly  Azvard  i    and 
becaufe  Ihe  brought  the  Afftfe  as  a  Feme  file,  and  the  Defendant  pleaded  to 
it  as  to  a  Feme  file,  therefore  it  Ihaii  not  be  argued  whether  the  Baron 
be  alive  or  dead  ;  and  therefore  it  feems  that  the  King  docs  not  make 
[Claim]  but  for  the  Year,  Day,  and  VVafte,  and  then  the  Entry  of  the 
Lord  by  the  Li\cry  obtained  by  : he  falfe  Sitggeflion  made  the  Dilleifin, 

and 


Prerogative  of  the  King.  pp 


and  there  was  no  Diiieilin  during  the  PolFelfion  of  the  King,     Br.  Alfile. 
pi.  1 14.  cites  4  All".  4. 

6.  tenant  m  -laiky  t\\c  Rcverfton  to  theKiug  pnnhas'd  Lhenfe  to  Alieii 
in  Fee,  and  to  retake  Kftate  to  himfelf  c'.nd  his  Feme  tti  I'aile,  the  Rcm.^in- 
der  to  his  Right  Heirs.  This  Licence  lb  purchas'd  by  tiiifc  Suggcltion 
is  void,  and  the  Alienation  is  no  Dijlontiniiance  of  the  Re'verfton  of  the 
King,  where  the  King  is  deceiv'd  in  his  Licenie.  Br.  Dilcoatinuance 
de  Polieliion.  pi.  16.  cites  40  AiT.  36. 

7.  If  a  Man  makes  Suggeltion  to  the  King  to  have  an  OiHce,  and 
obtains  it ;  if  the  Suggcltion  be  fdlfe  the  Fatent  is  void;  becaulc  the 
King  is  deceived  in  his  Grant.  Br.  Patents,  pi.  26.  cites  37  H.  6.  27. 
perBillinge. 

8.  A'latter  in  Faif  cxprefs'd  in  the  King's  Patent,  which  is  fa/fe,  Ihall 
not  prejudice,  nor  is  it  material ,  As  ij  the  King  reciting  in  his  Patent 
the  good  Service  which  J.  8.  has  done  him  ultra  Mare,  or  the  like 
grants  to  him  fuch  Land,  '■jjhcrc  in  fatl  he  did  no  fiich  Service,  yet  the  ' 
Grant  is  good.  Per  Kitz,herbert  Juitice  Qmod.  Mirum.  For  it  appears 
elfewhere,and  in  9  H.  6.  28.  that  it  the  King  makes  a  Grant  upon  falfe 
Suggejiton,  which  is  only  Matter  in  Fa6t,  the  Patent  is  'void  ;  but  Brook 
fays,v there  feems  to  be  Diveriity  between  _/<^^-  Sitggejiion  a.Vid  falfe  Conji- 
deration.     Br.    Patents.    PI.  i.  cites  2  j  H.  8.    i. 

9.  Haule  had  a  Dutchy  Leafe  gotten  upon  uiitrae  Sarmifes,  and  the  King 
beftow'd  the  Land  upon  the  Earl  of  Devon  for  his  Service  done  in 
Ireland.  This  Leafe  the  Earl  fought  to  avoid  by  Law  i  Haule  prays 
to  have  the  Matter  examined  in  Chancery,  and  to  have  the  Suit  itav'd 
by  Injunction  ;  which  was  denied^  for  that  the  Leafe  was  granted  by 
Fraud,  and  the  Fee  Siinple  to  the  Earl  in  Pollelfion,  and  not'in  Rever- 
fion  ;  and  nota,  that  the  Lord  Chancellor  laid,  That  where  Lands  are 
granted  in  Reverlion,  if  the  Grantee  will  avoid  the  Leafe  for  a  Kent 
paid,  but  not  at  the  Days  in  that  Cale,  he  wiit  relieve,  but  not  where 
the  Leafe  is  granted  upun  a  wrong  Suggeltion,  tor  that  were  to  relieve 
Fraud  in  Chancery.     Gary's  Rep.  45.  cites  23  Jan.  i  Jac. 

10.  King  Ph.  and  Queen  M.  feilcd  of  the  Manor  of  Wimondham 
in  the  Right  of  their  Crown,  ex  fpeciali  gratia  &c.  granted  to  G.H. 
(inter  alia)  omnes  illas  duos  pccias  terne  nojiras  called  hi .  and  ff.  lying  in 
W.  noiv  or  late  in  the  Tenure  of  J.  C.  &c.  .®//^  qtiidem  omnia  *  a  nohis 

Sc.  concelata  8c  detenui  &c.   and'  it  was  tound  by  Verditl,  that  the  5  p-^"^-^^*- 

Adanor  was  wo?  fo//a'^/f^  or  detained  troni  the  King,  ^,7?  that  it  was  in 

Onere^  Compute,  and  the  Rents  and  Protits  wem  paid  to  the  King,   except 

only  of  the  faid  two  Parcels  of  Lands  which  were  not  paid  to  him.    It 

■was  adjudged,  that  the'  the  Grant  was  ex  certa  Scientia,  Gratia  Ipeciali 

&  mero  motu  ;    and  nocwithltanding  the  Certainty  as  to  the  'I'hing, 

the  Quantity,  the  Ville,  the  County,  the  Occupation,  and  the  Title  i 

yei  k  be'in^  made  upon  a  falfe  Si/gge/ho/i  of  the  Party,  that   the   Manor 

was  concealed  from  the  King,  when   in  truth  it  was  not,  the   Grant 

•was  therefore  void.     10  Rep.  109  &;c.  Mich.  10  Jac.  C.  B.  Arthur  Le- 

gat's  Cale. 


(N.  b.  2)     Falfe   Suggeftlon.      Pmiipment  thereof. 

Mejue   Piifjits. 

I.  '  I  TENANT  of  the  King  in  I'ail  obtained  Licence  to  alien  in 
1  Fee  to  two,  and  retook  ot  them  by  Fine  for  Life,  the  Remainder  to 
E.  and  J.  his  Feme,  and  to  the  Heirs  of  £.  who  was  Son  of  the  Jirji  Feof- 
for, who  was  T'cnant  of  the  King.  The  Feoffor  died,  and  E.  his  Feme  got 
Livery  upon  Office  found  ;  and  after  Fine  was  loand  in  the  Treafury,  by 
which  it  appeared,  that  the  Feoffor  had  nothing  but  in  7'ail  at  the  Time  of 

the 


xoo  Preroeative  of  the  Kin^ 


the  Alienation,  which  was  fent  into  Chancery,  and  irom  thence  by 
Writ;  whereupon  Scire  tiicias  was  awarded  aguinlt  Baron  and  Feme, 
if  thev  had  any  Thing  to  lay,  why  the  Land  fhould  not  be  rcfeifed 
according  to  the  Statute  ot  Lincoln,  and  to  remain  in  the  Hands  ot  the 
Kmg  during  the  Nonage  ot  [E.]  who  is  within  Age,  and  Heir  to  the 
Feoiibr  j  and  it  was  releifed  by  Award,  becaufe  ihc  Licence  ivas  void  i 
tor  the  King  was  deceived  in  his  Grant,  inafmuch  as  he  knew  not  but 
that  the  Feoffor  had  been  leifed  in  Fee,  quod  nota  i  and  it  appears  often 
in  the  Book  of  Alfifes,  that  Licenles  obtained  upon  lalie  Suggeftions 
are  void.  Br.  Alienation.  PI.  28.  cites  21  All".  15. 
Br.  Ifmes  ^   Su2;e;ellion  was  made  in  Chancery-,  that  Tenant  in  Tail  the  Rever- 

YPT       Dili  00  ,  —.-■'^, 

ciies&C—J''^"  ?o  tts  King  piirchajed  Licenfe  ot  the  Kmg  to  alien  in  Fee,  and  to 
Br.  Alicna-    retake  to  him  and  his  Feme  in  Tail,   the  Remainder  to  his  right  Heirs  j  the 
ion.   pi   i;-  which  was  obtained,  and  the  Ellate  made  accordingly;  iht  Baron  died, 
R^-^nr    ~  ^^'"^  Feme  married  K.  and  alter  the  Feme  died,  and  Scire  jacias  ijfued  upon 
tiniiance  de    ^^^  Suggeltion  againfi  K.  to  fay  why  the  King,  who  now  has  the  Ward  of 
Poffeffion.      the  Heir  of  the  Jirfl  Baron,  poiild  not  be  reflored  to  the  Iff  lies  for  the  Time  of 
pi.  16.  cites    the  Nonage  for  the  Time  which  K.  occupied  ;    and   becaule  this   Licence 
^-  C.— Jcnk.  ^^^  jj^  Deceit  of  the  King,  and  his  Keveriion  by  this  not  difcontinucd, 
ci^cs  S  c'"    ''^  ^^s  awarded,  that  in  Right  of  two  Parts  ot  the  Land,   he  Ihall  be 
charged  tor   the  Time  which  he  occupied,  and  that  of  the  third  Pare 
he  IhaJl  be  difcharged,  becaufe  ot  this  the   Feme   was  Dowabie.     Br. 
Patents,     pl.  37.  cites  40  AlF.  36. 


Sef  (P.  b) 

DiletTce'to  (O-  b)      I"  ^^^^^  Cafes   the  King  fhall  be  faid   to  be  * 

be  obfervcd         dccehcd  In  his  Grant,     \aml  lo  th  Grmit  void.~\ 

111  all  Caies  '        i-  J  -i 

where  the 

King  is  faid  I.   f  T  Jf  tIjC  1^1110;  grants  an  Office  for  Life,  and  after  grants  it   in 

tobedeceiv-  i-  Keverfion  to  B.  which  is   void,    and  afterwards  recites    the 

G  ant  -If    Grant  to  B.  as  a  good  Grant,  and   grants   it  to  commence  after  it,  X\)Z 

thlf Matter  1^1110;  ts Dccciucti  iiuijiss  laft  «grant,  ann  tljcccforc  uoiu*  Co*  lu 

yhichisfalfe^UXlltOC  Cltrle.  4.  tJ» 
in  the  Let- 
ters Parent  he  fi:ggefted  or.  the  Part  cf  the  Grantee,  and  that  to  the  Prejudice  of  the  King,  there  the  King 
fliall  be  faid  to  be  deceived  in  his  Grant  lb  as  to  make  it  void.  Adjudg"d  12  Mod.  78.  Trin.  7  W.  & 
M.  King  V.  Kemp.  —  But  where  the  Words  of  the  Letters  Patent  are  IVords  of  the  King,  altho'  tlie 
King  appears  ky  his  Inference  to  be  mijlaken  even  in  his  Laii;  yet  the  King  fhall  not  be  faid  to  be  de- 
ceived fo  as  to  avoid  lii-.  Grant  If  the  King  grants  an  Eftate  in  Pojfcjjwn  when  he  intends  only  to  grant 
it  in  Reierfion,  or  where  the  Thing  granted  is  of  a  greater  Falue  than  it  appears  in  the  Grant  to  be 
of,  thefc  are  Suggeftions  of  the  Grantee,  and  the  Death  of  the  King  in  thefe  Cafjs  fliall  mike  the 
Grant  void  ;  bu:  if  the  King  be  not  deceived  by  anyMatter  fuggelled  by  the  Grantee,  but  is  017/y  mijl.iken 
in  his  oun  Affirmation  orSurmifes,  ^hho'  h  he  in  the  Law  itlelf,  lucli  Grants  are  good,  and  fuch  Con- 
ftruttion  cf  them  fhall  be  made  as  tend  to  their  Support  ;  and  upon  this  Difference  the  Books  are 
plentiful.  §  H,  7.  9.  Dy.  19;.  b  552.  a.  2  Cro.  54.  2  Brownl.  2.42.  11  Co.  Auditor  Curie's  Cafe. 
Jilod.  Kep  197.  So  that  where  he  is  not  fo  deceived,  the  Grant  fliall  not  be  void,  if  by  any  Con- 
Jlruftion  it  can  be  made  good.     Adjudged  12  Mod.  78.  Trin,  7  W.  8c  ^L    Tlie  King  v.  Kemp. 

t  A  has  Office  for  Life,  the  King,  reciting  the  Grant,  and  that  J.  is  aiive,  grants  the  fame  to 
E.  of  R.    for  Life,  without  faying.  After  the  Death  &c.  of  A.     This  Grant  is  good  to  commence  after 

the  Death  &c.  ot  A.     S  Rep.  55.  Earl  of  Rutland's  Cafe. S.  C  cited  12  Mod  79.  in  the  Cafe  of 

the  King  v.  Kemp. 

The  King  may  grant  an  Eftate  in  an  Office  to  commence  in  future,  or  upon  a  Contingency,  which 
Eftate  fhall  arife  out  of  the  Inheritance  he  hath  in  the  Office  itfelf ;  for  fuch  he  may  have  in  Point  oF 
Intercft,  tho'  not  in  Execution.  P«r  Curiam.  4  Mod.  2S0.  Pafch  6.  W.  &  M.  B.  R.  in  the  Ca'e  of 
the  King  v   Kemp. 

The  King         2»  Jf  tIjC  Kl'UtX  cx    gratia  fpeciali    grants  Licence  tO  "B*  to  nlien 
granted  to     certain   Land  in  Mortmain,  15.  UUIP  alfctt  tIjC  lanQ  lit  S|50rtmai!!  In* 

LddeglfZ  ftTf"  of  tljt0,  tljo'  i}e  \)mn  it  of  ti)cUinff  in  cljicf,  nno  tijc  i:\in5f1jaii 
loflra  fpeciali  tiot  Uc  laiB  to  l3c  Occci^cD.   41  2^.  16.    atijUDOieD* 

CoKceff'   &c. 

Cjuantura   in  nobis  eff,  that  he  may  Pivr  a  Hoiije  in  E-  to  the  Ahhot  of  F.  and    the  Houfe  ivr.s  held   of  the 
Kin",  and  no  Menlim  that  he  loa)  give  &c.    tht,'  it  he  held  tf  us  in  Ca'>ttr  ;  and  fo  .lie  Ki^'g,  no:  aoori.^'.J 

of 


:e 


Prerogative  of  the  Ivin^-.  loi 

o v-2 

of  hi^  Grant.     Bvit  Per  Knivct.    Ch  .  J.  the  Grant  is  good  ;  for  the  Intent  of  the  King  appears.     Br. 

Patent.s.  ul.  5S.  ciucs  41  All".  19. So  wlierc  t-n-o  Alinon  arc  held  of  the  Kirifr,  the  or.c  in  Chiv^iry,  the 

other  in  S,cas,e,  and  the  Kino;  tyrants  by  If  orih  as  above,  th.it  he  ni.vf  awortife  both,  this-  is  good  ;  and  yet 
the  one  Mai'or  i.s  a  greater  Lofs to  the  King  than  the  other;  and,  becaufe  i:  was  the  Will  of  x\w  King, 
that  the  Houfe  fliouM  be  amortis'd,  and  the  Grant  is  dc  Gr,itla  Jpeaalij  therefore  it  was  awarded  that 
the  Grant  was  good.  Ibid. 

3*  Jf  tIjC  King  prefents  A.   and  upon  RefuHiI  brings  Quare  Impedic,  SeeCC^b.  z) 
and,  pendiniJ;  thi.-,  B.  procures  Letters  Purents  toprcient  niiiifell',  with-  P'j  5- 
out  mention V  the  firit  Prelentment     autl  ti)t3  13  ObtaillCti  bp  JfraUC,  ,,,e  of  Yul 

ann  m  Deceit  of  tije  l^mn;,  it  is  a  noiD  prdciitineat,  nna  tijcrctoic  ton  &c.can-. 
fliail  not  repeal  tlje  ftrft*   £)p*  17  €U  339*  47*   i^iUjuiiCD.  to  theouecu 

by  l-aplti,thi; 
Bifhopofthe  Dii'Cefe  collated  L.to  it  by  L3pfe,3nd  afterwards  the  Queen  prefented  ore  to  tlicV'iearage, 
\v  ho  brought  a  Qiiare  Impeoit  ag.unft  the  Bifliop  a.,d  his  Collatce ;  pending  w  liich  Suit,  the  CoUatee  by 
Fraud  /tnd  Coziyi  :btai}:ed  a  Prefty.t.ituii  jroiii  the  ^;ccr:,  z'^itlout  niehttoi.iyio  I ev  Ple.ijiire  to  revoke  thefrft 
Prejhitaticn.  The  Queen  by  Letter  certify 'd  the  C^ourt,  that  flic  had  forgot  her  former  Prefentation, 
and  fiid  her  Plealure  wiis  that  it  fliould  ftai-.d  ;  Judgment  was  given  for  tlie  Queen,  becaufe  the  Fraud 
and  Deceit  made  to  thcQueen  was  conteli'd  bv  L'»  Demurrer,  tho'thc  Notification  of  it  was  not  under 
theG-e.it  Seal.  D.  5;9.  b.  pi.  4-.  Hill.  17  Eli/..  The  Vicar  of  Yatton's  Cafe.— £«<  if  the  King 
prefents  one  to  a  Benefice,  and  before  Admifion  he  prefents  another  liiihoin  Fraud  or  Covin  in  the  fctond 
f'trfer.tee,  this  is  a  good  Revocation  of  the  firfl  Prelentment,  vvitliout  exprcfs  Claufe  of  Repeal  in  thc_ 
Patent  ;  but  /f  the  Jirfi  Frejei.tcf  be  admitted  and  irftituted^  then  'uch  fecor.d  Pteliintation  is  no  Repeal  ot 
the  fernier  Prefentmcat,  without  a  Recital  thereof,  and  of  the  AdmifTon  and  Infii.ution  thereupon  ;  and 
aKb  there  ought  to  be  cxprcfs  Claufe  of  Revocation  of  the  faid  firll  Prelentment,  and  of  the  Admiffioti 
and  Inffitution  thereupon,  menf'on'd  in  the  fecond  Letters  Patents  of  Prelentment ;  and  this  iJitierencc 
was  adjudg'd.  D.  a9<,.  b.     Marg.  cites  Pal'ch.  9jac.  in  the  £xchei;uer.  Calvert  v.  Kitchen. 

4.  Jf  tfjC  King  prefents,  ;ind  after  repeals  it,  and  gives  Notice 
thereol:  to  the  Ordinary,  and  yet  the  Ordinary  alterwards  inititutes  and 
inducts  him  j  and  after  the  King  recites,  that  where  the  incumbent  was 
Canonice  Inltitutus  of  his  Prelentment,  he  confirm;;   ic  tO    ijilll  fOf  l)td 

Life*  C|)i0 10  a  noin  Confirnuition,  because  Vcz  Eimj  ii?  oeceiuco, 
inafiiiuci)  as  \)z  luajs  not  inftitutcB  of  ijis  |3i-creatmcut»  0. 12*  CL 
292, 70*  siDjutiixcn*  25  (L%  3»  4-.  a'ojiiugcc. 

5.  So  it  UJOUlQbCin  tijC  C-llti  QLdxt  if  the  (,'rdinary  after  the  Re- 
peal matie,  ^ind  before  Notice  Of  It  tO  ti)C  CT'Oinarb,  had  inltituted 
and  indui^ed  him  ;  jfor  tijS  Bd^tXtt  13  CUlp  UiatCaaf  tO    UiakC    tijC 

fiDrCinati'  a  Diffurbec.  D.  12  ei*  292*  70*  25  c>  3»  47*  ^'0= 
)UDgeri.   an^  no  iSoticc  alfcffcH* 

6*  3f  a  Benefice  above  the  Value  of  20 1.  per  Annum,  comes  to 
the  King  byLapfe;  aul!  rhe  Ch.mcellor  being  informed,  that  it  was 
under   the  Value  of  20 1.  prefents  to  it  under  the  G:eat  Seal,    antl  t!je 

l^rcfeutee  thereupon  mSttutcti  atiti  mtiiscter!,  i)t  cannot  be  after^ 
toarJ.si  reuioi3cti ;  for  tijc  l^refentmeut  10  by  t;)c  iAiniT,  bcinix  tiii=  ]enk~2c7z  _. 
tjcr  ti}e  *©rcat  ^cali  nuo  tijere  10  not  ano  ■Oiftcrnux  m  Jronn,  pi.^^.s.c. 
tui)cn  It  10  for  tljel^imx,  ann  irifienfor  tIjc  (iTtvauxilcr,  faiMng,  tUat  ^^- P' ^^s  re- 
fer tl)c  molt  Part,  tije  one  is  Mandantis,  an;:!  rijc  otijer  10  Ko-^''yi,,\°"°- 
gantis,  tIjc  Confuficn  of  iyi)iclj  iDorss  are  not  of  any  foment*  ardTanhjLi 
l)nh,  K,  289*  iLom  Cl)an£elIor'0  Cafe,   "^  C*  272,    '  ch.  b.  to 

certify  wlvj- 
tlier  this  was  merely  void.  [The  Book  favs]  It  remain'd  good  'till  it  was  avoided,  ^^'inc!l.  19.  Trin. 
19  Jac.  Parliin  and  Worlee'.s  Cafe..^  [*  The  Letter  ^C)  fecms  to  Hand  for  (,Ca!e,)  but  if  lb  it  ii  mil- 
printed,  and  fhould  be  (Cafe  27 5.)] 

7.  But,  ilttljCfaiD  Cafe,  if  the  Prefentment  ttfcif  Un^Ct  tIjC  ©teU  .M-i9ipl. 
^Cal  had  recited,  Th;tt  the  Benefice  had  been  under  the  Value  ot  20I.  ^^'   ^- ^ 

tijcre tijc t^refcntment  Ijan  bcennoir),  becaufe  tijere  t!jc  £^ina;  mas"]  .~''^c 
teccineo*   Dob,  E.  289.  C,  272,  >-  -.  ^  -  •• 

8.  Where f/:'e  ^'Jf^^'P  ^/  ^^'-  ^"-'^  Contifaiice  of  Pk/?s,  Fities.,  and  Auie;-- 
ciaments  in  D.  and  the  King  had  it  I'anipure  Vacattonis.,  and  granted  them 
to  the  Mayor  and  Bargejlcs  vj  D.  a  Scire  Facias  illued  againlt  them  to  re- 
peal the  Patent,  becaule  the  King  wasde.eived  in  his  Or.mt.  Br.  Prero- 
gative, pi.  99.  cites  16  E.  3.  unci  Fitzh.  Driefdj'i. 

C  c  9.  To 


1 02  Prerogative  of  the  King-. 


H.  A.  6.  'To  the  lutein  that  the  King  might  not  hercajier  he  deceii\clift 


fti-aincii  bv     Aden   of 

this  Statute    f}i-vif!g  akvajs  his  Liberty. 

concerning   '       Jn  a  Petition  to  the  King  for  Lands.,  Annuities,  Offices   ^c.   their  Value 

Grants  by  n^^  y^  therein  exmijed  i  otber-joifc  the  Letters  Patents  thereupon  hadfiall  be 
the  King.       -'     .  ,  ^    -^ 

S  P.  Ijr.  Li  10.  The  King  ^r^»fc^  the  Land  in  Wardto  one  for  Life^  iheRejnainder 
very,  pi.  \6.  g^^^y  iff  fee,  and  was  deceived  in  his  Grant,  and  therefore  he,  at  the 
cixs-H.4.  Suit  of  the  Heir,  by  Scire  fieias  repealed  the  Letters  Patents,  and  re- 
'^'  ■"'■  fumed  the  Land,  and  made  Livery  to  the  Heir ;  quod  Noca.  Br.  Patents, 

pi.  10.  cites7  H.  4.  42,  43. 

1 1.  If  the  King  be  feized  of  an  Jdvoivfon  in  Fee,  Axxd.  grants  it  to  J.  S. 
Habend.  after  the  Death  ff  W.  N.  this  is  a  void  Grants  Becaufe  he  is 
leifed  in  "Fee,  and  has  no  Reverfion  therein.  Br.  Patents,  pi.  29.  cites 

38  H.  6.  34.  35- 

12.  If  the  King  gives  Land  to  IV.  N.  and  to  his  Heirs  Male,  the  Patent 
S. P.Forrhls  is  void,  and  he  is  only  a  Tenant  at  Will;  for  the  King  is  deceived  in 
loundMnFee  j^jg  Grant.  Br.  Eftates,  pi.  84.  cites  18  H.  8. 

f>imple,  .      . 

■whereas  it  Teems,  the  King  intended  only  anEfi.rte  'faile.  which  is  not  fo  exprefTed,  and  therefore  now 
he  is  only  Tenant  at  Will;  but  contra  m  the  Caie  of  a  Common  Perlbn.  Br.  Patents  pi.  104.  cites  S.  C. 
Level's  Cafe. 

*  y/jifthe  J  2.  The  Qiieen  by  the  Words  of  Ex  certa  Scientia,  6?  mero  mot  11^ 
'^^^7.  R'''"*'  granted  to  A.  the  Manor  of  D.  which pc  had  by  Attainder  of  Sir  T.  Wyat; 
n/«  J^r'and  whereas  in  Truth,  jhe  was  feifed  by  Defcent.  Dyer  thought  the  Grant 
there  is  vot  void,  and  Brown  and  Wellon  J.  agreed.  That  it  was  void  at  Common 
any  fiuhJiU,  Law ;  For  in  every  Cafe  where  the  King  is  deceived  in  himfelf,  or  of 
^"■'^(f'b""  the  Information  of  the  Party,  the  Patent  ihall  not  be  allowed  contrary 
the'"st'atLue^,  to  the  King's  Intent ;  But  in  this  Caie  the  Patent  is  f/pplyd  hy  the  Statute 
becauic  tlie'  of  Afifrecita/s  ;  for  when  the  Stdillance  yf  the  Thing  granted  appears  cer- 
Name  of  the  ^^j/./A,' the  *  Statute  lupplies  all  other  Detects.  Mo.  45.    pi.  137.    Mich. 

Manonscer.      c;ii2_Anon. 

tain  enouf;li ;  J 

But  ivheiuhe  Certainty  of  the  ^hing  granted  does  not  appe.tr,  it  is  otherwife  ;  as  where  the  King  grants  an 

Jdv(Ki-fon  appendant,  where  it  is  in  Gnfs,  it   does  not   pafs  becaufe  it  is  not  the  lame  1'hing.  Ibid.  .5'^ 

if  the  King  grants  tlie  Jlanor  of  D.  in  fiuh  a  County,  where  there  are  two  Manns  of  the  fame  Name  in 
the  fame  County      Ibid. 

*  This  Ilea-  14-  The  King  was  feifed  of  the  Manor  of  Torrington,  with  a  Market 
fon  does  not  held  every  VVeek  on  Saturday,  and  a  Fair  inVigilio  Fefli  S  Crajiino 
appear  in  ^  Sanifi  Michaelis,  and  incorporated  the  fame,  &  ex  certaScientia  granted 
^'^"^SC^"  to  them  to  have  a  Market  every  Saturday,  and  two  Fairs  every  Year, 
cited  bv  '  ^"^^  ^^  Vtgilio  Pcjli  t?  Craftino  Sancii  Michaelis,  and  the  other  on  the 
Coke  Attor.  F"eall:  of  St.  George  the  Martyr.  Adjudged,  I'hat  this  Grant  was  void  i 
Geiv  Arg,  For  the  King  was  *  not  apprized  o'l  what  he  granted;  For  his  Intent 
f"  ^'■.'''j^  w^s  ex  fpeciali  gratia,  &  ex  certa  Scientia,  to  grant  a  nezv  Fair  at  Mi- 
tkint'vas  chaelmas  i  and  not  to  grant  that  Fair  which  they  had  before.  Nell".  Abr. 
adjudged       900.  pi.  2.  cites  Dy.  276.  the  Cafe  ofTorrington. 

upon  Scire 

Facias  in  Chancery,  in  19  Elii.  That  the  ^leen  having  a  Fair  in  Torrington,  tobe  held  in  the  Feaft  of 

St.  Michael;  She  incorporated  the  T'own,  and  ivithout  rnetitionins;  her  Fair,  {he  granted  to  the  Corio- 
ration  to  have  a  Fair  to  be  held  in  l'!:^!ha  in  Fefio  &=  in  Craflino  &c.  and  adjudged  the  Grant 
void,  hy  the  Affiftanccofthe  Judges;  Becaufe  the  Queen  is  to  have  the  Old  Fair,    and  to  the  Grant 

void,  and  then  no  Fr.ulions  can  be  to  gi'-je  a  Fair  to  the  Corporation  in  fXriliaQp  Craflino. D.  2-6.  pi.  52. 

is  tiiat  the  Queen  granted  to  the  Corporation  a  Market  every  Saturday,  and  two  Fairs  in  Vigilia  & 
Craftino  Sai'.cti  Michaelis,  gi'  aliam  in  DieSanHi  Georgii  Martyris,  fip  diiohns  Dicim  proxime  fefjuentilms. 
But  it  does  notappear  in  Dy.  whether  the  Grant  was  adjudged  void. --In  the  Cafe  of  AltonVVoods.  1  Rep. 
SO.  a.Popham.  Ch.  J.  fays  he  was  of  Council  in  this  Cafe,  and  that  it  is  not  fully  reported  in  Dyer.  He 
States  it  to  be  adjudged  a  void  Grant  ;  For  the  old  Fair  cannot  pals,  becaufe  it  was  plainly  the  Qiieen's 
Intent  to  create  a  new  one  ;  for,  he  adds,  there  was  a  Claufe  in  the  Grant  (vi/..)  riift  .Uerc.-tum  cf  Knndinx 
aU  rjfent  ad  Kociimentum  "jicinonm  .Mercatorum  Qp  -vicinariim  NundinarHw  ;  which  \Yorc-.:u'e  alvvavs  nicd 
in  the  granting  a  new  Fair.     But  in  the  Calc  of  a  common  Perfou,  the  old  one  fhould  have  paffed  without 

Quellion  ;  and  for  that  cites  Dy.  2<;2    iS  Eli?,. It  did  not  appear  to  the  King  that  he  had  an  old 

Fair,  but  he  intended  as  the  Words  itnport  to  grant  a  new  one,  and  not  the  F.;ir  i;i  £li'-,  and  therefore 
tUcGrant  is  void.  2  And   i  56.  cites  S.  C. 

15.  Kir.a; 


Prerogative  of  the  King-.  10:5 


c 


15.  King  H.  7.  being  feifed  of  the  t-ito  Alaiiors  of  Ryton  and  Condor 
in  Shroplhire,  \\q  granted  ex  ccitii  vScientia  &c.  tottim  iU:id  Miincriiini,  of 
Ryton  and  Condor  &c.  And  the  Grant  was  adjudged  void ;  For  that  tha 
King  was  deceived  in  it,  yet  in  the  Cafe  of  a  common  Fcrfon,  it  had 
been  good.  So  where  Queen  PJizaheth  boing  feifed  of  the  Manors  of 
Sappcrton  and  Milborne  in  Lincolnlhirc,  granted  to  one  totum  illud 
JVlanerium  de  Milborne  cum  Sapperton.  It  was  held  that  neither  of 
them  paifed.   i  Rep.  46.  a.  b. cites  29  Eliz..  &  39  Eli/.. 

16.  Siire  jucias  by  the  Queen  to  repeal  a  Patefit  granted  to  Cotton 
-and  his  Wile,  Anno  35  of  her  Reign,  reciting  that  H.oJidG.  Conjunc- 
tim  et  Divilim,  were  bound  in  a  Bond  of  1000  Marks  to  the  Queen, 
Aimo  ■i,i.  which  was  forfeited  i  reciting  alfo,  That  the  Queen,  by  Patent, 
Anno  33  of  her  Reign,  hud  granted  unto  Cotton  and  his  W  ife,  thefaid 
Bond,  andthe  looo  Adarks  fojorjeited ;  reciting  alfo,  ^hat  at  the  Suit  of 
Cotton  in  the  Qiieen's  Name,  Judgment  was  given  in  the  Exchequer, 
that  the  ^uen  fboald  have  Execution  (or  the  faid  1000  Marks.  And  to  the 
Intent  that  Cotton  might  have  the  faid  Bond,  the  Queen  by  the  fiid 
Patent  Anno  35  in  her  Reign,  reciting  the  Judgment  obtained  in  the  Ex- 

hequer,  ex  certa  Scientia  &i  meromotu  &c.  granted  him  the  fiid  Bond, 
and  the  1000 Marks,  and  ail  the  Benefit  and  Advantage ol  the  faid  judg- 
ment. In  this  Grant  the  Queen  was  deceived,  and  the  Grant  thereby 
void.  I.  becaufe  the  Obligation  was  forfeited  at  the  Tune  of  the  Grant  ^ 
whereas  the  Queen  rav/t'^  ^^;??  it  was  (to  become  forfeited)  2.  Becaufe  llie 
recited,  T'ijatjhe  had  granted  the  Obligation  before  before  by  the  Patent  of  i'^. 
whereas  in  'Truth  nothing  pajjed  by  this  Patent,  for  want  of  true  Recital  of 
the  Condition  of  the  Obligation.  3.  Becaufe  the  Judgment  was  given  of 
izd.  Co/Is  and  12  d.  Damages,  as  well  as  of  1000  Marks',  whereas  the 
Grant  of  tctum  Bencftcium  (3  Advantagiiim  of  the  Judgment  aforefaid.,  ex- 
tends as  well  to  the  Cojls  and  Damages  as  to  the  loon  jVfarks,  which  was 
the  principal  Debt,  and  fo  the  Queen  deceived,  which  Lord  K.  Egerton 
thought  was  hard  in  Confcience,  becaufe  the  Fault  was  in  the  Clsrk,  who 
wrote  the  Privy  Seal,  and  the  Bill  ligned  was  well;  But  the  Law  was 
with  the  Queen  in  Extremity.  Mo.  448.  pi.  610.  Pafch.  38.  Eliz.  The 
Queen  v.  Cotton. 

17.  The  J^ueen  was  7'enant  pur  ktiter  Vie,  and  made  a  Leafe  for  ^o  Tears;  S.  C.  argued 
tho'  in  this  Cafe  ihe  cannot  ahiolutely  contraft  tor  fuch  Lealc,  yet  with-  J^^°-  5-5- 1<* 
out  any  Recital  or  Mention  of  Ellate  tor  Life,  the  Leafe   is  good^  lor  ^'■" 

the  Leafe  for  Years  is  in  Judgment  of  Law  lels  than  an  £llateP//r  auter 
Vie,  and  the  Qiieen  does  no  Wrong  or  Prejudice  to  any  by  the  Demife, 
and  is  not  decei\  ed  in  her  Grant ;  tor  in  Judgment  of  the  Law,  this  is  a 
Leafe  j  or  40  I'ears  if  Cejif  que  Vte  lives  fo  long.  But  if  Ihe  had  granted  a 
greater  Ellate  than  flie  lawfully  might,  as  an  Ellace  Taile,  or  in  Fee, 
there  becaule  Ihe  cannot  lawfully  do  it,  llie  was  deceived,  and  by  Confe- 
quence  her  Grant  ^  oid.  7  Rep.  12.  Refolv'd.  Mich.  33,  &  34.  Eliz,.  in 
the  Exchequer.     Englefield's  Cafe. 

18.  The  Kyn^  feifed  of  a  Afanor  in  Tail  Remainder  to  his  Right  Heirs,  Tudge  [en- 
^r^»ff^  this  Manor  by  Patent  to  A.  in  Fee,  this  Patent  is  void  i  for  the  King  .^'.".^'^y^' 
intended  to  grant  one  entireEllate  in  Fee,  and  not  hyFraitions ;  firll  lor  the  haydCife. 
King's  Lile,and  aiterw  ards  to  be  made  void  by  theSuccelfor,  HeirinTail ,  Where  rhe 
and  then  to  be  revived  again,  where  the  King  dies  without  Iliue.  By  all  the  Klnf^isnot 
Judges.     Jenk.  251.  pi.  42.  cites 41  El.   i  Co.  40.  b.  Alton  Wood's  Cafe.  'if"(^^^'J;,i" 

•"atirm,  nor  in  the  Eflence  of  the  Eftate,  and  where  the  Kinc^  has  no  Prejudice,  hut  the  pofTible  Preju- 
dice is  to  the  Patentee,  the  King's  Patent  cuglit  not  to  be  avoided.  The  Grant  is  good  in  the  Cafe  of  a 
Common  Perfon.  Princivns  beneficiumdecet  efle  nianfurum.  It  is  for  tlie  King's  Honcmr  to  maintain 
his  Patents,  and  it  is  a  Difiionour  to  him  to  avoid  them  by  too  nice  and  fubtle  Conftrudtion.s ;  And  fre- 
quently it  is  to  the  grievous  Lofs  of  the  Patentee.     Jcnk.251.  pi' 42'. 

,19.  Ifrhe  Qiieen   in  her  Letters  Patents   rf  Prefentation  viijtakcs  her 
Title  ;  as  if  Ihe  has  Title  to  prcfent  in  refpect  that  li.e   is  the  viry  Patron, 
andjhe  prefents  Ratione  Lapfus ;  fuch  Prefentation  is  void  ;  For  ihe  is  de- 
ceived 


I04  Prerogative  of  the  King. 


ceived  in  her  Prefentation.  6  Rep.  29.  b.  Trin.  44  Eliz.  B.  R.  The  third 
Refolution  in  Green's  Cafe. 

20.  The  King  makes  a  Lcafe  for  21  Tears  to  A.  and  afterwards  reciting 

this  Leafe,  grams  the  RcTerJton  of  this  Land  to  £. yV.  had  lurreiidered 

his  Leale  betore  the  Sealing  of  the  Second  Patent.    The  Second  Patent  is 
void  ;  For  the  King  had  not  the  Reverlion  but  the  PolfeHion  at  the  Time 
ofthc  Sealing  the  Second  Patents  But  where   the  King  has  ihc  Ruvn-y/ofi 
of  Land,  or  a.  Munor^  Espefi ant  ripo/!  a  Lcafe  jor  liars,  made  by  a  Com- 
mon Perfon,  and  grants   the  Land  or  Manor  by  Patent  by  fucli  Words, 
the  Reverlion  will  pais  ;  For  the  Reverfion  ol  the  Land  or  Manor  is  the 
Manor  or  Terra  revertens.     Jenk.  303.  pi.  67. 
T.e. ;-  Mr         21.  Note  the  Difference  agreed  by  the  Court.  If  the  King  gra/Jts  to  A. 
W.ilteiHun-  ^/if/^g  iVafte  iriD.  after  an  Ad  qnod  Damnum  nturned,    and  that  the  W'alte 
Sv"but  not  contains  "120  Acres  ;  yet  if  it  contain  300  Acres,  all  pafs  .;    For  the  Grant  is 
S.v'—But  if  general,  and  the  Ad  qmd  Damnum  was  to  enquire  of  the  Damages,  and 
the  Kin;;       not  for  the  Quantity  of  the  VVaftc.  Noy.  29.  Brand,  v.  Todd. 

Jcres  of  his  Jf'aft  in  D.  and  the  ad  quct^Damvum  relurm;  that  it  is  not  to  his  Damage,  and  that  thcWafte 
contains  ^00  Acres,  there  nothing  pafTes,  for  it  is /(Wfer^^iww/w/^  120  .Vrt-cj  were  ir.ter.ded,  and  the 
Party  fliall  «(!<  have  any  Eleiiion  agaivft  the  King;  All  which  was  agreed  upon  Evidence  to  the  Jury. 
Moy.  29.  Brand,  v.  Todd. 

22.  The  King  poffcfled  of  a  Chattel  Intered  m  Lands,   for  a  Debt^r^;;rj- 
them  tn  Fee.  It  was  refolved  to  be  void,  the  Kmg  being  deceived.  3  Lev. 

135.   Mich.  35  Car.  2.  C.  B.  Travel,  v.  Carteret. cites  1  Rep.  52.  a. 

and  the  Cafe  of  H.  7.  there  citedi  and  Mod.  415. 


See  (O.  b.)  (P^  b)  Where  the  King  fnall  be   iaid  to  be  deceived  in 

his  Grant. 

I.  Tif  tljC  King  feifed  of  the  Advowfon  of  a  Prebend  in  Fee  which  is 
Prefentative,  flUli  ijC  grants  totam  Rettoriam  live  Prsebendam 
noftram  BC  JtCljiltQ;  Slbbnjj  tit  COUt.  8)0Utl)»  cum  omnibus  Decimis  qui- 
bufcunque  eidem  pertin.  &c.  Monallerio  de  W'inton.  nuper  fpetl.  in  tarn 
amplisModo  &  Forma  as  the  late  Abbatefs  held  it.  '2Cf)a'  t\)t  3l3liatCf0 

loajs  fcifeD  at  jfec  of  tijc  aniioiufon,  pet  tlje  OBijoiuroii  fljall  not  pnRs 

bp  tW  ©rant,  tSltt  tljC  iAinn;  I6  5CCClVlC5  ;  lot  he  intended  to  paf3 
the  Reclory   and  Tithes  as  a  Lay  Thing,  and  not  the  Advowfon.  {3lil» 

14.  Cat*  '^W  Caft  tuas  tcfctten  to  tijc  atbittcmcnt  of  tIjc  LotD 

iaCCpCC  bCtUJCCn  tl)C  PrcfCntCC  of  tljC  Lord  Marquis   of  Winchejter  atttl 

one  Pc/)f  tt)e  l^tefcntcc  oftljc  Hiniu,  anti  |)c  aiuatocti  upon  Ijcatinn; 
of  Counfel  m  a  cleat  l^otnt  \\\  Laiu,  tijat  notljinn;  paficti  bu  tbis 
v55tant,  ann  fotbcptcfcntccoftbc  iMm  obtamcu  tijc  Cbiitcb  ann 
tuas  inftitutco  ann  ntmirtcD* 


See  (Y.  3  2) 


-CM.  c)     j^Q^  b)    Grants  of  the  King  fjlje  Rcc'ttaJ.      In  what  Cafes 
a  falfe  Reeital  fhall  make  a  Patent  void. 


tlie  Argu-     tec  tbC  Kmg  recitmg  the  firlt  Demife,  anD  tijAt  tl}Z  JntCicIl  tljCtCOf  IS 


Prerogative  of  the  King.  105 


c 
wlioiii 


I 


come  to  'B.  and  that  he  h:id  (urrendered  tO  UEi,  !jC  OCmtfCd  tO  15.  Hd  "i^nt  of  th 

UicU  ill  CcnfiBcriitiait  of  20  l.  pain,  as  j^ro  co  qiioD  tlje  faio  15^  fti-  ^?''"; 
pcrfc  aiTumpQt  to  rcpmc  tl)c  l^rciiiKTcs  at  0(0  ooiit  COils.  Cijis  h'ldlhc 
ftilK;  laccitai  il)aU  n\30io  tljc  Icnfe ;  JFoc  tljc  Umij  iittcnocH  tl)C  luijole  cant  void, 
caatcof  tljeftrft  Demifetoiie  fiirrcnticrcri  to  ijim,  aim  tijts  uiaci  bucsmv  Ba- 
tlje  CaiUc  of  Ijigi  orant.  ^.  s.  Ja,  ^cacc.  bctiuccit  Sjjcr  andEajL  'o"  e  conn-a. 

2+   Jf  tljC  King  recices,  that  where  by  Letters  Patents  dated  &c  th?  v\'ooo.\C*re' 
Office  of  the  Ajarlhai  ot"  B.  R.    was  granted  to  J.  S.  tor  his   Lile,  and 
that  the  faid  ].  had  lurrendered  them  to   him,  tljC  tUljtCl)  l)C  aCCCptCC, 

in  confiueration  of  i\M  %\mtmtx  tije  l^ing  ijrantis  tijc  Offtce  to 
%  D.  fot  lite.  If  tijC  ©fficc  uiag  not  grantcu  to  J.  ^,  or  if  Ijc 
tin  not  rurretiBcr  tOc  Lcttctsi  jaatcnts,  tijis  neiu  iSrant  mane  to  J. 
D.  10  \30in ;  ODCcaurc  tijofe  arc  t!)c  ConfiDcratioii0  of  tljc  ncui 
(©rant,  i^iclj.  1 3  Car.  05.  E.  betuiccn  'Sir  John  Meade  anB  ^ir 
John  Lcnthdii.  Ecfoiacti  pct  Citnaiu  on  (EDUJcncc  at  tOc  "Bar  \\\  a 
-Crial  for  tlje  ©fncc  of  tije  99arnjal  of  15.  E*  in  an  Action  upon  tijc 
Cafe,  ann  tijereiipon  ^ir  3iol)n  Q3ea5c  uia^  nonfuitetr. 

3.  A  Wan  made  Suggcftwn  to  the  King,  that  he  ivas  fetled  in  Fee,  and 
cZ-to/Wi/av/^  of  the  King  to  alien  in  Fee,  and  to  retake  for  Life,  the 
Remainder  over  in  Fee,  where  it  was  found  tliat  he  who  got  the  Licence 
had  not  but  for  Term  of  Life  j  by  which  it  was  awarded,  that  the  Land 
upon  Scire  facias  Ihould  be  re-feifed,  by  reafon  that  the  King  was  de- 
ceived in  his  Grant;  quod  nota.  Br.  Patents,  pi.  77.  cites  zi-MY.   15. 

4.  Queen  Mary,  in  a  Grant  by  her  made  of  the  Ctijlody  of  a  Caflle  to  *  It  was  faid, 
D.  recited  a  Surrender  to  her  wade  of  a  former  Grant  thereof  dated  vinno  ^^^^  "^^e  Sta- 
33  H.  8.  wlien  in  Truth  it  v.as  dated  ylnno  32  H.  8.   Afterwards  Queen  0*^1.^^  ' 
Elizabeth,  Ex  fpeciali  gratia,  granted  the  faid  Office  to  K.     Adjudged,  of  Mi;"ie^i- 
That  by  Reafon  of  this  Miirecital   of  the  Date,  the  Grant  to  D.  was  tals  docs  not 
void  notwithitanding  the  A61  34  H.  8.  and  other  *  Afts   of  Mifrecital.  ^id  Offices, 
Nelf.  a.  896    pi.  4.  cites  Kemp  v.  iMack- Williams.  Dyer  195.  1  Rep.  ^^^"''t^'lj '"'^ 
in  the  Cafe  of  Alton  Woods.  S.  P.  an"fo'^pL 

tents  of  Offi- 
ces remain  as  they  were  at  Common  Law,  and  the  Truth  of  this  Cat  was,  That  th?  Cufforly  of  the 
Cajlle  ivas  an  Offre  of  Conjfablejliip  of  the  fame  Caflle  tho'  no  Woi'd  of  it  was  v.\  the  Patent ;  And  at 
length  the  Plaintltf,  viz.  K's  Servant  was  nonfuited.  D.  194.  b.  195.  a.  b.  pi.  55.  Hill.  5  Eliz.  Kemp 
V.  Mack-Williams. [But  I  do  not  obfervc  that  any  Judgment  was  given.] 

5.  One  who  had  only  a  Leafe  of  Lands  for  60  Years,  made  a  Leafe  of 
the  fame  Lands  for  80  years.  The  Reverlion  came  to  the  Crown,  The 
60  Years  expired;  The  LeJJee  fiirrendered  to  the  Queen  the  Lidentu  re, 
Eltate  and  Interelt,  to  the  Intent  ihe  ihould  make  a  new  Leafe  to  him  for 
20  Years,  which  Ihe  did,  and  in  her  Grant  ihe  recited  the  Leafe  for 
80  Years,  and  that  in  Confideration  of  a  Surrender  thereof,  and  ior 
divers  other  good  Confiderations,  ihe  Ex  certa  Scientia  6cc.  demiild 
the  lame  for  twenty  Years  rendering  the  ancient  Rent.  It  was  held 
by  NV'ray,  Southcot,  and  Manwood,  that  the  Demiie  was  void  ;  Be- 
caufe  the  Queen  was  deceived.  But  Dyer  held  e  contra;  Becauie 
there  is  no  Suggertion  or  Intormation  but  a  Confideration,  which  tho'  it 
be  tall'e  is  yet  nothing  to  the  Purpofe.  D.  252.  pi.  26.  Trin.  iSEliz. 
Anon,  cites  Ficih.  27  H.  8.  and  Br.  Patents,  ^37  H.  8. 

6.  King  H.  8.  Ex  certa  Scientia,  and  m  Confideration  0/^300  /.    grant- Cro  E.  9^5. 
ed  all  thole  Mefliages  in  the  'tenure  of  B.  and  lying  /;/  the  PariJJo  of  D.  ^^",  ^' 
when  in  Truth  they  did  not  lie  there,  but  in  the  Pariih  ofS.     It  was    "'"'^"• 
adjudged,  that  tho'  the  Meliuages  were  in  the  Tenure  of  B.  yet  becaufe 

by  the  Grant  they  were  rejhained  to  a  particular  Place  where  they  were 
not,  and  there  was  no  other  convenient  Certainty  to  fix  the  Premiiles, 
therefore  the  Grant  was  void,  z  Rep.  32.  b.  Mich.  36  &;  37  Eliz,.  Dod- 
dington's  Cafe. 

D  d  7    A'.'/zf 


io6  Prerogative  of  the  King". 

ThcCaic  f;.  King  H.  8.  hi'mg'tcimnt  in  T'ail  of  the  Manor  of  Abbotclly,  giw/^i-^^ 

ua!'Tcnant  '^^  ^"  ^'^^  Servant  jyii/h-r  IFc/fi,  and  to  Elizabeth  his  JVife,  andto  the  Heirs 

in  Tail  to  "/  (^"'i-'-t^odj  of  the  [aid  Walter,  and  in  the  Patent  it  was  recited,  that  the 

liim,  ar.d  King  was  Icifed  of  the  faid  Manor   in  Fee;  and  upon  Demurrer  it  was 

the  Heirs  inllllcd.  That  this  Grant  was  \oid,  or  if  not,  it  was  good  only  during 

Body ''and  ^hc  Lile  of  the  King  ;  Becaufe,  he  having  only  an  Eltate-Taif  himfelL 

aftenvai-ds  could  grant  only  for  his  own  Litej  For  he  could  not  grant  a  greater  Ef- 
the  Reverjln:  tate  than  he  had,  ib  that  being  Non  Inlbrmatus,  or  Mis-informatus  of  his 

came  to  the  Elhite,  he  was  deceived  in  granting  it.  Nelf  a.  898.  pi.  25.  cites  Moor 

c™.u«  by  the  .J     VVclili's  Cafe. 

Jttimtier  of    ^    •' 

the  Reucrfofier,  and  it  was  enaftcd  by  Parliament,  that  H.  S.  Should  have  the  faid  Manor,  and  fliould  be 
adjudged  thereof  leilcd  to  him,  his  Heirs,  and  Succeflbrs  in  Fee  fimplc.  Saving  to  all  Perlbns,  Except 
the  Kevcrfioner  and  his  Heirs,  all  Rights  &c.  It  was  argued,  that'tho"  tlie  King  had  the  Rcvcrfion 
in  Fee  at  the  Time  of  the  Grant,  yet  the  Patent  to  U^.  fliould  not  euir.e  firfc  upon  the  King's  Efiate 
for  Life,  and  then  to  he  loid  againfl  the  fffiie,  and  to  he  ^eocd  ai'^ain  after-the  Failure  of  fff'ne  ;  becaute  liach 
Operation  of  the  GrSnt  imports  in  part  Grant  of"  the  Rcverflon  which  the  King  had,  and  fo  there 
ought  to  have  been  a  Recital  of  tlic  Elbte  in  Poffeffion  which  there  is  not,  and  that  the  iaving  no 
ways  betters  the  Cafe,  but  the  Grant  mud:  be  confidered  as  it  was  at  the  time  of  the  mjking,  wlien  the 
King  was  Tenant  in  7'ail  with  Reverfon  expecfant  in  Fee  to  him.  And  that  Fractions  of  Efiates  can>7ot 
he  in  Grants  of  the  King,  vii.  that  the  Grantee  fliall  have  for  a  Time,  and  then  the  King,  and  then 
the  Grantee  again.  But  afterwards,  upon  arguing  the  Cafe  by  the  fjarons  in  5S  &  59  Eliz.  Ev/ens 
and  Periam  Ch.  B.  were  againft  the  Q^aeen  [and  for  the  Grantee]  in  omnibus  ;  and  Clarke  B.  in  omni- 
bu.s  with  the  Queen.  Nota,  that  Periam  f^id,  That  if  Tenant  in  Tail  be,  Remainder  in  Tail.  Re- 
mainder to  the  (^ueen  ;  and  Tenant  in  Tail  doesTreafon,  and  the  Qiieen  makes  L^afe,  and  then  Tenant 
in  Tail  dies  without  Iflue,  and  afterwards  he  in  Rem.ainderdies  without  Iflue,  the  Lcafe  fliall  continue 
good  upon  theKcverhon.  Mo.  415.  pi.  5;o.  Mich.  57  6c  3S  Eliz.  VVelfh's  Cafe. 

8.  The  Pr/'or  of  W.  ]?e'mg/eifid  ofthe  Rcfforj  of  L.  leafed  the  ^ithe- 
Corn  and  Hay  for  Years,  rcfer^vtug  4  /.  Rent,  and  the  Le[Jhr  to 
pay  7,  s.  4  rt'.  per  Annum  for  bringing  the  Rent  to  the  Priory  ;  The  Priory 
coming  by  mefne  Delcents  to  the  ^iicen  after  the  Statute  of  Diflola- 
tions  &c.  ilie  leafed  the  Re^ory,  and  all  the  Glebe  "-juith  the  jippiirtcnan- 
ces  i/fiially  let  with  the  fame  hereiotbrc,  t/nder  the  yearly  Rent  of  ^ /.  16  s. 
8  d.  to  hold  the  Premises  under  the  iaid  yearly  Rent  of  3  1.  16  s.  8  d. 
It  was  adjudged,  That  the  Leafe  made  by  the  (^eenvvas  \oid,  becaufe 

'  Ihe  was  deceived  in  the  Conjideration  ;  For  Ihe   intended   to  leafe   no 

more  than  what  the  Prior  had  leafed  before,  and  to  hav^e  the  fime 
Rent  which  he  had  :  Now  the  Prior  leafed  only  the  Tithe-Corn, 
and  Hay,  and  had  4 1.  per  Annum  ;  for  the  3  j.  /^d.  was  nut  to  be  de- 
duced out  of  the  Rent,  but  paid  by  way  of  Covenant ;  whereas  the  Queen 
had  but  3  1.  16  s.  8d.  for  the  whole  JFLeftory,  fo  that  it  is  plain  ihe 
was  deceived  in  the  Recital.  Yelv.  42.  47.  Hill.  i.  &  Trin.  2  Jac.  B. 
R.  Chambers  v.  Mafon. 

9.  King  H.  7.  granted  the  Manor  of  B.  to  G.  B.  in  'fail  Male,  and 
after  by  another  Patent,  reciting  thefortner,  and  that  in  Conjidcration  of  the 
Surrender  thereof  Virtiite  aijus  he  was  feifed  in  Fee,  he  de  Gratia  fpecia- 
ii,  certaScientia  &  Mero  Motu  re-granted  the  laid  Manor  to  the  faid 
G.  B.  and  J.  his  Wife,  and  to  the  Heirs  of  the  faid  G.  B..  It  was  re- 
folved.  That  the  Recital  of  the  Eltate  Tail,  and  that  the  Patentee 
had  furreuderedor  delivered  the  faid  Letters  Patents  to  the  Chancellor 
to  be  cancelled  were  both  in  Judgment  ot  Law  the  Information  and 
Suggeftion  of  the  Party  j  But  the  Claufe  of  (Virtute  cujus  he  was  feif- 
ed in  his  Demefne  as  Oi  Fefc)  was  only  the  Collec'tion  of  the  King 
himfelf  as  a  Confequence  upon  the  Surrender,  in  which  the  King  mil- 
took  the  Lav\r.  6  Rep.  55.  b.  Trin.  4  Jac.  Lord  Chandois's  Cafe" 

10.  Jlfo  the  Party  inlormed  the  Kmg,  That  he  had  deli-jered  his  Pa- 
tents to  the  Chancellor  to  be  cancelled,  whereupon  the  King  afprmed,  (qu^ 
quidem  Liter  £  Patentes  adttinc  S  ibidem  cancellatts  fuerant)  This  is  not 
the  Information  of  the  Party,  but  the  Jffirmation  of  the  King;  And  the 
Collection  or  Affirmation  of  the  King  upon  the  Information  of  the  Party 
•when  it  is  not  any  Parcel  of  the  Conjtderation  fhall  not  avoid  his  Grant ;  For 
all  that  the  Parry  had  informed  w  as  true,  and  the  Error  was  in  the 

Confe- 


Prerogative  of  the  King".  107 

Conicquencc  or  Inlercnce  made  by  the  King  upon  it  i  Thcreloie  in  as 
much  as  the  Party  had  truly  informed  the  King  of  the  Ellate  Tail, 
and  of  the  Delivery  of  the  Patent  to  be  cancelled,  tho'  the  King 
.  had  miltaken  the  Law  or  the  Matter  in  Faft,  yet  this  being  no  Pare 
of  the  Conlideration  Ihali  not  avoid  the  Grant  i  Fox  no  Dcfuilt  ivds  in 
the  Party.  6  Kep.  55.  b.  Trin.  4  Jac.  Lord  Chando's  Cafe. 

1 1.  By  Letters  l-'atent   the  Ktng  grMitcd  Omiics  illas  Paias  T'crr^e  vo- 
cat'  B.  and  C.  exill'  in  Man'  de  D.  nupcr  inTenura  J.  S.  ®//u^  qniticiii  o;)i' 
ma  Prx7)ii£a  a  ndis  isc.  Concdata  i3  Detent  a  fuerunt,  &  Redditus  &.c. 
inde  non   refponfa.  Habendum  &c.     In    Ejeftment  it  zvas  found,  that 
the  Manor  oj  D.  0/  zchich  the  Premijfcs  in  ^lejfion  ixere  Parcel,  Ncn  Ccn~ 
celat"  nee  IJetent'  fuit,   fed  fuit  in  Onere  &    Compoto,  and  that  the 
Rents  £jc.  oj  the  [aid  Manors  {except  of  the    Premi[Jcs   in  .^iteftion)  v.ere 
anfiiercd  to  the  King.     It  was  relblved.  That  the  Grant  was  void  for 
the  falle  Kecital  ;  For  the  Manor  icfelf  being  in  Charge  to  the  King, 
the  Preniilies  u  hich  are  part  of  it  cannot  be  faid  to   be  concealed  or 
detained  ironi  the  King,  tho'    in  Faft  they  were  in  the  Polfelhon  of 
an  Intruder,  v,  ho  anlwered  nothing  lor  them  i  Nor  can   any  Land,  of 
■which  the  King  is  ieiied,  be   fiid  in  Law  to    be  detained  trom  him. 
And  therelbre  the  Recital  of  the  Qiise  quidem  &;c,  which  is  to  becon- 
lidered  as  the  Suggeftion   of  the   Patentee,  being  talfe,  the  Grant  is 
void,  and  cannot  be  aided  by    the  particular  Defcription  or  Certainty 
of  the  Lands  granted,  nor  by  the  Words,  Ex  Certa   Scientia  &c.   10 
Rep.  109.  Mich.  10  Jac.  C.  E.  Legat's  Caie. 

12.  The  (yunen  granted  an  Hoiije  and  Lands  in  Fingergoe  in  Eflex  to 
one  7!  iS.  icbofiirrcndercd  the  fame  to  the  Queen,  and  Ihe  made  a  new 
Leafe  of  them  to  him  in  this  Alanner ;  viz.W  hereas  T.  S.  hath  furrender- 
ed  his  Ellate  mFingergoe  tn  SnJJ'ex  &c.  in  Conlideration  thereof  I  grant  to 
liim  the  Houle  and  Lands  in  Fingergoe  in  Efjex  ■■,  Ic  was  objected,  That 
there  was  no  good  Conlideration  for  the  new  Leale  and  that  the  Queen 
■was  deceived,  tor  it  is  in  Conlideration  of  his  Surrender  of  his  Kitate 
in  Fingergoe  in  Siiffex,  v\  hereas  there  is  nofuch  Place  there  but  inElfex  : 
Sed  per  Coke  and  Doderidge,  The  Leafe  is  good,  for  the  Statute  43 
Eliz.  cap.  I.  enafts.  That  Letters  Patents  iTiall  be  good  notv\ithltand- 
ing  any  Mifnofmer  of  the  Town  or  County,  and  this  is  but  a  viifn.iiit- 
ingofihe  County,  and  not  any  material  Miilake.  i  Roll.  Rep.  23.  Palch. 
12  Jac.  B.  R.  Godfrey  v.  Sparrow. 

13.  By  a  Deed  dated  10  May,  Anno  31.  the  Parfoni7ge  of  PI.  •x'as 
granted  Ly  iS.  to  H.  8.  and  on  the  21//  July  fclloiving  the  Ktng  granted 
the  Parfon age  of  D.  w  the  faid  S.  and  his  Heirs,  ///  Conjideration  oj  the 
Parfonape  oj  H.  to  him  granted,  not  laying  if  granted  by  Deed  or  How. 
Alterwards,  viz..  on  the  26  July  the  Deed  was  acknowledged  by  S  and 
inrollcd  Secundum  Formam  Statuti  j  HobartCh.  ].  held,  that  tho' the 
Conlideration  exprelled  in  the  King's  Grant  was  talfe,  for  that  the  Rec- 
tory--ji' as  not  granted  to  him  til/  the  Deed  zvas  inrolled,  which  was  aker 
his  Grant  to  S.  yet  his  Grant  Ihall  be  goodi  for  the  King  is  not 
deceived  at  all  in  Effect ;  For  he  has  the  Parfonage  of  H.  and  that  by 
the  Grant  of  S.  v/hich  was  made  before  the  King's  Grant,  and  mult  be 
fb  pleaded  as  made  10  May.  And  tho'  it  be  true  that  it  was  not 
compleat  for  want  of  Inrolment  at  the  time  of  the  King's  Grant,  yec 
•whcnthe Innhnent  camc,it  takes  its  Effe^f,  not  Irom  the  Inrolment  nor 
bv  it,  but  irom  and  ly  the  fir (l  A[f :,  And  therefore  between  the  Parties 
it  Hiall  bind  to  all  Purpofes  ab  Initio,  tho'  this  be  in  a  collateral  Re- 
ipect.  Hob.  221,  222.  Needier  v.  Bilhop  of  W'inchclter. 

14.  Queen  Elizabeth,  Anno  19  of  her  Reign,  granted  the  Ofice  of 
Clerk  of  the  Council  oj  the  Marches  oj  Wales  to  A.  jor  Lije  ;  and  by  another 
Grant  Anno  25  of  her  'Kcx'ga.Jhe  granted  to  the  fame  A.  the  Office  oj'  Secretary 
there;  King  James  Anno  i,  witlaout  reciting  thefe  former  Grants  made  as 
aforcfaid,  granted  the  fame  Offices  to  the  fame  A.  lor  Life;  Afterwards 

King 


io8  Prer(.c:ativc  of  the  Kins 


j^ctcx,^  v..  ....^  ^^^-'b- 


King  James,  ^-iiiiio  <)^  ol  his  Reign,  l-y  n mother  Patent,  reciting  the  Pa- 
tent of  Anno  I, grantcii  thefc Offices  to  f.  S.  for  L/fe,  zvhen  cvtrthcy  ]l:ould 
be  void  by  the  Death,  Surrender,  or   Forfeiture  of  the  ^iieens   Patentee  i 
Atcervvards  by  another  Grant,  Jnno  14,  reciting  both  the  void  Grants 
made  by  himfeif,  but  omitting  thegocdGrants  made  by  the  .^teen,  he  grant- 
ed thefaid  Offices  to  W.  U.  and  J.  AJ.  for  their  Lives,  after  the  Death,  For- 
feiture, or  Surrender  of  A.  who  was  Itill  li\ing,  and  of  J.  S.  Cum  poft 
Mortem,  Surrender,  Forfeiture  &c.  of  the  fliid  A.  or  j.  S.  Non  Obltan- 
te  Male  recitando&c.  and  Nun  Oljfante  Nonrecitando  aliquod Donnm  £r'c. 
yrteanteafaBtim  de  Officns  frijcdiBis  ;  Adjudged,  that  the  Grants  ot'  i  & 
pjac.  are  void  i  Becaufe  the  laft  recited  thofe  Grants  which  were  void, and 
the  iirlt  omitted  thofe  which  were  good,  and  that  fuchfaire  Recitals,  or 
falie  Suggeitions  Ihall  not  be  helped  by  the  Non  Obltante  in  the  laft 
Grant ;  Per  omnes  Julticiarios  prster  Hide  Ch  J.  who  held  clearly  the 
contrary  i  and  Jones  J.  vvhofeemed  to  doubt  thereof.  And  the  other  Jus- 
tices held  further.  That  thefe  are  not  properly  Mifrecitals  or  falfe  Re- 
citals but  talie  Informations  whereby  the  King  was  deceived  ;  For  by 
Intendment  the  King  conceived  thole  Grants  to  be  good  which  were 
void,  and  granted  thofe  Offices  after  Determination  of  thofe  Grants  Vel 
alio  quocunque  Modo  &:c.  fo  the  King  is  deceived,  and  the  Non  Ob- 
Jl ante  /hall  not  aid  fttch  falfe  Informations  and   falfe  Suggeftions.     But 
there  was  nor  any  Certificate  made  of  thefe  Judges  Opinions,  becaufe 
the  Parties  compounded.     Cro.  C.  197.  Trin.  6  Car.  B.  R.  Ld.  Brook  v. 
Ld.  Goring. 
In  ai-smn^  15.  The  King  granted  the  Advrjufon  of  the  Church  of  L.   lately  belonging 

the  Iwiee/  ^^  ^^^  Archbifhop  of  Canterbury,  VV^hereas  r/'f  Archbi/bop  of  Canterbury  never 
thefe  Diver-  had  it.  Adjudged  that  the  Church  being  particularly  named,  and  the 
fities  were  King  not  being  deceived  either  in  the  Title  or  Value,  the  Grant  is  good 
I^^^)1'"a^^  enough.  Freem.  Rep.  178.  pi.  190.  Mich.  1674.  The  King  v.  Sir  Fran- 
ofGrantV.'°"  ^i^  Clarke  and  the  Bifliop  of  Rocheller. 

ift.  Where  there  are  only  general  Wordi  ,ix:ilh  tie  Promiin  lUa,  AiOmn'ia  ilia  &c  there  nil  the  f:ibfeqnent  De- 
fcripicns  mull  be  true,  or  eifc  the  Grant  will  be  void  as  well  in  the  Cafe  of  the  King  as  of  a  coismon 
Perfon.  2dly.  Where  ihc'f hnig  is  jiamed  ty  a  particular  Name  that  doth  ftifficiently  afcertait  it,  tho'  the 
fidifequent  Defcriptions  are  falfe,  yet  the  Grant  is  good  enough  in  the  Cafe  ot  the  King  or  a  common  Per- 
fon ;  only  v.-iih  this  Difference,  viz.  if  it  appears  either  that  the  King  nvas  deceived  in  his  Title,  or  in  the 
Value  of  the  Thing,  or  in  any  Thing  relating  to  his  Profit,  the  Grant  is  void  ai^ainfl:  the  King.  Freem. 
Rep.  178.  inS.C. S.  C.  adjudged  i  Mod.  195.  Hill.  26  &  27  Car.  2.  C.  B.  And  in  the  Argu- 
ment thereof  a  Difference  wa.s  taken,  when  the  King  rniflakes  his  ^itle  to  the  Prejudice  of  his  Tenure  or  Pro- 
fit ;  and  when  he  is  miftaken  only  in  fome  Defcription  of  hii  Grant,  which  is  biitfiipplementaly  and  net  ina- 
terial  nor  iffualle. S.C.  cited  by  Holt  Ch.  J.   Skin.  (Idj. 

16.  If  the  King  grants  the  Manor  of  Dale  of  $1.  per  Ann.  Value  to  A. 
where  it  is  of  the  Value  of  10 1,  per  Ann.  the  Patent  is  void  for  the  Value 
/■;;  the  fame  Sentence  with  the  Grant ;  but  it  the  Value  be  mentioned  in 
another  Sentence,  and  not  in  the  Grant,  the  Grant  is  good.  Utile  per 
inutile  non  Vitiatur.     Jenk.  261.  pi.  60.  cites  Cro.  J.  34. 


(Q^  b.  a)     Grants  of  the  King.     Recital  of  Lcafes   [and 
Grants.]  In  what  Cafes  a  Recital  is  ma^ary, 

Leafes  of  Re- 1.  J  ^  tljc  ^w^  graiitjs  atip  131111,  Ot  $c»  U)\t\)  t)3  ill  Icafe  foe  life,  oc 
cord  ought  to    j[  2^ear0,  ant)  tsoe^  luit  recite  tt  in  tljs  Icttcrgi  ii)atcnt,s,  if  tt)c 

be  recited     Leafe  be  not  of  Record,   t|)e  <©rant  10  gOOtl,   nOtlDltljftanDing  tlje 

t^S^nts  Jeon^recital  Of  tije  iLcafe*  3n  ^Imieotl)*  8,  ann  €,  6»  i5t.  pa- 

iheReverfion,  tCUtS!  93»  C0»  6*  Lord  Shandois  56* 

but  not  1     1.^        1 

Leafc!  not  of  Record ;  for  the  Subjea  iias  not  proper   Means  to  come  to  the  Knowledge  of  them.     A 

Non  Obftante  in  tlie  P^tcuE  helps  the  Non-rctital  of  Leafes  of  Record.  Jenl:.  9  05.  p!.  7  -. 

2.   As 


Prerogative  of  the  King".  1 09 


2,  As  if  Land  in  Leafe  comes  to  the  King  by  the  Attainder  ol'  him  *  •'>  I'.  For 
■who  is  ieifcd  ot  the  Reverlion,  or  by  the  Didolu'tion  of  an  Abbev,  tI)C  '■'''j"' ^'^^r-i 

C5i-ant  of  m  KiniTOftljC  lann,  imUmt  Rental  oftljc  LeafnnatJC  ;;S°aii'"~ 
lij'  Oini  uiljo  was  attamteti,  or  ofjtijr  abliot,  15  n,aori ;  ticcaiifc  tljofe  e(k««  and 
JLcalc0  arc  not  of  EccorQ.  In  ^^nnc  of  D.  8,  e.  6.  I5i\  ^L^atciitccs  ^-^g'-c"  of 
9u  €o»6»  Lord shandois  56,  m  cafc  Of  a  Hclicrficn  ccpcftant  upon  .£"f<^'^ofw 
an  emuc^ail  crcatco bp  ftim  luljo  luau  attanttcn,  D»  ft. 7.  (!^I.  233,  J"„[  6  Ke", 
io»  lu  ttBIjcre  tijc  JiJnor  of  iHBtlls  Icafco  for  life  tlje  Demcfnc^  56.3  T,in' 
of  a  99anor,  ano  after  tl)e  iJ^anor  came  to  tijc  iAinu  u|)  tlje  DiffoJi^  4  jac  Ti,e 
tion of tl)c Pnorp,  ann  he ijranteD  thecpanor  uiitljout Eccital oftl^e  Lordcium- 

JLeafC,  anO  pet  lydOO,  anO  XiyZ  Kevenion  of  the  Demefaes  Ihill  pals  b>'  '^"^^"'^■ 
*  isame  of  the  Manor  only. 

3.  Jf  t\)Z  Mm  ijrantfi  an  office  for  Life,  ije  cannot  after  rvrant  so  wi.ere  a 

the  Reverlion  Of  tOlS  ©tftCC  lUttljOUt  a  fpeCMl  RCCItal  Of  tljC  (i^ftatC  *-^/>'?/",. 

for  life  i  but  it  1.0  "am,   Co.  8*  (garl  of  Rutland  s(>.  b*  ''/'  ^^"'" 

""  lee,   and 

grains  it  to 
A-  for  Life,  and  afterwards  {grants  the  Reverfiov  U  the  Kii?/^  in  Fee,  if  tlie  Kinn  erar.ts  tliisOjfice  in  Fee  to 
B.  witliout  reciting  the  Grrtnl  to  A.  altlio'  it  is  not  of  Record,  the  Grant  to  B.  is  void  ;  fjr  the  Grunt 
of  an  Office  has  Reference  to  the  Exercil'e  of  it  in  Prefenti,  and  another  had  the  Pofleifion  and  Excrciic 
of  this  Office  at  tue  Time  of  the  King's  laid  Grant  to  13.     Jenk.  503.  pi,    -  -. 

4*  Jf  tljC  King  leafes  Land  tO  anOtfjCf,  and  after  makes  a  new  Leafe  C';'^-  E-  25  f; 
to  the  Ikni 

tijo' 

\\\ 
p. 

©cacc.  per  curiam.  Kite 

ofthetakiifj 
of  the  fecond  Leafe,  it  was  in  Effe,  and  therefore  ought  to  have  been  recited,   e<peciallv  beino-  a  Le.i/h 

tipo7t  Record  ;  httt  of  a  Leafe  hy  Matter  iu  F'cf,   they  agreed  there  need  he  710  Re,ii.Tl. ^S   C.  cited  as 

adjudged.   Mo.  4.!  5.  in  \A'eHli'.s  Cafe. 3  Le.  242  to  251.  Itlich.  52  Eli?..  S  C.  adjudged.- .♦  S.  C. 

cited  Cro.  C.  lyS.  Contra,  that  it  was  held  to  be  no  Surrender  of  the  former  Leafe. 

5.  Jf  tljC  King  prefents  his  Clerk  tO  a  'Benefice,  and  after  prefcnts  See  (O.b) 

another,  luitljout  ^ijCntton  Of  tljc  fitft  prcfcntatjon,  tbi5  fcconn  j3re=  p'  ^ 

fintanoni^  poo,  laitijout  am»  Recital  of  ti)c  ftrft,  for  tljc  Hrit  is*^^^^^"^ 

revoked  m  Law   by    the  lecond   I^JrefentmCnt,    UJliOOUt  i^CntlOU  Of  andlbid"?o^ 
ti)C  firlt.  93iCl).  8  3a.  ©CaCC.  Dili.  8  :ja.  bCtlUCCn  *  Caho't  and  Knchm  Altham  Ea"' 

atiniuaca ,  for  tljc  ftrft  l^refcntce  Ijao  not  ^m  ^^^tz  nor  littered  in  '■"'^-  "^ed 
tljC  CijurcO  nor  at  W\\\  up  tbe  preantmeut.  Dub.  ID.  i6  ci.  327.  f  ^{'■- }  ^• 
4.  i-^Cl  339.  47*   'But  tl3cre  aaniBijeD  \}oiti,  becaiue  \t  luasi  ob=  .Leamim 
tainco  T  pcnoius a  Citiare  jiiipeDir,  in  Deceit  ot  tfjc  M\\%.  acecond 

Prefentation 
made  by  the  King  was  good,  without  a  Repeal  of  the  firft  ;  and  that  by  Gafcoign  -  H  4.  52.  if  the 
Kin^  makes  a  Prefentation  to  one,  and  then  prefents  another,  without  Recital  or  Repeal  of  the  firft,  yet 

the  BifliOD  ought  to  receive  the  later  Prelentee  ;  for  it  Is  good  without  actual  Repeal. -f  S.  P.  6 

Rep.  2y.  b.  Trin.  44  Elii.  in  Green's  Cafe. 

6.  The  King  grants  a  Copyhvld  hy  Letters  P:?te;/ts  i  it  need  not  be  re- 
cited that  it  'x-:is  Copyhold.  Per  Newdigate  J.  2  Sid.  139.  Hill.  1658. 
in  Cafe  of  Field  v.  Boothby. 

7.  If  the  King  ^^raiits  an  Office  to  Jf'.  N.fcr  Tinn  of  Life .,  and  after  grants 
the  fame  Office  to  a  Stranger.,  the  firlt  Patentee  dies,  yet  the  fecond  Grant 
is  void  i  becaufe  the  firlt  Grant  was  not  rehearied  in  the  fecond  Patent. 

Per  Kcble,  for  Law.     Br.  Patents,  pi.  54.  cites  6  H.  7.  14.  TIiisLaw 

8.  6  H.  8.  15.    If  any  make  Suit  to  tke  King  jcr  Lands.,  Offices,  or  akcr  was  made  on 
'things  formerly  granted  to  any  P.erfou  during  the  King's  Pleafure,  the  firfi  Purpofe  that 
Patentee  being  Jlill  in  Life,  the  lafi  Grantee  pall  exprefs,  in  his  Petition  'or  ^'"^  |*^'"'^ 
Patent,  the  former  Patent,  and  the  Determination  tf  bis  Plcafarc  concerning  be"deccived 
the  fame,  othcrwife  the  lajl  Grant  pall  be  'void.  in  i,is  Grant. 

Ec  A,M. - 


ll 


1 1  o  Prerogative  of  the  King. 


Ai-g.  4  Mod.  277.  in  ^fe  of  the  King  v.  Kemp. If  the  King  grants  to  me  to  be  Swieyor  of  Us  A/,i- 

tionntB.  and  to  take  Himber  jor  the  Buildings  of  the  Kinp;,  durante  iemj'lacito;  and   the  King  grants  after 
the  /ike  Grant  to   another,  not  making  Mention  of  the  firjl  Patent  juxta  fonnam  Statuti  &c.     Yet   the  lall 
Patent  is  good  ;  becaufe  no  Fee  nor  Profit  is  granted  by  the  firll  Patent  ;  as  if  a  Man  had  granted  to  me  that 
Id  carry  his  Wood,    and  after  grants  the  like  Grant  to  another  &c.     Br.  Patents,    cl   "     cites  ■''- 


Patent 
I  fliould 
H.  S.  28 


L  K?.?  ^^4•  ^-  i  ^^  ^'^^  '^'"''"^  '"  ^""'^  "'''^'^  ^  Leafcfor  Tears,  or  for  Life,  and 
Tenant  in  "'^*}  J"^  ^'■''^  ""^y  ^'"■^'^  another  Grant  zvithoiit  reciting  tkem;  for  they  are 
Tail  makes  a  void  by  the  Death  ot  the  King  Tenant  in  Tail  who  granted  ^  and  fuch 
Leafe  for       Grant  is  no  Dilcontinuance  without  Warranty  i  for  the  Kin"-  upon  his 

W^flo:"  Sr' ^K%""J  Tt  ^'""'\  V '•  ^'"'T^  ?!•  1°^-  '^'^^^  38  H.  8.  and 
mayavoid  it,  ^"°  37  W.  8.  b.  P.  between  the  King  and  Sir  Anthony  Lee. 

or  i'f  he  will  he  may  accept  the  Rent  refcrved,  and  fo  affirm  the  Leafe  ;  and  when  fuch  SuccefTor  grants 
thele  L.ands,  he  need  not  recite  the  void  Lealb  ;  for  tho'  it  be  bv  Patent  of  Record,  it  is  null  If  the 
Succeflor  accepts  the  Rent  rcferved  by  the  King  Tenant  in  Tail,  a  Recital  of  this,  or  a  Non  Oblhnte 
That  It  IS  not  i-ecited,  is  neceflary  ;  but  whero  Leafes  are  made  by  common  Perfons,  and  the  Reverfion 
comes  to  the  King,  the  King's  Grant  of  this  Reverfion,  without  any  Recital  or  Non  Obftante,  is^ood  ■ 
for  the  Perfon  who  purchales  fuch  Reverfion  from  the  King,  has  no  Means  to  know  whether  th?re  be 
luch  Scales  ornot ;  for  they  were  made  in  the  Country,  and  are  not  of  Record.  Tenk  -^oa  rl  -'S 
cites  o.  L..  J  f  r  ■  -  • 

SV^cOTd         J°"  '^^'^  ^'"S  '"  ^'"^  ^""'^  "^^^  "°^  ^^^'^<^  '^'s  o-WH  EJlate.  Per  Periam 
Grant  im-     ^"-  ^-  ^-  ^^P-  48-  ^-  b-  Trin.  42  Eliz.  in  Altonwood's  Cafe, 
plies  a  Grant  in  PoffefTion,  which  cannot  be  by  Reafon  of  a  former  Grant  in  Poffcffion,  the  fecond 
Grant_  mult  recite  the  hrll,  or  is  void  by  the  Reafon  of  the  Common  Law.     1  Rep.  50.  in  Alton- 
wood  s  Cafe. 


See  (I.e. 2)  (R.  b.)     What  fliall  be  2i  fijfjcknt   Recital  of  Leafes; 
and  /f%it  Th'mgs  (willji^.pplj;  the  Recital  of  them. 

Br.  Patents  i^TJf  tI)C  IM\\\1  reCttC^,  tijat  where  J.  S.  holds  for  his  Life  of  his 
pl.  93Tays,  i-  Grant,  he  grants  the  Reverfion  to  J.  N.  'C!ji0  ISS  gOOH  HCttta!  Of 
Ir^ted  to''''  ^-^^  ^^^%   without  Mention  of  the  Letters  Patents,  or  Date  of  tVWX ; 

be  Law  in  fot  t^^  ^m  ^^  HOt  DccciUct!,  utafmiicf)  a.0  ijc  talked  .Notice  upon  linn 
Time  of  H.  of  tljc  fomicc  liitcrclt  foe  life.   37  ih  6*  37.  b.  l?cr  Dnnnp.   Jn 

ThoiiT       "^"^'^  ^^  ^-'^  ^*  ^'■*  ii^'^f'^'^^^^^^  96*   ©It  Thomas  Engkjidd's  CafC, 
Ingkfield's  Cafe  ;  and  that  it  feems  to  him  to  be  ^o. 

For ;/  isfuf  ^*  3if  tIjC  l^itlQ;  recites  a  former  Leafe  for  Life  made  by  himfelf  by 
fcient  in     '  Letters  Patents,  bearing   Date  &:c.  aitll  miftakes  the  Date,  and   then 

Pleading  to  grants  the  Re\eriion,  pet  tljii5U3ilI  uot  im\kz  tlje  <J5fant  iJOiQ,  tnafuutc!) 
fay  that  the  gg  (jjg  j^jug  f  ji{.f0  jOotice  of  tljc  €)tatc,  anD  m  Date  10  uot  mate- 
tc^l7klM  riaU   38  p.  6. 37.  b.  \m  Danbp,  Cinie  of  0. 8,  i5i\  mtmtm  96. 

fn  IF.  N.  for  Life,  has  granted  to  J.  B.  the  Reverfion  ;  per  Danby  Juftice,  and  tjie  Court  in  a  Manner 
agreed  to"  it :  Ard  therefore  it  feeras  that  if  the  King  wifrecites  the  Date  of  the  frft  Letters  Patents,  or  the 
like,  yet  if  he  •u.'ell  recites  the  Efiate,  and  the  '^hing,  and  the  Name  of  the  Le'jJ'ee,  that  then  the  Grant  of  the 
Reverfion  is  good;  for  where  the  ¥^\n^  takes  Notice  of  his  'Tenant  for  Lite,  and  of  lis  Efinte,  and  grants 
the  Reverfion,  he  is  not  deceived  in  his  Grant ;  for  he  takes  upon  him  Notice  of  the  former  Inteicll:  for 
Life ;  and  then  the  Date  of  the  firft  Patent  is  not  material,     Br.  Patents,  pl.  96.  ^ites  9S  H.  6.  5 ;. 

3.  Jf  tljC  MW^  grants  Land,  which  is  in  Leafe  of  Record,  without 
Recital  of  the  Leale,  iHlt  Ulitlj  tMC  JBOrD.Jj,  Notwithftanding  th:it  it 
be  in  Leafe  tor  Life  or  Years  of  Record  or  othervvife  j  Xxi^^  \^  ji  ijogj 

etant,  aiiTi  fljail  iiafjS  tlje  Bclicrfion  :  far  t?j?  m\%  is  not  cecci^ocy, 

a!i5 


Prerogative  of  the  King'.  1 1  r 


nnn  tiiijcifc  Jncon^en(encc0  tinli  nrifc  bp  tljc  Eecttal  of  tljc  lcate0* 

€0.  4»  Bozotm.  35.  b.  KCfOlllCO. 

4.  So  !f  lanti  be  in  leafc  of  Kccom,  aim  tljc  l^intj  UJitljout  Btci- 

till  of  tl)C  JtEilfC  grunts   the  Lund,   und  lurther  grants  the  Reverlion 
thereol  depentling,  Ot  CtpCfttint  upon  anv  Ellute  lor  Lite  or  for  Years  i 

tijc  *Srant  w  ffobo  foe  tijc  Caiirc  afoitiaiti*   Co*  4*  Bozoa/i.  35,  b, 
Ecfolucri. 

^-  34  t?"  35-  -f/-   8.    r.7/).  21.    EnaOis,    That   all  Letters  ratcnts^    tp.iui  Tha.Motoi 
Grants  made  by  the  King  Jiiice  the  ^th  of  Fehritary,  or  'xhich  pall  be  here-  W-  with  _ 
after  made  by  him  "jJithin  feven  Jl'ars  next  after  the  making  of  this  Aci^  S°  C '"■"' 
Jh  all  be  good  not-withflanding  any  Mif-nauiing^    Mif-recital^    Non-recital  ^  .^^  yl' •^. 
Not  finding  of  Offices^  Aiif-rccital  or  Non-rccital  of  Leafes,  Uncertainly  Mif-  ie.7fed  Land, 
cajling.  Rating,  or  fettmgjorth  of  the  yearly  Values,  or  Rate  oj  the  'Things  °^  v-^^^ch  tlie 
granted,  or  oj  the  yearly  Rents  thereof.  Want  of  Attornment,  and  Livery  of  /•  ■ ,-  ?'^-  ^ V?'' 
Seifiii,  or  of  the  mi  [naming  of  the  Places  -sibere  the  Things  Granted  do  lie,  or  to  g;,.  'p_     ' 
of  the  Tenants  or  Farmers  of  them,  or  any  of  them.  Afore,  'who 

Provided  alfo.  That  this  AB'  pall  not  extend  to  revive  any  Letters  Pa-  ■^'-■f  "ft"-- 
tents,  or  any  Ofice  granted  by  the  King,  which  have  been  made  void  l;y '^'Y'^' f^t- 
Atithority  of  Parliament,  Judgment,  Decree,  or  any  other imfe,  Treafon 

This  yUf  pall  not  be  prejudicial  to  any  Letters  Patents,    Indentures,  or  and  the* 
Writings  made  after  the  4//?  oj  February,  tn  the  zith  7'ear  of  his  Reign,  and  Lcafe  there- 
bcfbre  the  2.Sth  of  April,   in  the  zSith  Tear  of  the  King's  Reign,  or  to  any  other  ^Y  |^'|e"cd. 
Statute  made  for  the  Corroloration  oj  fuch  Letters  Patents,  Indentures,  or  Wri-  f-j„^  Z,f. 

tings.  felled   &c. 

6.  I  E.6.  cap.  8 .  S:ich  another  Statute  made  for  the  Confirmation  of  all  Grants  ^^<^  he  bc- 
made,  and  to  be  made  by  E.  6.  from  the  28th  of  January.,  in  the  firft  Tear  f/  l"f?-.'i" ^l' 
bis  Reign,  and  fo  during  his  Life,  withj'iich  Provifoes  and  Limitations  as  m  Abby'an'd'^ 
the  former  Acf  of  34  ^  35  H.8.  are  contained.     See  the  Statute.  Kcvci-iion 

came  to 
the  King  and  his  Heirs,  who  after  the  ■^id  of  H.  S  made  a  Leafe  to  R.  for  twenty -one  Y'e.ifs;  the 
Reuerjioti  defended  to  E.  6  who  leafed  to  P.  Habendum^  after  the  Term  of  the  faid  Sir  T.  More  eiuhd,  for  2  £ 
Tears.  Ahcrw^i-A<;  R.  furrendered  his  Term,  and  took  a  new  Leafs  ] or  ■^o  Tears',  Adjudged,  That  P's 
Leafe  was  void,  and  not  conhrmed  by  any  Statute ;  becau!e  the  Term  made  to  Sir  T.  Alore  was  ended 
before  P's  Leale  was  made,  and  then  the  Leafe  of  the  King  as  to  the  C^ommencemcnt  has  not  any  Senfe 
and  the  Statute  of  Mif-recital  and  Ncn-vecital  extends  only  when  Leafe s  in  Ejj'e  are  mij'-recited,  or  not 
recited   and  >:ot  when  the  King  intends  a  Leafs  to  contiiiiie,  which  is  ended  and  determined.  And.  6.  pi.  12. 

Pafch.  2.  Eliz.  Holt  v.  Roper. Bendl.  S4.  pi.  129.  S.  C.and  that  the  iltid  Leafe  made  to  SirT.  Mor^ 

■was  long  before  extinft,  in  the  Pofleflion  of  King  H.  S.  by  Lenity  of  Pojfejfon  of  the  faid  Term  and  Re- 
<i;erjion;  and  fo  the  Leafe  made  by  E.  6  cannot  commence  immediately  aher  the  Surrender  of  tlie  Leafe 
of  R.  Becaufe  the  Words  of  the  Commencement  of  this  Leafe  will  not  ferve  it,  and  thereupon  tiie  Par- 
ties agreed.  The  Reporter  fays  he  was  ofCounfel  with  the  Defend  mt;  and  that  the  Opinion  of  divers 
of  the  Juiiices  of  C.  H.  was  with  the  Defendant  as    above.    [But  mentions  nothing    of  any  Judrment 

given] 5  Lc.  5.  pi.  14.  S.  C.  fays  the  Leafe  to  P.  was  ad-udgcd  utterly  void,  for  that  the  King  wasde- 

ceivedin  hisGrant,  and  not  helped  by  tlie  Statute  of  i  E.  6.  cap.  8.  S.  C.  cited.  Arg,  4.  iMod.  276. 

E.  6.  feifcd  in  Fee  of  the  ^th  She.if  of  Corn  in  E  as  Parcel  of  the  Poffcfficns  if  the  Ahby  of  L  in  the  County 
cf  Tork,  by  Patent  under  the  Great  Seal  in  7  £.6.  granted  to  It^.  R.&  IP^  S.  and  their  Heirs, 
totain  iila/n  McdietatemiionxGarhx  Bladornni  p^  Granorum  vocat.  the  Ninth  Sheaf  de  &=  in  E.  inCcm  Eborum 
niodo  &  nuper  in  Tevura  five  Occuparione  //'  IV.  ac  nuper  Moiafteri.-)  L.  in  Com.  Eborum  diifolut.- 
fpettanc.  By  this  Patent  tUcPhtintijf  claimedthetiuire  c/thSheaf;  for  in  truth  all  was  m  the  Tenure  of  fV  IV:- 
by  a  Leafe  made  ;6  H.  8.  rei'erving  Rent,  hut  £.  was  in  the  County  of  L.  and  not  of  Tork.  The  OuelHon 
was,  whether  the  Intire  ninth  Sheaf  palled  by  reafon  of  the  Statute  of  Mif-recital  made  7  E.  6.  For  as 
to  thi:  .Uifprijion  of  the  County  v.here E.  lay,  it  was  agreed  on  both  Sides  to  hz  not  material,  it  beipo- 
helped  by  the  Statute,  and  fo  held  Popham  &  Clench  J.  in  the  Abfcr^ce  of  the  other  Jallices;  But 
Popham  faid,  That  the  Patent  could  not  convey  more  than  the  Moiety,  if  it  could  convey  tnat ;  For  the 
Makers  of  the  Statute  intended  not  to  aid  a  Grant,  in  which  the  King  was  deceived.  As  if  the  Kin? 
grants  the  Moiety  of  two  Acres,  it  is  not  reafonablc  to  conftrue  the  Patent  to  pafs  2  Acres ;  And  that  is 
the  Difference  as  to  the  ^lantitywhere  the  Certainly  is  plain  ;  ^Js  where  the  King  gr.wts  two  Jcres  called 
the  Manor  of  D.  whereas  the  Manor  contains  ico  Jcres,  it  is  a  good  Grant  of  all  the  Manor,  aid  all  the 
Acres  ;  But  if  he  had  granted  all  his  Manor  of  D-  ccntaining  Ico  Jcres,  whereas  it  contained  20  .■icrts.  No- 
thing had  palTed  by  Common  Law,  but  it  is  aided  by  the  Statute.  There  is  alfo  a  Ditlerence  as  to  the 
^laiity  and  Kati/re  of  the  Thing;  As  where  H.  S.  granted  to  Sir  T.  More  Totam  Turhiiri.xn:  fuam  in  D* 
where  a  former  Patentee,  having  fuch  a  Grant,  had  before  concerted  Part  thereof  into  Jr.-.ble  and  Part  into 
Paflure;  Sir  T.  More  Ihould  have  only  that  which  wasthen  Turbary,  ajid  the  Statute  does' not  remedy 
fuch  a  Grant;  For  Turbary  is  a  Profit  parnable,  which  may  be  in  0:ie  Place  and  rot  in  anotlicr  after 
Cnnverf.on  ;  But,  had  it  been /z  .trrc/if  Moor,  and  after  fuch  G>nverlion  the  King  had  granted '7d/.?>« 
Moral!'  ffian:,  it  had  bccii  other  wile  ;  For  th.tt  it  i.^'rovideJfjt  by  tlie  Statu  le  ;  .\:\d  if  he  mi  ^r.mted  all 

hii 


1 1 2  Prerogative  of  the  Kiiiir. 


lis  FPoirrs  in  fuch  n  Jfcctf,  tc-L erens  he  had  ?iot  any  F (lovers  in  the  fiid IJ 'cod,  hut  a  Coppire  only  therein, he  was 
not  uukd  bv  the  Statute  ;  And  Judrnncnt  accordingly  for  the  Plaint  ft,  wirh  the  Alfent  of  Clench  J.- 
Ca:icns  JulUcianisabfentibus    Cro.  E:  652.    Mich."  40  &  41  £lii  B.  R.    Biownlow  v.  Fan-. 

ls;on-Rcci-  ^_  4  y  5.  /).  y  M.  I.  Another  like  Ati  made  for  the  Con  firm  cition  of  all 
tals  '^'^Jr'  Grants  irntde^  and  to  be  made,  to  or  by  the  ^ueen,  or  to  the  King  and  .^ueen^ 
are  rot  aided/''"''''  ^^^'^  .f^^fi  f^j  J"[y  inthefirftof  her  Reign,  and  fo  during  her  Lije  with 
by  this  Sta-  fitch  Provifoss  and  Limitations  as  in  the  faui  jormer  A^s  of  H.  8.  and  E.  6. 
tiue  ;  Bat  it  are  contained. 
Tenant  in 

Fee  Simple  was  attainted,  and  the  Queen,  after  the  Death  of  the  Party  attainted,  had  (granted  the  Land, 
no  Ofhce  being  found,  this  fhould  have  been  confirmed  by  this  Statute,  and  the  Patent  which  was 
voidy  fhould  have  be;n  made  good  thereby,  i  And.  55   Anon. 

*TheMafter  8.  1 3  El.  2.  Another  like  Confirmaticm  cf  all  Grants  *  made  to  for  and  by  tie 
and  Fellows  _6)i(cen,  or  to  be  fo  made  within feven  I'ears  next  after  the  E.nd  of  this^effton^ 
C  11  *'"-Er'    ''^'''^■^  ^^^'^  Provifoes  and  Limitations,  as  m  the  former  Statutes  ^ 

by  Indenture 

inrolled,  granted  to  the  Qiieen  an  Houfe  inPee,  rendring  15  s.  Rent,  upon  Condition;  That  fhc,  be- 
fore 1  Apr.  Hiould  convey  to  B.  Spinola,  a  Denizen,  and  his  Heirs.    She  granted  accordingly.      Jt  was 
refblved,  That  this  Statute  of  iS  hlii  cap.       .  has  not  given  any  Vigor  or  Effect  to  the  faid  Grant  made 
to  the  Queen,  contrary  to  tiie  Statute  of  1  5  Eliz.  cap.  10.  wiiich  makes  void  all  fuch  Lea'es,  Gifts,  ^c. 
but  that  after  this  Ait  of  the  1 8th.  the  Grant  remains  of  the  iame  Force  as  it  was  before  this  Act  ;  For 
it  is  out  of  the  Letter  of  thi>  Act  which  eftablillies  fuch  Conveyances  only  as  are  nude    for  Satisfaction 
of  Debts,  and  Sums  of  Money,  or  other  good  Confideratoin,  which  Words  in  the  Preamble  are  con- 
nected to  the  Body  of  the  Act :  For  immediately  after  the  fame  Words  the  Statute   fays  (for  the  better 
Allurance  &c.  whereof  be  it  enacted)  and  therefore  tho'  the  Words  in  the  Body  of  the  Acl  are  (for  any 
Debt,  Sums  of  Money,  or  other   Conhdcration  whatfoever)     leaving   out  (good)  before  the  Word 
(C.onfideration)  And  fince  the  (aid  Grant  was  not  for  any  Debt,  Sum,  ot  Money,  or  other  good  Coniidc- 
ration  it  was  out  of  the  Letter  of  the  faid  Act,  nor  did  flie  ever  pay  the  laid  Rent ;  for  Ihe  granted  it  over 
'^cfore  the  Day  of  Payment,  and  befides  the  VS'ant  of  good  Confideration,   there  was   alio  fraudulent 
Practice  ;  But  admitting  there  was  good  Confideration,  yet  this  Statute    of  the  iSth  extended  not  to  it  ; 
j-'or  there  are  5  DifMliiies  iuherehyConreya::ces  to  the  i^neen  ni.ty  ie  wipe.uhed.  I  It.  In  refpect  of  the  Perfon  of 
thcGrantor,  and  that  bythcCommon  Law,  and  ablbhuely ,  as  Infants, Monks,  or  Secundum  quid,and  not  fini- 
liciter,  as  Ideot,  Non-compos, Feme  Covert,  unlefs  by  Fine  and  Recovery  &c.  or  by  the  Statute,  as  Deans, 
&c.  by  I ; Eliz.  &  Archbilliops  Sec.  by  I  lac.  cap.  5.  zdly.  By  reafon  of  the  Nature  of  the  Thing  granted ; 
As  if  Donee  m  Tail  holds  of  his  Doner  by  Fealty,  and  the  Donor  by  Deed  inrolled,  grants  the  Fealty 
to  the  King,  it  is  merely  void  ;  becaule  it  is  an  Incident  infeparable  to  tlie  Reverfion  ;  So  of  Grints  of 
F"ounderfliip  by  the  Founder,     ^dly.  In  rcfpect  of  the  filiate  of  the  Grantee,  as  if  Tenant  in  Tail  of 
Lard  by   Deed  inroU'd,  grants  it  to  the  Queen  by  Deed  inrolled  in  Fee,  this  w  ill  not  bind  hi-^  Illue. 
4th]  v.  In  relpeCt  of  the  Manner  of  the  Grant,  as  if  one  felled  in  Fee  of  Land  grants   it  after  his  Death 
to  the  Qiiecn  her  Heirs  and  SuccelTors  &c.  which  have  no  legal  Foundation,  and  are  againit  the  Rule.s 
of  Law.      5thly,  In  refpeCt  of  Omiiiion  ofany  Circumlfance  lequifite  by  Law,    but   having  firm  Com- 
mencement; As  if,  in  Satisfaction  of  a  Debt,  or  for  Money,  or   other  good  Confideration,  he  Grants 
to  the  Queen,  her  Heirs  and  SuccelTors,  and  this  Deed  never  was  inroll'd.  1 1  Rep.  66.  b.  76.  a.  Scc.Pafch. 
15.  Jac.  Magd.  Coll,.  Cafe. But  the  Reporter,  pag.  77.  b.  -S.  tells  the  Reader,  That  there  is  a  Dif- 
ference between  a  General  JB,  viz.  (by  or  from  any  Perfon  or  Perfons,  Bodies  Politick,  or  Corporate)  as 
the  faid  Act  of  iS  Eliz.  is,  and  an  .^r/  '•johich  [pecifes  particular  Kinds  of  Bodies  Politick  and  Ccrpor.ite;  As 
the  Statute  of  E.  6.  cap   14.  of  Chantries,  which  enaCts,  That  every  Gift  8cc.   made  to  the  late  King, 
liis  Heirs  &c.  or  to  the  now  King,  his  Heirs  &c.  by  any  Archbilhop,  Bifhop  &c.  ot  any  Manors  &c.  to 
the  faid  Archbilhop  &c.  belonging,  fliall  be  good  and  effectual  in  the  Law,  to  all  Intents  and  Purpofcs; 
And  the  Reporter  fays.  That  if  Tenant  in  Tail  grants  his  Land  to  the  ^teen,  fuch  Grant  is  good  againit 
th.e  Iffuc  by  the  Statute  iS  Eliz.    For  the  Perfon  of  the  Tenant  in  Tail  is  able,  and  he  has  Powerupon 
theLand  ;  and  that  fo  in  5il«li2l)an'0  Cafe,  Mich.  ;2.&:  ;5.  Eliz.  B.R.  But  W  Baron  and Fe»;e^  by  Deed 
grant  the  Land  of  the  Feme  to  the  Qiicen,  this  is  not  made  good  by  the  faid  ACt,  to  bind  the  Feme  afrer 
the  Coverture,  or  her  Heirs ;  For  there  the  Perfon  of  the  Feme  Covert  is  difabled  to  convey  her  Land, 

unlefs  by  Fine  upon  due  Examination,  and  fo  alio  was  it  held  in  Vaughan'.s  Cafe. There  is  a  Note  in 

Cro.  1-564  Hill.  12.  Jac.  B.  R.  where  the  laft  above-mentioned  DiltinCtion  is  faid  by  Coke  upon  the 
Argument  of  Warren  and  Smith's  Cafe,  tohave  been  adjudged  in  50.  Eliz.  inlgatoO^fif  (£afl'.  [But  this 
feenisto  be  meant  Vaughan's  Cafe,  and  only  mifprinted  ;  tint  fin-  the  better  explaining  the  Dirf'erence, 
obferve  the,  Diverfity  taken  by  Lord  Coke, as  above,  between  the  two  Statutes  of  i.  E  6.  cjp.  14.  and 
this  of  iS  Eliz.  cap.  2.  the  above  DiftinCtion  holding  in  the  one  Cafe,  bat  not  in  the  other,]-— This  Sta- 
tute e>:tend.>  only  to  make  good  Fnperl'eHions  in  Circtimjlances  and  not  in  SiihjliOicc,  which  is  the  Real'on 
that  it  makes  notgood  a  Leafe  to  the  King  by  an  Infant  Arg  Lc.  534.  pl.  467. 

The  Queen  Provided,  ^hat  all  Patentees,  -jDho  have  Jince  Nav.  18.  or  p^all,  during 
was  felled  of  ^/-,j;  Space  of  feveu  Tears,  ptirchafe  or  get  of  the  ^leen  any  Manors  i3c. 

D^n^efrr,-"'rf" '^^^"'''^'^'  ^^  ^^■'"^  ^'^'■'^^'"S '^  ^'^^'^"^^■)  '^''''"^j  or  ft  all  be  Of  more  yearly  Value  to 
a  Priory  of   the  .Ghiceu,  and  fo  anjwered  in  yejrly  Rent,  or  Fermc,  than  fpceifed  in  any  fuch  . 

tlie  annual  Patents, 

\'a'.ue  of 


Prerogative  of  the  King.  1 1  q 

cr  if!  th  Particulars^    or  Rate  thereof,    made  by  any  Anditur-Siirveyor,  or  61.  4<i  ir-d. 
OjJKer  ;  then  every  ftich  Patentee  &c.   their  HenSj  Executors  i^c.  within  one  an^l  of 'divers 
J'ear  ajtcr  Office,  or  other  due  Proof,  Order  or  Decree  thereof,    had  or  made,  \ny^'^\\l^'^\ 
or  to  be  made  wit  hut  teiiJ'ears  after  the  End  of  the  prefent  iSeffion   of  Parlia-  the  ycai-l'v 
meiit  ^c.Jhdll pay  for  f tic h  Overplus  after  the  Rate  of  60  J'ears   Purchafe,  V:ilu-ori9l. 

accurdifi"  to  the  Value  anfwered  at  the  Time  of  makinz  fuch  Patents.  ""''  "*^  ^^""^ 

■^  •'  .  KcAoryof 

of  A.  of  the  Value  of  10  I.  And  J.  S,  intending  to  purcliafc  of  the- Q^ieeti  tlic  faid  Scite  and  Dcmclries 
proLured  a  Particular  to  be  made  accordingly,  and  obtained  Letters  Patents,  by  which  Letters  Patents 
the  :^iee>i,  uithout  Intention  of  the  Purih.rfer  to  ha-ve  move  p.tfs  to  hiu;  thnn  the  Scitc  and  De>iieft:cs,  g.r'jc  thr. 
J.tui  ■icitc  and  Deinefnes,  and  the  other  Lands  and  Rechry  ;  and  fo  the  Patentee  hnd  more  than  v. as  any 
wavs  meant  or  intended.  The  Queftion  was.  If  the  Patentee  fliould  aniwer  accordin;^  to  the  Rate  of 
60  Years  Purchafe,  mentioned  in  this  Statute  ;  For  in  the  Particular,  no  P.ate  or  Value  w  as  made  of 
any  of  the  La'  dsor  Rectory,  but  only  ot  the  Scite  and  Demefnc?;,  nor  was  there  in  the  Patent  any  Value 
of  any  I'art :  Wherefore,  hnce  the  Statute  (Jys,  That  the  6o  Years  Purchafe  fhall  be  paid  for  the  O- 
verpkis  aud  Value,  which  is  more  than  is  contained  in  the  Patent,  farticular,  or  Rate ;  and  liere  is  no 
Value  of  them  in  the  Particular  or  Patent,  it  was  l-.eld  by  (bme  that  notliin;;  fliouId  be  paid  to  thc(^uccn; 
But  the  Cafe  coniidered,  it  appears,  that  the  Intention  v,m,  that  flic  fnould  have  Satisfaction  for  fb 
much  as  fhe  did  not  intend  to  pafs  according  to  the  annual  Value  ;  and  the  VS'ords  are  to  this  Purpofe  ; 
For  tho'  there  is  no- Value  of  ihegreater  Part  of  the  Tenements  granted  by  her,  made  in  the  Particular 
or  Patent,  \  et  they  were  demifed  for  Rent,  which  was  a  Rate  made  by  the  Officer,  and  lb  remains  in  the 
or  Account  of  the  Auditors;  But  if  the  Queen  had  granted  a  tflod  or  other  Thinir,  which  never  had 
been  rented,  it  was  held  by  the  twoCh.  J.  and  Bafon  of  the  Exchequer,  That  in  fuch  Cafe  flie  had  not 
been  aided  by  the  faid  Statute.  And.  no.  PI.  l  5  5 .  Anon. 

H.  S.  in  the  55d  Year  of  his  Reign  made  a  Leafejcr  }'eari  fo  the  Earl  of  B.  ef  tie  ReBory  of  Bridg- 
icaier,  and  cj  the  T'lthcj  of  t'U.'O  Hamlets  in  IF.  parul  of  the  Relhry  cj  IF.  the  Refdue  of  ivhich  Reidoiy  zeas 
demifed  by  the  hin![  at  lo  /.  a  fear  Rent,  and fo  continued  in  Deniije  till  i  Eliz.  "when  A.  purchafed  of  ^<een 
Eliz  the  Reilcry  of  IF.  at  the  Valt:e  of  lo  I.  a  }'ear,andhad^^enerallf'iirds  of  the  tithes  of  tieo  Hamlets,  hut 
tio  Recital  oj  tie  Leafe  of  the  Earl  of  B.  then  in  Ejje,  and  thereby  Jl>e  granted  the  RcHory  of  B.  and  the  Tithes 
cf  tv-'o  Hamlets,  and  all  contained  in  the  Earl  of  h'l  Leafc,  to  the  (.'orpcration  of  Bridgivater.  Afterwards 
Bfjfleville,  the  Sonof  A.  after  this  Statute  of  iS  Elii.  which  had  Retrofpeic  to  the  Beginning  of  her 
Reign,  claimed  the  Tithes  ot  the  faid  two  Hamlets  againlt  the  Corpor.ition  ;  Upon  this  a  Bill  was  pre - 
ferred  in  the  Court  of  \\'ards,  and  it  was  agreed  byCounfel  on  both  Sides,  That  the  Patent  made  to  A. 
was  void  at  the  fiift,  as  tothe  Tithesof  two  Hamlets,  for  Want  of  RcLital  of  the  Leale  thereof  then  ii 
ElVe  to  the  Earl  of  B.  and  fo  continued  void  till  the  Statute  of  iS  Eli?..  Two  (.>ueilio-is  were  made,  id. 
If  the  Statute  ot  18  Eh?,  will  mahe  tiie  Grant  good  by  i'.  elation  i-.g.iinft  the  Corporation  of  B  who  liad 
taken  Kcw  Grant  ot  the  Tithesof  the  two  H.imlets  in  5  Eli/.,  becau'e  the  Statute  Is, That  Pateiits  made  fun  <• 
2.  y^ov.  1  Eliz-  jiiall  be  gcod  againft  lie  .■^hicen's  .Uajefly,  l^cr  Heirs  and  Sitcceffors,  notii-ilh/landing  Non-recital 
idly,  If  the  Deceit  in  under-valuing  the  faid  Tithes  of  the  two  Hamlets,  v/hicli  made  the  Grant  void, 
be  remedied  by  the  Statute  alfo  by  Relation  ot  the  I'atcnt  made,  or  of  the  Statute  made;  And  it  was  ar- 
gued. That  the  Patent,  without  Recital,  is  mad.-  good  againll  the  (.hieen,  her  Heirs  and  Succeliors,  but 
not  againll  others,  and  confequently  not  againll  the  Corporation  of  B.  Afterwards  by  the  Opinion  of  the 
two  Ch.  |.  it  was  agreed  againft  BolleviUe.  Mo.  151.  pi.  2-S,  Trin.  25  Elii.  BolTeville  v  the  Corpo- 
ration of  Bridgwater.  —  2.'\nd.  19?.  S.C.  by  Name  of  t.iUllfbifll  tl.  tl)f  (iLOrFOratlOU  Of  ©nOgtortr 
fav.s.  The  Grant  to  the  Corporation  of  Bridgwater  was  tor  a  1  Years,  and  the  Grant  to  A.  w.is  to  him  and 
his  Heirs,  and  the  Leafe  to  the  Corporation  was  agreed  to  be  good  ;  For  the  Intention  of  the  Statute 
was  not  to  make  good  Grants  void,  but  void  ones  good,  and  that  the  Inherit.ince  fhall  be  in  BolTeville, 
by  reafon  of  this  Statute,  which  makes  it  good  againll  tlie  Queen.  And  that  if  there  are  two  Lcafes  made 
by  the  King,  whereof  thehrlf  is  void  &c.  and  the  2d  good,  the  fecond  remains  good  and  the  hrit  void  — 
Skv.  58.  S.  C.  reported  thus,  viz.  J.  S.  was  poilefs'd  of  a  Leafe  for  Tears  of  a  Manor,  of  the  Dcnii'e  o*  the 
Queen.  J.  tcck  a  new  Leafe  in  2  Eliz.  tor  21  Years,  witlcut  reciting  the  Leafe  to  J.  S.  for  which  Rea- 
fon this  fecond  Leafe  is  void.  Alterwards  Ecffeiille  got  a  third  I^cafc  for  50  )  ears',  irilh  a  Recit.il  of  the 
former  fnterejh.  It  was  agreed  by  all  the  JuUiccs  av,d  Barons  allembled  at  Serjeant's  Inn,  that  by  rhi.s 
Stitute  all  [-"atents  are  made  good  agairft  the  Queen,  her  Heirs  &c.  but  not  ag-ainlt  her  Patentees  and 
AlTignees ;  and  tb.at  to  make  the  Leafe  to  A  to  be  good,  which  was  void  at  the  Commencement,  would 
be  a  hard  Conftruction  of  the  Statute. 

The  Queen  made  a  Leafe  ot  Lands  to  A.  and  grat.ted  tie  Raerficn  to  J.  S.  nifrccifing  the  Tenant's 
Name,  and  afterwards  made  a  third  Grant  to  IS  R.  iiith  a  true  Recital  of  the  '■7 enant's  Name  ;  and  after- 
'Lvards  this  Statitle  aias  made  ;  this  fhall  not  revive  the  nrtl  [2^^]  Grant,  hecauieh  was  utterly  defeated 
before  the  Statute.  Cro.  E.  S:,8.  lays,  This  was  cited  to  be  reliilved  by  Advice  of  the  judges  in  the 
Court  of  V^'ards,  in  one  BriDcU'attr's  Cale;  and  that  all  the  Julliccs  now  affirm'd  it  to  be  good  Law. 
Hill.  45  Eli?..  C  B.  in  Cafe  of  Child  v.  Low. 

A.  leifed  in  Fee,  was  attainted  in  a  Premunire,  but  before  Trial  gave  liis  Land  in  Tail  to  J.  ."s. 
Afterwards  he  was  attainted  of  Premr.nirc,  and  this  was  found  by  Otfice  under  the  Exchecuer  Seal. 
Queen  Elizabeth  granted  thefe  Lands  to  C.  under  the  Great  Seal,  within  the  Time  of  the  Provi'b  of 
18  Eliz.  cap.  2  Re'blved  that  the  Grant  by  the  Qiicen  was  not  good  at  Common  Law,  becaufe  upon 
the  Attainder  the  Franktenement  was  not  diverted,  and  vcfted  in  the  King  till  an  Office  fuU'id  thereof, 
which  ought  to  be  an  Office  of  Intitling,  and  not  of  Information  only  of  tl;e  Particulars  of  the  Lands; 
and  alfo  refolvcd,   Tlwt  this  Grant  is  not  aided  by  this  Adt  of  18  Eliz.  for  tie  Intention  of  that  Statute 


was  to  make  a  Grant  gcod,  where  the  Eflate  of  Franktenement  was  jettled  in  the  Kii:!',  and  no  Office  f'otird; 
In  fuch  Cafe  this  vStatnte  aids  the  Defect  of  finding  an  OtHcc,  according  to  the  Statute  pf  1 8"H.  0,  cap. 
6.  but  not  to  make  a  Grant  good,  where  ;Iic  King  has  not  any  Efi-te  bcibre  OSlce  found      idly.  This 


wc 
III 

6. 

y  f  ttatu:« 


1 1  zj.  Prerogative  of  the  King. 

Sraturc  makes  the  Grant  good  againlt  the  King,  his  Heirs  and  Succellbrs,  and  not  againft  a  Stranger  ; 
and  tiierefore  does  not  defe.it  tlie  Ellate  of  the  Donee  in  Tail  ;  and  lb  upon  tliis  Point  without  Argu- 
ment, Judgment  was  given  for  the  Defendant.     Jo.  217.  I^lich.  5  Car.  B.  K.  Groilc  v.  G.^ync  ■ 

Cro  C.  172.  pi,  iS.  6.  C. 

9.  The  ^!/a'U  dcmifcd  a  ReBory  to  the  Churchwardens  of  S.  for  zi 
Tears,  and  atterwards  by  Letters  Patents,  reciting  the  firjl  Grants  and 
that  the  Church-wardens  had  furrendered  all  their  Eitat-e  for  V^ears, 
(Modo  habentes  &  ad  prtelens  Poflidentes)  <?Cc.  ihe.  ///  Confidcrativn  of 
the  laid  Surrender^  and  lor  a  Fine  of  20  /.  &c.  dennfed  the  laid  l^ettory 
to  than  for  $c  Tears.  It  was  adjudged,  That  there  need  not  be  any  ac- 
tual Surrender  of  the  firll  Leale,  becaule  the  \\  ords  in  the  lecond 
Leafe,  (viz  )  Modo  habentes  &  ad  prtefens  Poiridcntes  import,  that 
they  were  then  poifelfed  of  the  hrll  Leafe,  and  their  Acceptance  of  the 
new  Leafe  for  50  Years  «'^j  in  Judgment  of  Law  a  Surrender  of  the  /irjl 
Leafe  for  2.1  Tears .^  and  Ihall  precede  it,  and  that  a  Corporation  may 
make  a  Surrender  of  their  Term  by  an  Ail:  in  Law  without  Writing, 
tho'  not  an  exprefs  Surrender  without  Writing.  And  the  Reporter 
adds,  That  he  had  feen  feveral  other  Letters  Patents  made  on  the 
like  Conhderation  of  a  Siirre)uier.^  with  the  Words  (Modo  baldens  S  P<'//i- 
dens)  in  none  of  which  there  was  ever  any  actual  ^rrender  made.  10 
Rep.  66.  b.  Trin.  11  Jac.  in  Scacc.  Church- wardens  of  St.  Saviour's 
Cale. 


(R.  b.  2)  Recital  and  Pkadhjgs. 

S  C  cited  i.tN  the  Patent  to  A.  to  be  quit  of  Colleclion  of  Tenths  it  was  recited, 
I  Rep.  43.  i  That/yr  as  much  as  the  Abbey  ts  the  free  Chapel  of  the  King,  he  grant- 
^v  cod's  cTfe.  ed  that  the  Abbot  frail  le  difchargcd  of  Collcffion  of  Tenths,  and  therefore 
''s.C."  he  ought  to  aver  the  Recital  of  the  King,  upon  which  it  is  [viz.  that  it  is] 
cited  I'l.C.  (the  free  Chapel  of  the  King)  and  becaufe  he  did  not,  therefore  ill  ; 
455  Trin.  ^^^  Hufley  Ch.  J.  e  contra.  And  per  Cur.  the  Patent  was  difallowed 
Si'rTho"^  becaufe  it  was  ill  pleaded,  in  as  much  as  he  pleaded  it  quod  continetar 
Wroth"^  inter  alia,  thatfuch  a  Thing  was  &.c.  and  dtd  not  a-ver  it  m  faif  ;  but  it 
Cafe.  was  faid  per  Cur.  That  at  another  time  he  lliall   have  Advantage  of  the 

Patent,  and  fo  it  is  not  loft   for  ever.  Br.  Patents,  pi.  71.  cites  21  E.  4, 

47. 
S.  C  cited         2.  Jnd  where  the  King  recites.  That  whereas  I  have  done  him  good  Ser- 
PI.C.455.     ^^,y^.^^  and  am  Decrepit  and  Lame,  therefore  he  grants   tome  &c.  there   I 
W^rotlTs^"     need  not  to  aver  the  Service  nor  Relidue  in  the  Rehearfal,  where  the  Pa- 
Cafe"" '       tent  is  Ex  ccrta  Scientia  ^  Mero  Motii ;  for  there  the  Rehearlal  is  void, 

and  the  Patent  good  ;  Per  Hulfey  Ch.  J.   Ibid. 

3.  Otheriaife  it  is  where  the  Sarmife  comes  of  the  Part  of  the  Party 

4.  As  where  the  YJing  grants  a  Manor  which  cfcheated  to  him  &c.. 
and  in  truth  tt  is  his  Inheritance  tht  Patent  is  void  j  For  it  arifes  of  a 
folfe  Surmife  of  the  Party  himfelf,  but  where  it  comes  from  the  King, 
and  not  from  the  Party  the  Rehearlal  is  void  and  the  Grant  good. 
Quod  Curia  conceffit.    Ibid. 

5.  But  where  the  ¥Jing  grants  Land,  in  as  much  as  the  Grantee  froall 
releafc  all  his  Right  infucb  Lands  to  the  King,  there  he  ought  to  aver  that 
he  isas  rekafed  accordingly.     Ibid. 

S  C.  cited  6.  So  where  the  King /or  Service  performed  Grants  to  a  Man  Land,  this 

^•.^'^'5r   is  good,  tho'  he  did  no  Service ;  Per   Fairfax  Juftice,  and   therefore  it 
Trin.  15  E-  ^^gj^     jI^.^j  ^here  is  a  Diver/tty  "where  the  King  hnnfelj  takes  Gnufunce  of 

117,  in  Ml  3  w 

Thomas  ^'^^ 


-  I  _  '  '  ^  ^  i         ..  I   ^lii  .1         ■.  ■■    III..  ■    I  II  ,     ,,,,,  ;| 

Prcro^ati\  e  of  the  King.  1 1 5 

the  Siirmife  or  Confideration,    aud  ichers  the  King  has  it  by  Information  vVrorlri 
and  Surmife  of  the  Patentee.     Ibid.  ^^''^* 


(S.  b)  Grant  of  the  King.  Repealed  by  or  without  Sd« 
re  facias.  In  what  Gaies  a  Patent  may  be  repealed  and 
made  void  ^jo'tthont  Scire  facias. 

i.Tif  tljC  Patentee  Of  tIjC  Irting  of  an  OfHce  commits  a  Forfeiture  by  y\'herc there 
X  Condition  in  Facl,  or  in  Law  broken,  tf)e  1^(115  \\W>  OUil  \}{\\\  bC^ '' '""'""  ^''- 

fore  anp  ^clrc  faciasi  ijtautcn,  or  ©fficc,  or  mmn  of  aitp  neiu  p^v  Hf/Ji-"/ 
rent.  Co.  9*  SirG.ReyMii.  95,  b.  Dp,  3^1. 19s.  50.  auD  ^n.  z^.tedaCau/e 

contra,  of  Forfeiture 

cf  an  O^ce, 
'■^hereof  thr-Kin^  has  not  made  any  nea  Patent,  there  the  Patentee  fhall  not  be  ouded  by  the  Kinp-  linlefs 
by  Scire  Facias  at  the  King's  Suit  ;  Per  the  Reporter.  D  19S.  a.  pi.  50.  who  (ays.  He  infers '^it  from 
certain  Precedents  there  cited,  and  that  the  Keafon  Teems  to  be,  That  he  who  h'  placed  in  an  Ofice  hy 
jUatter  of  Record,  'whereof  the  Kin!(  has  Notice,  cit^ht  not  to  be  remo'ued  but  hy  Matter  of  Record  vi?..  by  Sci- 
re facias  and  Avoidance  of  the  Letters  Patents  &c.  and  cites  S.  P.  between  Sir  Robert  Chefter  and  Ld 
Haftings. 

If  the  Forfeiture  be  of  an  Office  ftr  Life,  tho'  the  Conviftion  be  of  Record,  yet  there  muft  be  a  Sci^ 
re  Facias  ;  Per  Holt  Ch.  J.   li  Mod.   79.  But  otherwife  of  an  O&ce  at  (■fill.     The  King  v.  Kemp. 

2*  UftfjC  Kino;  grants  Land  by  his  Letters  Patents  under  the  Great 

Seal,  ann  m  tlje  loiocr  part,  after  all  tSje  ]-5atent  ennca,  it  isi  put  (per 
Warrantum  Commiiiion.)  tijis  beuio;  uone  \}v  B^arraiit  of  tlje  €om- 
nntnoner0  of  defective  Titles  upon  Compofuioii  UJitO  t!)cm  maoe, 

it  the  Commiliioners  had  not   an    Aurhoritv    bv  their   Commiiiion   tO 

v.mU  anp  Conipofition  in  tljis  Cafe  Up  "tnrce  of  tijetr  CaatiiiirnoiT, 
miti  fo  ti)i0 10  out  of  tljetr  Coiumiffsan,  tljofe  letters  |3atent3  are 
1)010  m  laui  Uittijout  anj>  gjctrc  facial  to  repeal  tiiCeii,  am  it  10 
0000  pieaomg  [to  lav]  Non  conceiiit  &c.  nsjaiiiil  tfjofc  lettei:0  |i5a= 
tent0.  Crm.  12  car.  15.  Kot.  344^  345,  benoeen  Be/htey,  Betts,  ani 
Onvay  fortljeDicariOijeofCatcrasmCom.  CanibriOiTcin  a  dua- 
re  JmpeOit ;  KciolucD  per  Curtain  upon  (Sbioence  at  ttje  Q5ar,  ana 
tijej^laintiffnonfuiteo  upon  ti)i0  Eefolution,  CBut  qu*re  ijoiu  this 
Averment  dehors  uiiip  be  tahen  ajjauift  tl)t  Iciters  3tf3atent0,  tijc 

JDOrOS  Per  V\  arr.  Commill!  not  being  n  ithin  the  Bodv  of  the  Patent, 

luit  alter  all  tijc  i3atent  enOeo.)  I5ut  it  fecni0  tiji0  aiseriuent  map 
toell  be,  ma0mttcOa0  m  tlie  Commiffion  it  i^appomteo,  ti)atup= 
on  tDc  ilBarrant  of  tlje  Cornmiffioncrs  tl)e  Piitcnt  n>;dl  paf0  unOcc 
tljC(^rcata^ealu?itl)out  ctijer  itBarrant,  anO  in  tfjeeno  oft!)e  j^a^ 
tent  10  put  (per  J^arrant.  Camuiifrionar.)  irjicij.  16  car.  03.  E» 

betuiecn  -P/f-^"/  ec  and fjm.  ano  ot{jcr0,  per  Curiam  upon  C-- 

SJiOence  atl5at. 

3.  Patent  of  the  King  fliall  be  rcverfed  in  Chancery  hy  Suit  there  cn!y.  Scire  Facias 
hy  Petition^  Traverfe,  or  Monjh-ans  de  Droit,  and  Scire  facias  theretip-  to  repeal  the 
m.  Br.Jurifdiaion,pl.  102.  fbisj  cites  21  E.  3.  46.  tent  fan  only 

be  in  Chan- 
cery. Br- Petition,  pi.  11.  cites  21  E-  %.^-. Where  the   Kin^  grants  the  Land  by    Patent,  and 

cw  comes  and  traverfes  the  Office,  he  ought  to  have  Scire  Facias  in  Chancery  againft  the  Patentee  before 

Iflue  joined   Br.  Scire  facias,  pi.  185.  cites  14E.  4.  i.  6. Br.  Traverfe  de  Office,  vl.  '9.  cic-s 

S.C. 

4.  If  the  Kinghe  feifed,  be  it  right  or  ■wrong,  a   Man   iliall  fue  to   him 
by  Petition  ;  Per  VVilby  i  Quod  Nota  j  and  this  uhere  the  King  en- 
ters 


ii6 


Prerogative  of  the  King. 


tcrs  or  (eires  without  Office  as   it  fccms,  but  upon  talic  Office  a  Man 
may  Traverfe.  Br.  Petition,  pi.  12.  cites  24  £.  3.  55. 

5.  A  hlimjlrtick  a  Juror  at  Wcjlminjler  who  pnlied  againft  him, /'or 
ivhtch  he  was  adjudged  to  Prifon  for  his  Life,  and  his  Hand  to  be  cut 
c^ti",  and  his  Lands,  \cifcd  into  the  Hands  of  the  King,  and  the  Kin^,  think- 
ing it  had  been  tbrteited,  granted  it  to  JK  A'",  and  aftcrivards  he  pardoned 
all  the  Offence  to  the  Offender,  and  all  that  to  hnu  belonged,  by  which  the 
Heir  filed  Scire  facias,  reciting  the  Ad,  the  Grant,  and  the  Pardon,  to  fa\> 
ivhythe  Land jhoiild not  be  re-feifcd,  and  Livery  made  to  the  Heir  i  and 
the  Tenant  demanded  Judgment,  becaufe  the  Scire  facias  was  not  founded  up- 
on Record,  and  the  Charter  is  no  Warrant  of  the  judgment  &c.  Et  non  al- 
locatur, but  Execution  was  awarded.  Br.  Scire  facias,  pi.  160.  cites 
41  Air  25. 

6.  ^i/are  Liipedit  brought  by  the  Kistg  by  reafon  of  the  Cuflody  of  a  Ward 
becauie  the  Grantor  of  the  Anceftor  of  the  Infant  of  this  Aavowfon 
had  prefented  ;  and  the  Grantee  obtained  Ratification  oj  the  King  j  and  be- 
caufe it  was  perceived  that  it  fhould  be  prejudicial  to  the  King  the  Rati- 
fication was  repealed,  and  Procedendo  granted  in  the  Quare  Impedic  ; 
Qiiod  Notai  Br.  Repellance,  pi.  i.  cites  45  E.  3.  19. 

7.  Where  the  King  }'«'-/t'//t'j  or  refumes  Land  after  Livery  made  to  a 
Prior  Alien  &c.  without  Caufepewn,  the  Party  niall  have  Petition  and 
Scire  facias  agamjl  him  zvho  has  the  Land ;  but  if  it  be  re-feifcd  or  refmned 
for  Caufc  fliewn,  he  Ihall  have  Traverfe  to  the  Caufcy  and  Scire  Facias  a- 
gainft  him  who  has  the  Land  ;  Per  Cur.  and  fo  it  was  done  there.  Br. 
Scire  Facias,  pi.  55.  cites  2H.  410. 

8.  Traverfe  was  taken  to  an  Opce  which  tutitled  the  King  to  the  Land  by 

Ward  which  was  granted  by  Patent  to  A.  B. C.  came  and  traverfed  thi 

Office^  and  had  Scire  Facias  againji  A.  B.   who  was  warned,  and  did  not 
come ;  and  therelbre  per  Cur.  his  Letters  Patents  are  void.  Br.  Scire  Fa- 


Br  Confii-- 
iiiation,pl  I- 
cites  S.  C  — 
Br  Proce- 
dendo, pi. 
12  titesS.  C, 


Brooke  fiiys, 

tiic  Law 

fecms  to  be 

the  liinic 

npni  every 

Scire  Farias     cias,   pi.   I3I.  CltCS   4  H.  6.  12. 

to  repeal  a 

Patent,  if  the  Patertee  he  \yamtd   arid  makes  Default 


Ibid. 


Br,  Livery, 
pi.  15,  cites 

i,  C. 

Br  Refei- 
fer,  pi  6. 
cites  S  C. 


Br.  Livery, 
pi.  16.  cites 
S.  C. 


9.  Where  the  King  feifes  for  Felony  and  Lcafes  for  Life,  and  a  Straitger 
has  Title,  there  the  King  ihall  refume  and  make  Livery  to  the  Party; 
for  there  he  has  Reverlion.  And  where  the  King  makes  Feoffment  of 
Land  in  Ward,  in  this  Cafe  the  Letters  Patents  lliall  be  repealed,  and 
the  Land  refumed  into  the  Hands  of  the  King,  and  Livery  made  to  the 
Heir;  for  there  the  King  had  not  Fee  Simple  to  give.  Br.  Scire  facias, 
pi.  58.  cites  7  H.  4.  20. 

10.  Scire  facias  was  fued  to  repeal  Letters  Patents,  Jnafmuch  as  Kin^; 
E.  3.  was  poffefs'd  of  Land  in  ifard,  and  died ;,  and  this  came  to  King 
R.  2.  who  granted  it  for  Life,  the  Remainder  over  in  Fee  ;  and  the  Land 
was  refeifed,  and  Livery  made  to  the  Heir  Sine  Exitibus,  and  the  Let- 
ters Patents  revok'd  and  annulPd  ;  quod  nota.  Br.  Scire  facias,  pi.  63. 
cites  7  H.  4.  41. 

1 1.  Writ  oi'  Error  was  fued  upon  an  Outlawry  of  Felony,  by  which  Scire 
facias  was  awarded  againfl  the  Lords  Mediate  and  Immediate,  and  againib 
the  Tertenants  who  were  warned  ;  and  one  came  and  alledgcd  Grant  by  the  ■ 
King  for  Term  of  Life,  and  prayed  Aid  oj  the  King,  and  had  it  ^  and  after 
Procedendo  they  were  at  Iffiie,  if  the  Party  was  imprifoned  at  the  Time  of 
the  Outlawry  pronounced  or  not,  and  found  for  the  Outlaw  ;  by  which  he 
prayed  that  the  Outlawry  be  reverfed,  and  the  Letters  Patents  repealed  ; 
which  was  denied  him  ;  Whereupon  Judgment  was  givtn  that  the  Out- 
lawry be  reverfed,  and  he  rejlored  to  the  Conunon  Law,  and  to  all  that  he 
loft  for  this  Caufe;  and  as  to  the  Letters  Patents  they  would  advife  ; 
but  by  this  Judgment  of  Reftitution  he  lliall  re-have  his  Land;  Per 
Gafcoign  and  Huls;  but  Tyrwhite  contra,  betdre  another  Scire  tacias 
fued;  and  he  jield  Itrongly,  t\\An  he  pall  have  another  Scire  facias,  and 
thereupon  the  Outlaw  pleaded  Pardon  ot  the  King  of  the  Felony  ;  and 
it  'A  as  allowed.     Br.  Scire  facias,  pi.  76.  cites  11  H.  4.  53. 

12.  If 


Preroaative  of  the  King.  1 1 7 


12.  W  7'raverfe  of  Office  is  teiider\l,   and  the  Plaintiff'  takes  the  Land  to  ^.'■■.^■'^^"''' 
7arm  according  to  the  Statute,  and  finds  Surety,  ;ind  iifter  it  is  azvarded  g  c.lin-^novv 
that  the  ^raverfe  does  not  lie,  by  this  the  Fann  and  Surety  is  difcharged,  \x,  aY>fcM-» 
viithoiit  i'uin^  Scire  facias  to  repeal  the  Patent  of  the  Farm.     Br.  Scire  la-  that  the 
cias,  pi.  172.  cites  4  E.  4  29.  noTiik'''*' 

13.  Where  a  Mm  travcrfcs  0/^\e  for  Land,  Office  Sic.  which  paffies  for  ^° 
him,  and  againll:  the  King,  there  he  /hall  have  Scire  facias  agahijl  him 
•who  has  It  of  Grant  of  the  King  of  Eflate  certain,  as  for  Lite,  or  Durante 
niinore  tetate,  or  the  like  ;  contra  again fl  him  iJuho  has  only  the  Occupa- 
tion at  U  ill.     Br.  Scire  i'acias,  pi.  173.  cites  5  E.  4.  3. 

14.  Where  the  King  by  his  Letters  Patents  dated  i/?  Alay  grants  to 
nie  an  (office  or  other  Thing,  and  after  by  other  Patents  dated  zd  May, 
he  grants  the  fame 'Thing  to  a  Stranger,  thofc  fecond  Patents  are  merely 
void  i  and  yet  I  fliall  ha\  e  Scire  facias  againit  the  fecond  Patentee,  and 
avoid  chofe  lall  Patents  by  judgment  of  the  Court.  Per  Cur.  Keilvv- 
196.  b.  xMich.  9  H.  8. 

15.  Scire  facias  to  repeal  the  Grant  oi  the  Office  of  Rememhrancer  vf 
the  Exchequer  to  one  Blague,  made  18  H.  7.  and  afterwards  in  the  3  H. 
8.  he  was  made  Baron  oi  the  Exchequer,  Qiiam  diu  fe  bene  gelferit  iu 
eodem  Officio  Earonis.  Afterwards  H.  8.  at  the  RequeA  or  Blague, 
granted  the  faid  Office  of  Remembrancer  to  Blague's  Son  for  Life,  To 
Have  after  the  Surrender  or  Dcmife,  feu  aliquo  Modo  quocunque  & 
quandocunque  vacate  contigerit.  And  becaule  Blague  had  no  legal 
Kilate  alter  fiis  being  made  Baron,  upon  Scire  ficias  returned,  and  De- 
fault made  Judgment  v\'as  gi\en  to  revoke  the  lalt  Patents  &;o.  D. 
19'7.  b.  198.  pi.  47.  cites  Hill    15  H.  8.  Blague's  Cafe. 

16.  Scire  facias  illued  to  repeal  a  Grant  of  the  Office  of  Bailiff  of  the 
Hundred  of  C.  ivbich  P.  the  Plaintiff'  bad  iy  Inheritance  in  Fee  Simple, 
and  was  expulfed  &c.  by  Colour  of  Letters  Patents.  Upon  the  Scire 
facias  return'd,  and  Nil  Dicit,  the  Patent  was  revoked,  and  P.  reltored 
to  the  Office  L'na  cum  Exiti bus,  with  a  Salvo  Jure  cujullibet.  D.  198. 
a.  pi.  49.  cites  Hill.  28  H   8.  Penvvarren's  Cafe. 

17.  The  Lord  Ch.  J.  Uxooke  granted  to  G.  the  Office  of  Protbonotary  o^  z  hnA  nS. 
C.  B.  and  aft erivards  revoked  it  without  a  Scire  facias,  tecaiife  he  was  ^- *-•■ 
incapable  to  execute  that  Office,   and  granted  it  to  another  i   and  there- 
upon a  Precedent  was  Ihewed,  5  Ed.  4.  where  the  Office  of  the  Clerk  of 

f/'e  Croa'w  was  granted  to  one  Vyntner,  and  Croxon  who  died  i  and 
then  Vynter  exhibited  his  Patent,  and  prayed  Admittance  i  but  the 
Court  would  not  admit  him  to  the  Office,  becauie  he  was  unexperienced 
in  it ;  and  his  Difability  being  lignified  to  the  King,  Ore  tenus,  without 
a  Scire  tacias,  he  commanded  them  to  fwe^r  and  admit  another.  Dyer 
150.  b.  pi.  I.  Mich.  4  &  5  Ph.  &M.  Vyntcr's  Cale. 

18.  Sir  Maurice  Berkly  having  the  Office  of  Banner- hearerpip  in  the 
Field,  f/irrender'd  the  fame  hcjore  a  Maffcr  in  Chancery  otit  of  Court,  but 
did  not  deliver  up  his  Letters  Patents  to  he  cancelled  ;  this  Surrender  was 
accepted  and  recorded  by  the  faid  Mafter ;  and  thereupon  the  Office 
was  granted  to  Sir  John  SuUyard.  Atterwards  Sir  Maurice  Berkley 
brought  a  Scire  facias  to  repeal  the  Grant  to  SuUyard.  And  the 
Q^ueltion  was,  Whether  the  faid  Record  was  fufficient  to  make  a  Sur- 
render, or  not.  But  the  Matter  was  compounded  by  the  Lord  Keeper, 
Ex  Allenfu  Partium^  and  Sir  f.  S.  was  removed,  and  Sir  Maurice  was 
■reltored  Sine  Exitibus  vel  Feodis  medio  tempore  rcceptis.  D.  176.  pi. 
29.  Hill.  2  Eliz.  Sir  Maurice  Barkley  v.  Sir  John  Suliard. 

19.  The  Tenant  of  the  Plaintilf  awwjrrt^  the  Land  to  the  King,  and 
the  King  conveyed  to  a  Corporation ;  fo  as  in  Rigour  of  Law  the  Seigniory 
of  the  Plaintiff  was  extinguilhed;  but  the  King  was  deceived  in  his 
Grant;  for  he  was  made  an  Pnjlr anient  to  do  \\'rong,  to  deprive  the  Plain- 
tiff of  his  Seigniory,  and  therefore  the  King's  Grant  was  \oid.  Upon  the 
■whole  Matter,  Ibrafmuch  as  the  PlaintilPs  Tenant  can't  have  the 
Land,  becaule  he  has  conveyed  it  to  the  King,  and  the  King  can't  hav- 
the  Land,  bccaufe  of  the  \\  rong  it  would  (.\o  to  the  Fj.unrirf  as  to  his 

G  g  Seigniory, 


1 8  Prerogative  of  the  King. 


.Seigniory,  theretore  the  faid  Letters  Parents  ihall  be  repealed,  li  ih^ 
PlaintiiPs  Tenant  had  conveyed  the  Land  to  the  King  by  Deed  in- 
roU'd,  or  had  been  attainted  oi  Treafon,  and  the  King  had  granted  it 
to  a  common  Perfon  to  hold  of  the  Kings  now  the  Seigniory  of  the 
Lord  in  this  Cafe  had  been  extinguifhed  j  but  the  King  upon  Petition 
ought  to  repeal  this  Patent,  and  grant  it  fo  that  the  Seigniory  of  A.  fhall 
revive.     Jenk.  22.  pi.  40. 

20.  Upon  a  Scire  facias  againft  Richard  Earl  of  Dorfet,  and  others, 
Members  of  Sackvill-College  in  Ealt  Grinlted  in  Sullex,  to  Ihew  Caule 
"tvhy  the  Patent  of  Incorporation  Jbonld  not  he  repealed,  fo  far  as  it  concerns 
Edward  Earl  ot  Dorfet,  and  the  Heirs  Males  of  Robert  Earl  of  Doriec 
the  Founder  i  the  Writ  recited  the  Will  oi  Robert ,  who  devifed  to  bis 
Executors  &c.  that  they  Jhoiild  Found  and  Eiidoisj  the  faid  Hofpital,  and 
make  By-Laws,  and  that  the  Heirs  of  the  Founder  /hoiild  h:ive  the  Patronage 
and  Vijitation  thereof  It  recited  alfo,  that  the  Kini;  intending  to  in- 
corporate the  faid  Holpital  according  to  the  fiid  Will  conjtitated  the 
Corporation,  and  granted  Licence  to  purchafe  the  Endowment  intended  ; 
^»<^alfo  that  Edward  Earl  of  Dorfet,  who  was  Hctr  M:de  of  the  Foun- 
der, fjoiild  have  the  Patronage  and  Vifitalion;  reciting  further,  that  the 
Lady  Thanet  and  the  Lady  Compton  are  Heirs  of  the  Founder,  and 
that  Eduard  Earl  of  Dorfet  had  taken  upon  him  the  Patronage  and  Vili- 
tation;  to  the  Diiinherifon  of  thofc  Ladies:  Upon  this  Scire  ficias 
Richard  Earl  of  Dorfet  demurr'd.  As  to  the  Queftion  between  the 
Heirs  General  of  the  Founder,  and  the  Heirs  Male,  Twifden  J.  held, 
that  the  Letters  Patents  to  Edward  Earl  of  Dorfet  and  his  Heirs  Male 
are  void,  and  ought  to  be  repealed,  and  may  be  repealed,  tho'  they  are 
void  i  and  cited  Hill.  12  H.  7.  Keilw.  19.  a.  per  Keble.  And  that  they 
are  void  appears,  ill.  Kecaufe  they  are  contrary  to  the  King's  Intention, 
as  Hob.  223.  Anne  Needler's  Cafe  ;  loRep.  no.  b.  Vow's  Cafe.  2dly. 
The  King  cannot  deprive  the  Patron  of  thofe  Rights  which  are  appen- 
dant to  him,  which  are  Jus  Patronagii  and  Jus  Viiitandi,  which  are  in 
Earl  Robert  and  his  Heirs  j  but  the  Lord  Ch.  Baron  Hale  gave  feveral 
Reafons  why  he  could  not  give  Opinion  to  repeal  this  Patent  without 
great  Caufe.  He  held.  That  fuch  Scire  facias  lies  not  in  Point  of  Form, 
lit.  A  Patent  may  be  repealed  in  Part;  but  this  ihall  be  only  in  Claules 
independent.  Fitzh.  Petition  19.  2dly.  There  will  be  an  infinite  In- 
convenience, if  by  this  Way  Part  of  this  Patent  may  be  repealed;  for 
by  this  Way  a  good  Patent  may  be  made  nought;  &  e  contra,  sdiy. 
The  King  had  faid  How  he  will  have  this  Corporation  qualified,  and  he 
is  dead,  and  now  he  will  make  other  Patrons  after  his  Death.  4thly. 
The  King  hath  faid  How  it  fliall  be  governed,  and  NotOtherwife.  And 
here  is  no  Nece/fity  to  repeal  this;  becaufe  if  there  be  void  Claufes  they 
may  be  tried  in  Aliife,  and  therefore  the  Writ  is  ill.  2dly,  It  doth  not 
lie  for  the  Matter,  ill.  Becaufe  the  King  takes  Notice  of  the  Claufes  in 
the  Will,  which  was  delired  to  be  repealed  ;  and  therefore  he  is  not 
deceived  in  this  Grant.  In  the  Creation  of  the  Hofpital,  Sunt  tres  Ac- 
tores  fabuL-e,  i.  Earl  Robert.  2.  The  King,  whole  Right  is  to  grant 
the  Incorporation.  3.  The  Executors,  which  ought  to  endow  this  Hof- 
pital. 2dly.  The  Executors  are  not  at  any  Prejudice,  becaufe  they  are 
not  compellable  to  indow  this  Corporation,  if  it  be  not  according  to  the 
Will  of  Earl  Robert.  3dly.  If  the  Executors  haveindow'd  the  Hofpi- 
tal, being  {o  cieated,  it  is  a  Breach  of  Trull.  There  is  no  Patronage 
till  the  Foundation  of  the  Hofpital,  and  the  Heir  of  Robert  hath  not 
to  do  with  it  till  the  Foundation ;  and  the  Executors  do  not  break  the 
Trull.  The  Lord  Keeper  would  advife  ;  and  (o  it  was  adjourned. 
Raym.  154.  Trin.  18  Car.  2.  B.R.  and  177.  Pafch.  21  Car.  2.  B.  R, 
The  Cafe  ot  Sackvill-College. 

21.  In  Error  of  a  Judgment  in  Scire  facias  in  the  Petty-Bag,  which 
fet  forth,  That  the  City  of  Rochcfter  was  an  ancient  City,  and  incor- 
porated Time  out  of  Mind  till  i  Ed,  4.  who  incorporated  them  by  a  new 

Name 


Prerogative  of  the  King.  1 1 9 


Name  otScc.  That  before  and  after  that  Time  they  had  a  Market  there, 
held  every  W'cdnefday  and  Friday,  and  Toll  Sec.    And  that  the  King 
by  Letters  Patents,   7ch  of  March  Jalt  pall,  reciting   an  Inquilition  upon 
an  Ad  quod  iLiinmiii!.^    by  which  it  was _/('////(/,  Th.it  it  isjould  net  be  to  the 
Damage  oi  the  King,  or  of  any  other  Perfon,  //  the  King  jhoald grant  to 
the  Dtjcnddiit  a  Market  in  Chatham,  to  be  held  there  every  Tuefday, 
•yvhereupon  he  granted   to  the   Delendant  a  Market,  to  be'  held  there 
every  TucfHay,  Cum  omnibus  Froficuis  &:c.    prout  per  literas  patentes 
apparcti  And  thatWhereas  Chatham  is  within  a  Mile  and  a  Half  of  Ro- 
ehelter  ;  And  ^\^lereas  Datum  ell  Nobis  intclligi  by  the  Mayor  &c.  of 
Rocheller,   that  the  Writ  of  jid  quod  damnum  -ivas  executed  on  the  Day  it 
bears  Date  at  30  Allies  diflantfrom  Rcchejier.,    and  without  Notice  given 
to  the  Mayor  &C.   Surreptilioic  &  Fraudulenter  ;  and  that  the  Grant  is 
Ad  damnum  ol  the  City  cf  Kochelter,  and  of  the  Market  there  j  and  by 
Reafbn  thereof  tlie  Grant  is  void  i  Thcrelore  the  Sherid'of  Kent  is  com- 
manded to  warn  the  Defendant  &:c.  to  Ihevv  Caufe  why  the  Letters  Pa- 
tents ihould  not  be  cancelfd.  The  Defendant  demurr'd,    and  the  Attor- 
ney-General joined  in  Demurrer.    And  the  Lord  Chancellor  Finch,  af- 
lilled  by  North  Ch.  J.  and  Jones  J.  gave  Judgment,   that  the  Letters 
Patents  fhould  be  cancelfd  and   vacated:    Whereupon  the  Delendant 
brought  a  Writ  of  Error  in  the  Houfe  of  Lords  i  and  there  it  was  ob- 
jected, That  this  Scire  facias  doth  not  lie  to  repeal  Letters  Patents,   be- 
caufe  there  is  another  Remedy  at  Common  Law,  by  Aliife  of  Nufmce, 
cr  Quod  Pcrmittar,  where  the  Matter  may  be  tried  by  a  Jury.     But  the 
Judgment  was  affirm'd  ;  and  it  was  refolved  that  the  King  hath  a  Right 
to  repeal  a  Patent  by  Scire  facias,  in  which  he  was  deceived,  or  the  Sub- 
ject prejudiced.     3  Lev.  220.  Trin.  i  Jac.  2.  in  the  Houfeof  Lords,  The 
King  v.  Butler. 

22.  A  Grant  was  made  by  the  Crown,  for  the  letting  afide  whereof 
an  Englijh  Bill  was  brought,  and  it  was  argued,  that  it  was  .the  proper 
Remedy  in  this  Cale  ;  for  that  no  Scire  lacias  would  lie,  it  not  being 
a  Record  of  this  Court  i  and  if  it  would,  yet  it  would  not  reach  the 
Fraud  objefcled,  it  not  appearing  within  the  Body  of  the  Grant  ;  and 
that  in  this  Cafe  Equity  did  but  follow  the  Law,  and  that  it  was  not 
fitting  it  Ihould  he  lelt  in  the  Power  of  the  King's  Officers,  by  their 
Connivance  in  paffing  Grants,  to  put  the  King  without  Relief  in  a  Cafe  of 
Fraud  and  Surprize  ;  and  tho'  there  was  no  Precedent  of  fuch  Suit,  yet  all 
Precedents  had  a  Beginning,  and  that,  in  this  Cafe,  was  fuificienc 
Ground  lor  a  Decree,  there  being  all  thi  Badges  of  Fraud  and  Siirpriz? 
imaginable,  Sc.  In  the  paihng  the  Grant  there  was  no  Warrant  to  the  Au- 
ditor to  make  cut  the  Particulars  ;  nor  to  thfSurvejor,To  return  an  FJfnnate  ; 
nor  Billzvith  a  Dvcquet,  Jtgnd  by  the  Attorney^  nor  any  of  the  ufual  Me- 
t'lods  obferved,  but  only  a  Warrant  under  the  Sign  Manual  iox  paffing  the 
Grant  in  Queftion  to  the  Chancellor.^  and  countcrfignd  by  him  ;  which  is 
making  a  Warrant  to  himfelt^  a  Thing  ne\cr  before  heard  of  And 
tho'  a  Patent  may  pafs  by  immediate  Warrant  under  the  Privy  Seal  or 
Signet,  yet  this  is  in  Eilect  no  Warrant,  being  only  under  the  Sign 
Manual,  and  no  Seal,  either  Privy  or  Signet,  to  it.  That  this  Matter 
isas  difpatchtd  ivith  great  Hurry,  the  Warrant  being  lign'd  the  29th,  and 
the  Patent  palled  the  Dutchy  Seal  the  31ft  of  the  fame  Month,  tho'  it 
would  take  a  Week's  Time  to  ingrofs  it ;  and  that  here  the  Petition  Pro- 
pofal,  the  Chancellor's  Report,  and  Warrant  for  the  Grant,  are  all  of  the 
Writing  of  the  Grantee's  Servant ;  And  that  the  over-value  was  excefjive. 
And  for  thofe  Reafons  the  Patent  was  fet  afde  by  the  Chancellor,  alfilted 
by  Jones,  Ch.  ].  and  Montague,  Ch.  B.  See  Vern.  277  to  282.  Mich. 
1684.  And  370",  382,  to  392.  Hill.  i63j.  Attorney-General  v.  Ver- 
non, Brown  and  Boheme. 

(T.  b) 


120  Prerogative  of  the  Kina' 


(T.  b,)     What  iliall  be  good  Cauic  to  repeal    a   Patent 

upon  a  Scire  jncias. 

The  Eail  of  i.  T  jf  tljC  King  grants  a  Patent  by   Fraud   or  falfe   Susgedion,    bl> 

Kent  lucd       j^  ^j-jjjj  jj^  jg  accdvcd,  \)t  \\m  a^otD  it  upon  a  ^ciie  faciagf 

thcKing.L  3^l^'«^  i^l^Sl''*  ^^  ^'  3-  47>     CO,  ii:  Mag.  Colkge.  74,  D, 
that    E.  z 

pave  to  Us  Fnthir  60 1.  Rent  cut  cf  the  I'ill  cj  C.  in 'fail,  W\s  Father  died,  le  ilitlin  Jpe,  ard  the  A7;:^ 
feifett  by  Ward  the  Plaintiff,  v.ho  is  yet  -viitliii  Jpe,  and  the  hitig  by  his  Letters  Patci.ts  faze  to  tie  Lord 
J.  JJ.  171  Fee ;  and  hcCi.u'e  the  King  is  hourd  to  render  to  the  Heir  as  fully  as  it  came  to  him,  he  pray'd 
that  the  Patent  be  repealed,  and  the  Rent  leteiled  ;  upon  wiiich  the  Petition  was  indorsM,  that  the  Aich- 
bifl'.op  of  Canteibury  and  certain  others,  calling  to  them  the  Chancellor,  Ihoidd  do  that  vhich  is  fiiii* 
according  to  Lav,  and  Rea'bn  ;  upon  which  Scire  fadas  was  iffiied  to  avnrv  J.  .!/.  to  appear  in  tie 
Chancery,  to  fay  why  the  Patent  ^\-MV.ed.h\  jalfeSiigp,efiion  fhculd  not  be  repea!"d,and  the  Kent  rcleis'd; 
which  Suggctlion  v.as,  that  tie  Land  came  to  ihe  King  by  the  .Attainder  of  R-  F.  Whereupon  J.  iM.  came 
;ir.d  faid,  that  foraliuuch  as  this  Suit  is  to  defeat  Frank  Tenement,  and  to  rellore  it  to  another,  that  this 
fliall  be  at  the  ("en  mon  Law,  et  non  Allocatur,  bccaufe  it  is  to  repeal  Patent  of  the  King,  which  can- 
not be  but  only  in  Chancery.     Br.  Petition,    pi.  11.  cites  S.  C. Br.  Patents,  pi.  14.  cues  S.  C. . 

Br  Scire  tiacias.  pi.  104.  cites  S.  C. 

M.  was  fei'ed  of  an  Hpt:fe  Sec.  which  he  held  of  th-e  Bif>op  ofWrnchefler,  and  nvctild  convey  the  fame  to  tie 
Friars  Carmelites,  ittt  the  BijVop  'VLould  net  confent  ;  whercupoH  the  Frians  and  the  Tenant  agreed,  that  the 
Tenant  fjoHld  grant  it  to  the  Kinf,  and  he  to  the  Friars,  which  was  done  accordingly;  and  afterwards 
upon  Averment  of  this  Fraud  by  the  Bifhop,  the  Patent  was  repealed,  and  the  Bilhop  reftored  it  to  his 
teigniory.  cited  Roll  R.  i6!>.  in  the  Ca(e  of  Warren  v.  Smith  Per  Houghton,  Duderidi^e,  and 
Coke,  as  I'E.  5.   59.     Meriot's    Cafe. 

The  Queen  jrefented  where  Jhe  had  no  Right,  and  Quarc  Impedit  was  brought  againfl:  the  Incum- 
hent  .and  the  Bifhop,  and  adjudged  for  the  Plaintift.  The  Defendant  afterwards  perceiving  this,  biough;: 
Trefpafs  agaiilf  the  Plaintitf,  whereupon  the  laid  Plaintiff  (now  Defendant)  was  outlaw'd,  and  the.T 
the  (now)  Defendant  rejigti'd,  and  the  ^leen  prefentcd  him  again  ;  whereupon  lie  was  inducted  ;  and  after 
the  Plaintift  brought  a  Writ  of  Error  and  revers'd  the  Outlawry  ;  and  then  brought  Scire  facias  upon 
the  Judgment  in  the  Quare  Impedit  againfl  the  Defendant,  where  all  this  Fraud  appeared  to  the 
Court,  and  therefore  he  recover'd  the  Prefentation.  cited  by  Dcdcridge,  J.  as  Trin.  53  Elii.  Rot. 
139.  B.  Beverley  v.  Corbet. 

2.  Scire  facias  upon  Suggeji'wn^  that  'Tenant  in  Tall.,  the  Rcvcrfion  to 
the  Kifig^  had  piirchajed  Licence  to  alien  in  Fee,  and  retook  to  him  and  his 
Feme  in  Tail^  the  Remainder  to  his  right  Heirs  ;  and  Exception  was  taken, 
inafmuch  as  it  was  not  warranted  by  any  Record,  et  non  AJlocatur  i 
tor  it  fuffices  upon  Suggeltion.     Er.  Scire  tacias.  pi.  159.  cites  40  AfT. 

Br  Scire  fa-      3-  '"^^ire  facias  was  fued  to  reverfe  certain  Letters   Patants  made  by 

ci.:s.  pi.  225.  the   King,  who   was  intitled  by  Office  before  the  Elcheator,  that  J.  N. 

cites  S  H.  4.  committed  Treafon  -cohere  he  was  never  inditfed  ot"  the  Treafbn,  and  the  Te- 

2'-  nant    pray'd  in  Aid  of  the  King,  and  had  iti  and  .atter   Procedendo 

came,  and  he  faid  nothing ;  by  which  the  Court  bid   the  Plaintiff  fue 

Piojedendo  to  Judgment  j  tor  this  Title  is  not  lufficient  for  the  King, 

becaufe  the  Party  does  noclofe  the  Land  'till  he  be  attainted.     Kr.  Scire 

tacias.  pi.  66.  cites  8  H.  4.  21. 

^5  a  Patent        4.  Scire  lacias  was  fued  to  repeal   certain  Letters  Patents  of  a  Grant 

]ira.)Jarket,Q£.^  Fair,  Ita  quod  non  lit  PrsEJudicium  vicinis  fctiis  J  and  becauie  ic 

t^he'r'anc^ent   furmifed  to  be  Nttfanee  to  another  Market  or  Fair.,  therelbrc  Wxh   iliucd 

Market  was  &c.     Br.  Scire  facias,  pi.  71.  cites  11  H.  4.  5. 

v/ithin   a 

Mile  and  an  halfof  it,  which  was  much  damaged  by  ir,  was  decreed  by  Finch,  C.  and  ailifled  by  North, 
Ch.  J  and  Jones,  J.  upon  a  Scire  t.icias,  to  be  repeal'd,  ilo'  an  .-id  iiaod  Da'/inum  lad  ijfi<ed  ;  indwa^ 
return 'd,  that  it  was  tot  to  the  Damage  of  any.  2  Vent.  544.  Hill,  -i  &  ;2  Car.  2.  in  Cane.  Sir  Oliver 
Butler's  Cafe. — This  Decree  was  affirm'd  in  the  Houfe  of  Lords.   Trin.  i  Jac.  2.  5  Lev.  220.  the  King 

V  Sir  Oliver  Butler. cites  2  E.  5.   54.     Scire  facias  to  repeal  a  Patent  of  Toll.  And  1 7  E.  ;.  59.  b 

Of  Maikct  1 1  H.  4.  5.  Of  Market.  D.  1 9-,  198,  276.  And  they  laid,  there  never  wasanyCVic',"- 
tion,  Whether  the  Writ  lay,  but  only  of  the  Manner,  and  other  incident  Matters. 

_  .     ,  .  5.  Scire  facias  to   repeal  a  Grant  of  an  OiTice  of  Auditor  for  a  Fur- 

Scire  racias      ,    "^        ■  j       •  a  /-     l  i-r^-  1  1  j  i 

was  brought  J'^^tnre  in  not  pnxlticmg  an  Account  at  luthTuiie  as  he  ought  to  do  i  and 

to  repeal  tlie  being   rcturn'd  W'arn'd,    he  nisde  Default  i  where.ipon  Judgment  was 

aiven 


Prerogative  of  the  King.  1 2 1 


oiven  for  the  Forfeiture,  and   that  the  Letters  Patent  and    the   Inrol- pran:  of  the 
niont   thereof  be  unnull'd.      D.  197.    b.  pi.  46.    cites  Mich.    14  H.  8.  "'"^^  "^  ,^'"^ 

-' /  r       -T  T  Serjeant  tit 

i'oly  s  Laie,  ^^rw/,  for 

vot  atteiidiatr 
his  Off.ic,  r<)  that  the  King's  Bufincfs  rcmain'd  not  done,  In  Contcmptum  Rciji^  Stc.  And  upon  two 
Nihiis  rcturn'd  and  Delaalt,  Judgment  was  j;ivcn  accofdin;;!)',  and  that  the  Olfico  be  Iciicd  into  the 
King's  Hands  as  forfeited  Sic.     I).  19S.  a.  pi.  4S.  citesTnn.  26  H.  8.   Ellon's  Cafe. 

6.  Altho'  the  King,  as  to  his  natural  Pcrfon,  may  be  within  Age, 
yet  his  natural  Peribn  being  joined  with  his  politick,  they  are  one  indi- 
viiiblc  Body.  And  he  ihall  not  avoid  his  Grants  viadc  i^itbin  Agc^  nor 
his  Lcales  by  Nonage,  whether  he  be  fciied  in  Tail,  or  in  Right  ot"  the 
Dutchy  oi  Lancafler,  or  in  Right  of  his  Crown.  The  Lands  of  the 
Dutc!;V  of  Lancalter  are fever'd  from  the  Poliellions  ot  the  Crown,  as  to 
the  Manner  of  granting  them  ;  but  for  Age,  Aid,  and  fuch  perfonal  Re- 
lations, the  Duke  is  as  King;  but  tlie  King  may  avoid  his  Grants  by 
Darefs ;  as  in  Caie  of  Rebellion,  if  the  RebL-ls  having  the  King  in  Cul- 
tody  extort  Grants  from  him,  as  it  happened  in  the  Cafe  of  H.  3.  in  the 
Baron's  Warrs.     [enk.  265.  pi.  69.  cites  2  Eliz.     Plowd.  213. 

7.  In  a  Great  Vein  of  Lead^  Part  of  the  Earth  feli  upon  a  Alincr,  and 
kili'd  him  ;  Only  thai  Parcel,  and  not  the  whole  Vein,  was  forfeited  for 
a  Deodand.  The  Ka/g^  by  his  Letters  V.\tcni?,^  granted  the  [did  J^etn  to 
J.  S.  The  Lord  Chancellor  of  England^  on  the  Prayer  of  the  Owner  of 
the  faid  Vein,  called  in  the  faid  f.  S.  by  Scire  facias  in  the  King's  Name, 
and  bv  the  Prerogative  Law  catifed  the  faid  Letters  Patents  to  be  rcvok'd  •, 
h'Cdiife  xhny  wcxn  obtained  fnrreptitiotijly,  and  in  Deceit  of  the  King. 
Jenk.  64.  pi.  21. 


(U.  b.)    ^rho  jnay  fuc    the    Scire  facias. 

1*  T  if  In)  nu  Office  a  Tenure  is  found  of  the  King,  aUl!  tljilft  CI.  015* 

i  1.5  m  iBatn  to  t>jc  l^ina;.  nnti  tljeucupon  ttjc  Kmg  grants  the 

Wnrdiliip  Of  i^.^D.  Of  13001)  ilUtl  Latltl  ;    autl  ilfCCr  C.  D.  comes  and 
tras  eribs  the  OiHce,   ijC  fljilil  yatlC  il  ^CU'C  t"itCU)3  asaillfi  ^^  X%   tO 

icpCiii  {jTd  patent.   4!;).  6»  12, 

2.  3,f  tijC  l\tng  !T;rarit5  two  Icvcral  Parents  of  the  fime  Thing,  tIjC  ''^-  ^   .T="^; 
firit  Patentee  nWP  lUC  il  ©CttC  faCUTj  againil  the  lait  PatCnteC,>0  tC=  ^-f '  Yv''\ 

peal  tijc  lad  i?)atcnt.  37  D.  6.  14.  D.  3  €1. 197.  45.  Dilicr^y  Wi  ad.iT 
|prccel!£utj>  fijciuii  iiccotDmsIu^  that  if  the 

tii-li  P.itcntce 
be  onftcd,  lie  hns  his  Elcftion  to  bi-inr;  an  Affifc  or  .Scire  ficias,  if  the  Patents  are  for  Lands  or  for 
an  Orlice  for  Life.  3y  the  Juftice.';  of  both  Benches.  Judge  Jenkins  fays,  that  Rc;j;ularly  t'.ie 
Law  is.  Thru  the  Erft  Patentee  may  have  Scire  ficias  againft  the  fecond,  biit  the  fecond  Patentee  may 

have   it  againd    the   fifll. Wlierc   ti-jo   P.xter.ts   are   granted  u/'  one  and  the  fame  Thn:(r,  tho'  it 

be  hnni-n  hy  the  Karrc  nf  the  Manor  of  P.  and  cf  the  AJayiov  of  S.  yet  if  tlie  laft  oulis  the  firif,  Scire  fi- 
cias lies  to  repeal  the  Patent  ;  and   if  it   be  of  div.;rs  Thincjs,  Allife   lies,  and  not  Scire  facias      Rr. 

Scire  facias,   pi.  \;6.  cites  S  E  4.    6. Br.  Patents    pi.  67,.  cites  S  C. Scire  ficias  was  awarded 

for  a  firft  Patentee  to  repeal  Letters  Patents  of  a  fubleciiient  Patentc^e  to  be  Park-Keeper ;  and  upon  P. e  - 
turn  thereof,  and  a  I'adjjment  by  Nil  dicit,  the  Judgment  was  given  in  Ciiancery,  tiiat  the  Letters  P.i- 
tcnts  be  revoked.     Dyer  19-.  pi.  45.  cites  10  H.  8.    Hunt  v.  Coffin. 

3.  If  tijc  t\\\\^  c,Taiit^  ttoo  patcnt0  of  one  (luti  tijc  dime  ^Ijtng, 

the  fecond  Patentee  ihall  not  \)A\it  il  g)CirC  ft'lCiaS   againlt  the  tint  \BH 

tcntee  to  tepcnl  tIjc  flrfc  P(Ucnt.  D.  lo  €!.  277.  54.  tlBiicrc  it 
is  I'ni??,  tJjat  tiitd  ly  contrat))  to  tijc  l^oolis  auu  ptccccrnts  iinti  tije 
Common  Courfc.    39B.  6.  33,    contra. 

4.  Jf  ti}C  Binn:  tXrantS  a  Patent  of  Land,  or  of  an  OiHce,  !)f  lUHP 

Cue  a  sscirc  fscuivi  aganvu  t!}e  Datcjitec  ta  repeal  ttjc  \T-i\Xt\\t  upon 

H  h  ■  ,.:. 


122  Prerogative  of  the  Kiiiii 


^^aLiv^     w:l     tJiv    Av.xic,. 


an  exprds  Condition  broken,  or  for  a  Forfeiture  by  Force  of  a  Condi- 
tion in  L;ivv.     D»  3  (£L  i97«  47.    4(t;U2iu  29» 
Hill. ;  Jac.i.      5*  If  tl)e  prCBCCCfiOr  King  aliens  by  Charter  any  of  the  Poifcllions 
of  the  Dutchy  of  Cornwall,  tijC  eldelt  Son  of  the  Succelibr  King,  be- 
ing Duke  of  Cornwall,  HWP  lirtng  a  gTilX  ftlCta^  i"  the  Name  ot  the 

King  to  n^oit!  tDi0  patent  Co»  s.  xiljc -P>v«rt'0  Cnfe  u  ^onone 
nnti  aonnttco.  ^m  3  bit'cm,  jfol.  22,  ti.  23*  DiAjerfe  prccctscntg 
citcB  nccorainn;!)),  untijout  anj?  allegation  of  aiip  jFraun  ot  Dzmt 
tn  tfjc  obtanimij  of  it. 

Pr.  Scire  fa-      6*  6  C  4.  8.^V     €;(jC  firft  Patentee  Of  t^e  ©ffiCC  of  Clerk  of  the 
cus.  P'-i7^  Crown  fued  a  ^C\Xt  faCiaS,  in  the  Name  oi  the  kins,  to  repeal  a 

circs  6.  u    f^^^^^  p^^ent ;  bt!t  tijcrc  rcfoilietJ  ta  Cam.  S^cacc.  ^Ql  9.  b.  yp  tijc 
3iifitcc0,  tijnt  boti)  cuijijt  to  be  of  tlje  fime  Thing ;  for  if  tijc  \M-- 

tentSi  are  of  ie\  era!  Things,    ailU  tljC  hnl  patfiUCC  is  ouitcd   bv  the 

fecond  patCHtcc,  the  firii  patciitcc  fijaSI  iiot  ijaije  any  Eciiicuj)  bp 

^Cire  fiUla05  but  is  put  to  his  Aliife.     [Eaggoc's  Cafe.j" 
Br.  Traverfe      -y.  \V'here  the  King  is  intitkd  by  falj'c  Office,  and  grants  the  Land 
de  (_)ffice.  pi  Qyer,  he  K;/r)o /j  ^r/6'W.''/ may  traverfe  the  Office,  aad  have   Scire  facias 
6.  cites  S.  L.  j]-,gj.gupQn  againJt  the  Patentee.      Nota.  Br.  Scire  lacias.  pi.  69.  cites 

9  H.  4.  6. 

8.  Vv^here  a  Patent  is  granted  to  the  Prejudice  of  the  Subjeif^  the  King 
of  Right  is  to  permit  him  upon  his  Pttition  to  ufe  his  Name  lor  the  Re- 
peal of  it  in  Scire  facias  at  the  King's  Suit,  and  to  hinder  Multiplicity 
of  Aftions  upon  die  Cafe;  lor  fuch  A6lion  will  lie,  nctwichftanding 
fuch  void  Patent.  Per  Finch.  C.  2  Vent.  344.  Hill.  31  &:  32  C.tr.  2. 
in  Cane,     in  Sir  Oliver  Butler's  Cafe. 

9.  Scire  facias  out  oi  Chancery,  returnable  in  B.  R.  to  repeal  Let- 
ters Patents  of  \^^tKetiory  of  Algate^  it  was  held,  that  if  Letters  Pa- 
tents are  granted  to  the  prejudice  oj  any  SubjeB^  he  may  have  a  Scire  fa- 
ciasj  upon  the  Lirolment  of  them  in  Chancery,  to  have  them  repeal'd^as 
well  as  the  Qj-ieen  may.  As  if  a  Fi^/V  be  granted  to  the  Damage  of 
mine,  I  may  Sue  Scire  facias  to  repeal  Ibch  Grant.  Mod.  Calcs  229. 
Mich.  3  Anns.  B.  R.     Brevvller  v.  Weld. 


(X.  b, )  JJ%it  Thing  fliall  be   [or  amount  to]  a  Refealhig. 


'•r 


JT  tiJC  Ittnn;  brings  a  Scire  facias  affatUH  H  P.ltentCC  tO  VCpCal  Ijl'Si 

_  patent,  aUtI  the  Patenteeis  returned   warned,    and  makes  JJelault, 

and  thereupon  Judgmentig  {i;i\jen aitaUlft  1)1111,  bptljiS  tJJC  lettCl'Si  Pa^ 

tents  ate  amiuilet!,  matie  ijOiO,  ano  of  no  Cilefi:.  D.  3.  (£i.  19^*  50. 

Ward  of  the  2.  So  tljC  lAinS  gtaUtCQ  at  felieral  Cime^  two  fe-.  er.ii  Patents  of  one 
Land  and  and  the  lame  Thing  tO  feoCtal  PatClltCe^^  aU'O  tljC  firlt  Patentee 
Body  was  brought  a  Scire  ficias  againit  tljC  rCfOUB  Patilltee  tO  VCpCal  ijt.S  lS5a= 
A^BandC     tCUt,  lUljO  10  Returned    ^\^arned,    and  makes   Default,    upon   which 

D.  came  and  Judgment  iisijroen  agaut!!  btui.  fpiy  patent  %  bp  tJjiVs  aunulicQ, 

traverfed         XCMZ  '^^i^-,  \\X^  Of  HO  ^^ii^,   D.  3*  CJ.  198.  50,  37.  If),  6   14. 

the  Office  ; 

and  had  Scire  ag?mft  A.  B.  and  was  ivarmd  and  made  Default  ;  &  per  Cnriam,  by  this  Default 
his  Letters  Patcr.ts  of  the  Ward  art  loid  \  Brook  fays,  cu^re  it  the  fame  Law  be  upon  every  other 
Scire  facias  to  repeal  a  Patent,  and    fays  it   feems  clearly  that  it  is.  Br  Patents,  pi.    20.  cites  4.  H.  G. 

J  2. And  upon  this  another  Patent  was  rj-anted  of  th e  Land  by  the  Kirf^  to  C.  D.  until  if  per'!.'  le 

d.'ftupd  ietiieen  him  ,'nd  the  King  ir.  the  f.-.iierfc,  and  after  C  D.  tjas  r.:nfiiited;  and  perChenev  and  Hales 
Indices,  by  the  Nonfuit  this  is  a  DifiuPloji  of  the  7'raveyfe,  and  therefore  the  Second  Letters  Patents  arc 
void  alfo,  quod  nota  Br.  ibid.  S.  P.  And  this  Jud,7nievt  jhall  le  flcaded  agaiyifi  the  Patentee  in  any  Court. 
Kr.  Patents,  pi.  25.  cites  57.  H.  6.  14.' Br.Scire  facias,  pi.  i;S.  cites  S.  C 

3.  T'he  Ka/g  granted  to  A.  B.  thefe  Lib9rties,viz.  to  be  exenipt  from  Juries 
and  Inqnejis  &ic.  and  after  a.'I  Friinclijls  granted  bj  this  King   i'jere  Re^- 


Prerogative  of  the  King.  123 

fcakd  by  ACi  of  Parliament.    Q^iitere,  if  Liberties  are  Repealed   by  this 
Word  Franchifcs'  Br.  Repellunce  &c.  pi.  7.   cites  34.  If.  6.  25. 

4.  The  Chancel 'or  otEngland  demanded  of  all  thcjultices,  that  Where 
the  Inheritance  of  the  Crown  uf  Efigla'rid,  and  of  France^  with  ali  Pre-enii-^ 
iiences  and  Prerogatrjcs  •were  given  by  All  of  Parliament  to  H.  7.  and  to 
the  Heirs  of  his  Body,  Whether  the  Liberties  and  h'ranchifes  were  by  this 
refumed  ;  and  they  anlwered  that  it  was  ncr ;  the  Reafon  feems  to  be  in- 
afmuch  as  itjkall  be  intendtd  fiich  'Things  were  td  theCrown  at  this  Jtme^ 
and  not  thofe  which  other  Men  had  by  good  Title.  Br.  Repelknce  6cc. 
pi.  5.  cites  I  H.  7.  13. 

5.  34  &  35  H.  8.  21.  Provides  that  (notwithjtanding  thisAa)  the  King'' s 
Grants  of  (Jl/ices,  and  their  Fees  for  keeping  of  Cajlles,  Hotfes,  Parks, 
Chafes,  Fore/fs,  or  Elotk-Houfes,  jhall be  I'oid,  when  tkc  Caiife  of  exercifiiig 
fiich  Offices  is  determined. 


(X.  b.  2.)  Patentee.   Oujled  How. 

HERE  the  King  is  intitled  by  Office  to  a  Ward,  or  fuch  like^  and  Br.  Pctitio!>, 
grants  the  Lando\tx  by  Patent,  and  during  the  Nonage  one  conies  \"  f^'^fffff 


T 


and  travcrfes  the  Office,  or  makes  Petition,  and  this  Matter  is  found  J  or  htm. 
Scire  facias  ihdl  be  awarded  againit  the  Patentee,  to  fay  why  the  Party 
Ihould  not  have  Execution;  And  fo  lee  that  the  Patentee  lliall  not  be 
oiifted  without  being  warned  by  Scire  laci.is.  I]r.  Scire  facias,  pi.  156. 
cites  3^.  Air.  II. 

2.  If  the  King  caiife  his  Vale[f  to  be  admitted  to  a  Corody  in  an  j^bbcy,  cf 
which  he  is  not  Founder  in  Jure  Corona,  by  which  the  Abbot  fues  by  Pe-^ 
tition,  and  upon  the  Matter  dilcharges  the  Corody,  he  Ihall  have  Scire 
facias  ugainll  the  Valetl  to  remove  him,  though  the  Name  of  Valecl  be 
not  named  in  the  Petition  ;  Per  Juiticiariosi  But  in  a  Petition  of  Land  he 
jhall  not  have  Scire  facias  again  f  the  I'ertenant  for  lerm  of  Life  of  the  Leafe 
of  the  King  &c.  unlefs  he  be  named  in  the  Petition  ;  For  it  ought  to  appear 
in  the  Petitiontn  whomtheFranktcnement  is  •  quod  nota,  the  Dittercnce ;  For 
there  the  Land  is  demanded;  But  in  the  other  Cafe  the  Corodv  is  not 
in  Demand,  but  it  is  to  difcharge  the  Corody.  Br.  Scire  facias,  pi.  169. 
cites  5E.  4.  122. 


(X.  h.  3.)  Patents  Repealed  Pkiidiags. 

1.      AN  Office  found,    ifhat  M.  the  'Tenant  of  the  King  died  feifd,    /vj  Br.  Ti-.u-ci-'e 
_/~\  Heir  within  ^igc,  and  the  King  granted  the  Ward  to  W.    and  the  de  Office,  pi. 
Fecffi'ecs  traverfcd  the  Office,  that  the  Tenant  infeoffied  them,  Abfquc  hoc,  that  ^ff^^'^f  '' 
he  diedfeifed,  and  had  Scire  facias  againit  tiie  Grantee  to  repeal  the  Pa-    '  '' 
tent,  who  came  and  laid.  That  another  Office  is  found  that  the  Feoffment 
was  by  Colluffon  to  toll  the  King  of  the  Ward,  and  demanded  Judgnienr,  if 
he  Ihould   be  anfwered  to  the  Scire  facias  this  Ollice  not  being  tra\  cried, 
&  non  allocatur,  becaufe  it  was  found  pending  the  Writs  But  yet  the 
Defendant  was  luilered   to  plead  the  fame  Matter  to  fave  his  Patent ; 
and  'io  he  did,    .;ind  faid,  That  the   Feoiiment  was  by  Coliufjon  &c. 
and  thereupon  were  at  Iffue.  Br.  Scire  lacias,  pi.  79.  cites  11  H.  4.  80. 

2.  \\'here  xh.<^King  has  a  Manor  in  Ward,  which  is  known  by  the  Name 
of  the  Manor  of  B.  and  of  the  Manor  of  S.   if  he  grants  the  Cuftcdy  of  the  k,-.  Scire  fii- 
Manor  of  B.  to  one,  and  after  grants  the  Cufiody  of  the  Manor  of  S.  to  an-  cias  pi.  176. 

ether.,  circs  S.  C. 


1 2 A.  Prerogative  of  the  King. 


olhir,  and  he  culls  the  iirft  Grantee,  and  he  biirgs  JJciie  latius  to  repeal 
the  Patent,  he  ouc^ht  to  fimuifc^  'That  the  Muncr  of  S.  and  B.  arc  ail  eve 
^'c.  fo  that  it  may  appear,  that  the  Patents  are  of  one  and  the  iame 
Thiny; ;  For  it' they  are  of  divers  Things  yijfife  lits^  and  }iot  Scire  facias. 
Br.  Patents,  pi.  63.  cites  H.  E.  4.  6.  per  Ajarkham  and  Choke. 

3.  A\here  Scire  lacias  iilues  at  the  Suit  ot  the  King,  the  Caiife  of  the 
Forfeiture  of  the  Thing  is  touched su  the  Urit^  But  otherwife  in  other  Scire 
iAcidn's  i'ucd  l>j  one  Patentee  againji  another.  D.  198.  b.  pi.  50.  And  vide 
ibid  197.  pi.  45. 


(Y.  b.)  iHoat  fliall  be  [faid  to  be  a]Grm/t  aga'tujl  the  Lav). 

I*  Tif  tljC  HinO;  grants  to  nnOtllCr  that  hcflull  not  be  punilhed  for  anv 
Felony  which  he  lliaJl  do  in  the  Time  to  come,  tljlS  t0  llOlD  i  tlC= 

caufe  it  15  dm^'^^  commnn  Etgljt  anB  Jimtcc*  19 13»  6. 62*  ii. 

.V,  ifti,cKi>.g    2»  So  It  IS  if  i)c  grant  tljat  ijc  Ojail  not  lie  punifticti  lor  any  'ivefpaft 

ThTr'jSi!^.  iUl)ICl) iJC Ujali BO  IjcrCuftCC*  19.  IX  6,  62,  lu 

t'l-l  haieJciion  aga'wfl  him,  tuherehe  is  iiideLied  to  me,  this  Grant  is  not  good;  per  Cott.  Juftice.  Br.  Patents, 
pi.  15  cites  cites  8  H.  (J.  19. 

Grant  by  the  King,  that  a  M.ui  jljnU  vj  be  impleadedh  void.  Br.  Jurifdidion.  pi.  59.  cites  S  H.  6.  i8. 
S.P.   Br.  Patents,  pi.  15.  cites  8  H,  6.  19. 

S^  P^  Nov  in      c;,  -^TIlC  1^1110  CaUltOt  gtaut  to  mi))  to  hold  a  Court  of  Equity  •  QoC- 

Andrews     fsiift  tijijs  10  III  DctogatiOii  of  tljc  common  laty,  Dob^ia*  87,88. 

V.  Webb.      I'CtlUCCn  Martin  an5  Mdrjhall.     jOOt  to  the  Queen. 

4.  Trefpafs  ot  Goods  carried  away  againlt  T.  C.  who  pleaded  to  the 
Br.  jurif-  Jurifdiction,  becaufe  he  is  Chancellor  ot  Oxon,  and  H.  4.  granted  to  J.  K. 
dittion,  pi.  Chancellor  of  Oxon.  and  his  Succetfors,  that  they  poidd  not  he  impleaded  by 
39. cues  S.C.  ^-^,-^  ^i'  y;.^y^^y}^  f,f)y  Contra ff  for  Things  done  by  their  Office y    and  lliewed 

that  he  difiraincd  by  his  Office  for  not  making  oj  a  Paven/cnt ;  and  the  Opi- 
nion of  the  Court  was,  that  the  Grant  is  not  good  ;  For  it  is  contrary  to 
Law  and  JiiJ^ice,  that  a  Man  Ihall  not  be  impleaded  in  any  Place.  Br.  Pa- 
tents, pi.  15.  cites  8  H.  6.  19. 

5.  Jnd  alfo  the  faid  T.  C.  came,  and  faid  that  he  is  Chancellor  of 
Oxon.  and  that  King  R.  £.  had  granted  to  J.  K.  Chancellor,  and  his  Suc- 
ceiibrs,  that  they  ihould  have  Connfance  of  all  Pleas  moved  in  Curia  Regis, 
-xhcreol  the  one  Party  iscas  Clerk  of  theVnii-erJity^  and  abiding  there,  and  laid 
that  he  is  Clerk,  Icilicet  Doctor  oi  Divinity,  and  abiding  there,  and 
prayed  the  Conufance ;  and  by  the  Opinion  of  the  Court  he  ihall  not  have 
it,  becaufe  he  is  Party,  and  cannot  be  indifferent  in  his  own  Cafe.  And  per 
Alartin  and  others,  the  Grant  is  not  good,  unlefs  it  were  licet  idem  Can- 
cellarius fuerit  Pars,  and  if  it  had  thofe  VVords,  yet  it  is  not  a  good 
Grant,  unlefs  the  Grant  be  alfo,  that  then  he  may  make  a  Depntv  or  con- 
flitiite  another  Man  to  be  Judge;  For  he  himfelf  cannot  be  fudge  and 
Party  by  thefe  Words  (licet  fuerit  pars)  and  the  other  julhces'in  th<; 
f<ime  Opinion.  Br.  Patents,  pi.  15.  cites  8  H.  6.  19. 

6.  A  Man  has  Liberty  to  I'ue  where  he  will,  but  the  King  may  pro- 
hibit him  of  it;  As  if  he  grants  to  J.  S.  that  of  all  TrcfpaJ/i-s  dune' in  his 
Manors  the  Pleafballbe  before  him  ■■>  Per  Babingcon  Ch.  J,     Ibid. 

Brook  ftys,  ^  '\\\\&re.  "Rape  is  jnade  Felony  by  Statute,  it  is  not  inquiruble  as  Feic- 
And/c  ice  ^^  unlcfs  betbre  Juftices  who  can  hear  and  determine  Felony  ;  the  King 
Km'' c.iKixt  cannnt  make  it  inqitirable  in  Lect  by  his  Grant,  nor  grant  the  Leet  to  be  c^' 
fllter'xLjiv  ether  Nature  than  at  Common  Lau!.  Br.  Patents,  pi.  53.  cites  6  H.  7.  4. 
h  ^'J  0>;jnt,  by  the  jullices. 

and  yet  he         •'  ■' 

may  grant  Cwiufance  of  PIcis,  but  «/ 1;  alter  tie  Nafare  of  tie  FJci  ra  the  Nature  of  «  Court.     Ibid. 

8.  It 


Prerogative  of  the  King.  125 

8.  Ic  fcemed  to  fome,  that  by  Comuion  Laiv  the  King  might  prohibit  the 
iii/portiiig  Gooi/s,  and  that  tot  doing  contrary  to  fuch  Prohibition  the  Ship 
fhoiild  be  forfeited  i  But  this  Law  is  altered  by  fevcral  Statutes^  \  iz.  ii  R.z. 
II.  25  E.  3.  2.  ^'^c.  But  Qj.iiere  if  the  King  makes  fuch  Grant  with  fpe- 
euil NoiuOhftante  ol' thole  Statutes.  Sid.  441.  Hill.  21  &  22  Car.  2.  B.  R. 
in  Cale  ot  Home  v.  Ivy. 

9.  The  King  by  his'  Patent  cannot   grant  that  a  SnhjeB's  Goodspall  be  f^^'^'^^^-  '^^ 
Jur/erted  by  his  doing  a  Thing  which  his  Patent  prohibits.     Sid.  441.  tk"ai^Y 
Aiich.  21  &  22  Car.  2.  B.  R.  Home  v.  Ivy.  ]\lidi.  21 

Cur.  2.  S.  C. 


(Z.  b)   Grant    of  the   Ring    limhcd.     [Bj  Reference  ^^fx  b)-!l\r 

-J  to(Ec)and 

CR.c) 

i.TJf  t\)Z  Hinn;  grants  the  Manor  ot  D.  tO  3^*  ©•  ailtl  Ijl'g  rpCftiS,  and  jcnk.  525. 
within   v.ie   lame  Manor  to  have  Waits,   Scrayes,   Bona  &  CataJla  pi  4o- ^ — - 
Felonum  &c.  dicto  iVianerio  Ipectant.  &  pertment      ClJOfC  UBOrHei,  i^ic-  ^,^;  '="'^'^  ^ 
to  Manerio   fpedant.  $  pCttliieilt*  OO  llOt  tCfCr  tO  tfjC  vDUUOgi  Of  JFtiOlllSi      °     ^°'' 

Ot  otljct  jftvindjifcsi  wtjiii)  He  in  J^omt  of  Cljattcr  usijicij  tauuot  be  bp 
aupiUuffc  ot'Cuiie  appniDant  ot  apputtenant  to  a  ij^anoti  "Bite 
tijcv  fljaii  pats  UD  ttjtsi  orant,  tljo'  tljtp  luctc  not  c^ti  Qcinuca  ot  ufeD 
luiti)  tljc  £!>;anot*    Co»  9»  "vb>  s>tta.  il9at»  27*  b»  pet  cutianu        c^^b  -^  - 

2.  Jc  a   Portion  ot  Tithes  m  Lougham  appertaining  to  the  Rectory  Mich  ?-£. 
of  ©tcrcnljall  UlljiClj  UiaS  ailCCtOtJ)  i^tCrcntatlUC,  and  all  che  other  H/..  sic.  by 
Tithes  were  Parcel  ot   the   Rectory  ot   ILOllAtjaUl,  lUijlCi)  lUilQ  apptO=  |^-*'"'= ''^' 

ptiatco to tl)e  abbp  ofD»  luijici)  came  totijc  UmfibytDc  Did'oUp J;;^;!,;';;; 

tlOllOftljC  lilUbp,  ailDtije  King  grants  *  tocaniillam  Pornonem  Decima-  r^v^O"^ 
ruin  &  Garbarum  luaruni   in  Lougham  in  Com.  Norfolk,  cum  omnibus  *lu>l  19;. 
aliis  Dccimis  fuis  quibulcunquc  ia  Lougham   in  dicto  Com.  Norf  tunc  ^-^^'V~\^ 
vel  nuper  in  Occupatinne  johannis  Corbet,  \ul)CtC  III  CtUtlj    John  Cor- 
bet ne\er   had  any   CltljC0  lit   LOUatiain  III  1)13  SDCClipatlOJU     CljtS 

<Stant  IS)  uttetip  ijoiD ;  lot  tijc  !ait  iiaottijs  in  tije  fii)cciipatioit  of 
lolju  Cotbrttcict  to  ail  tije  Sentence,  as  uicU  to  tijc  firft  n9ocC0  as 
to  tJjc  fccoiiB  i©otii0,  atio  ijctc  a  li)ottioii  of  Cttijcs  in  gtofs  tuas 
mtcniicri  to  be  paiTcn  aiiB  not  ail  tbc  Ecctotj',  aiiD  ijcte  all  ougijt  to 
paf0  ot  not!jtnt5»   Co,  4,  Bozonn  34.  b,  teroi'ucti. 

34.  Jf  twi)  Rectories  appropriate  in  one  Church  in  one  Parilh  COUtC^  (L  b)pl.tfj 

Iv;  3 1 }),  s»  to  ti)C  IKm  bp  tijC  DilToUition  of  a  Dafpita!  to  tuljicij  it  '^Z^-  io-44^- 

m\i  apptCptiatetJ,  ailQ  tl)C  Ring  grants  this  by  the  Name  ot  a  Rectory,  p'™4/°s"^- 

but  bclorc  this  Grant  in  the  fuTie  Patent  tljCfC  is  a   general  Grant  of  all 

the  Lands  and  Hereditaments  v.hich   ever    belonged   to    the  Hofpical, 

and  the  Holpital  itfelf,  and  after  the  Grant  of  the  Rectory  tIjCtC  is  alio 

a  general  Grant  of  all  LaUtlSi,  Tithes,  and  Hereditaments  in  the  Vill, 

where  thofe  Reclories  lie,  at  any  time  to  the  laid  Hoipital  [bClCniXUilJ.] 

€:i)o'  ti)c  ^tant  be  13015  m  tlje  (Staut  of  tbc  Hcftori),  it  being  two 
Eectotic0,  j)cttijegcnctaii©QttJisfijanpar5!t.  n^icb,  ijCat,  ^^♦K, 
pet  Ciittam,  tefol^jeD  upon  euiGencc  upon  Ctial  at  l^at,  uiljiclj 
concctns  a3t*  strouj^hton  fot  t!)c  Ecftotp  of  Q3outton  in  Ccnu  i©at= 
unci?,  uiJjici)  came  toHuiij  l).  8.  bp  31  ip»  «♦  bp  tijc  DilTolutton  of 
tije  Dcfpital  of  ©t.  Joljtvs  in  i©atiutck  to  luijici)  it  mas  apptoptu 
nteti. 

4.  Ed.  6.  being  feifed  of  the  Rc£lory  of  D.  in  Hampfliire,  granted 
it  to  B.  bv  thefe  Words,  'I'otam  illam  Rctioriaid  de  Dale,  ac  omnes  Deci- 
liias  &c.  ^Ui£  qtiidcm  omnia  Sji'igiilaPranujJa  modo  estetidmitar  ad  verum 
valorem  de  32 /./)«:)■  ^;/«,7W.  At  the  Time  ichen  this  Grant  -ivas  luade^ 
there  li-as  a  farm  in  the  Parilli,  ivhich,  ivitk  the  Tithes  thereotj  zvas  in 

I  i  Lia  e 


1 26  Prerogative  of  the  Kiiig. 


Zeafe  made  by  the  Jbbct  Ann')  idH.  8.  rcfcroiiig  Rait,  "djhivh  coat  in  •'.cd  till 
the'id  F.liz.  And  the  Quellion  was,  W  hechciche  Lrrantce  oi  :he  Recto- 
ry, after  the  Expiration  of  the  Leale,  Ihould  have  the  Tithes  ot  this 
Kurm  '>  And  adjudged,  That  he  ihould  ;  For  tho'  the  ^V'o^ds  (Quse 
quidem  omnia)  in  ilic  Grant  refer  to  the  Value  of  the  other  Tithes  and 
not  to  thofe  of  the  Farm,  (becaufe  they  were  then  fuipended  by  being 
in  Leale  with  the  Farm),  and  probably  the  King  intended  to  grant  no 
more  than  Tithes  of  that  Value  exprcfled  in  tiie  Grant  i  yet  by  the 
General  Words  of  T'otam  Rci/oriam,  the  T'lthes  of  this  Fui-ai  will  pafs  ^  but 
otherwile,  if  there  had  been  any  fpecial  Words.  2  Roll.  Rep.  118. 
Mich.  17  Jac.   h.  R.  Dixon's  Ca(e. 


?« ;  I  b^- 

L^-'Jzfj^A.  c)   What  Things   Ihall    pafs  by   Generjl  JVords    \<>f 
^c\^'Q~z)''  R^'fa-aicc  to  former  GrmitsT^ 

Gawdv  and  i.^^iyQ  "^tm  niio  Cljaptct  of  p.  terre  fdrcn  of  Dl^erfc  Q^anors 
Pophum  X   III  (ictter  \\\  if ce,  mtt»  \\\  tfjc  i  e .  4*  tijc  IKrn^  fjrnnteD  to  tijcm 

IheChu'r  anH  tijeiC  ^UCCdIOr0,  tJjat  tf)CPlhouId  be  dlfcharged  of  all  Purveyors 
beint;  gene-  <^1  the  King  in  their  Manors  inElfex,  flUO  flfifCt  UP  27  H.  8.  cap  4.  It 
lai.ofall  U)i1|S  enafted,  that  the  Purveyors  of  the  King  might  purvey  (it  all  fOC 
Libeitics  ti)C  li5r0Viifi0lt  Of  ttlC  tXinn;,  as  well  within  Liberties  as  without,  nut- 
ar.dPnvilc-  uithttanding  any  Grant  to  the  contrary,  aitD  aftCt  tit  35  £>♦  8.  tije 
tf  K-  interl'l  ^""'in  ant  Cljapta*  furrendered  thofe  Manors  to  the  King  !){£|  Jpciro  ailO 
ed  of  fuch  g)UCCCiror0.  anti  alterwards  the  King  granted  thoie  Manors  tO  tfjCSMfCf^ 
Liberties      tui  :jf  tijC  LOCO  DaVC?  with   tot  tales  lantas  &  hujufmodi    Libertates^ 

*  ^'  ''^"i^-  astijE  Dean  anti  Cfjaptcc  or  aup  of  ttjcii-  preaccctfor^  habuerunt  ,aii- 
fhe  De\n  q'^"  Statuto  Non  obitantc.  Jit  t!)is  Cafc,  lu  aig  mufO  a0  tlje  ancient 
and  Chapter  L!l<citicd  Uicrc  cttiiict  bp  tljc  s^tatutc,  cl)i0  c5rnei*ai  ©rant  fijall  not 
had  and  fixatc  BE  JSo^o  tfjc  fsiD  liuettics  luljii!)  tlje  Dean  ana  (Elwpter  ijaD 
f^'^hVa  i-^i^toi^^*  Cr.  38€1>1%  E.  aOHiDgct!.  3.^!Ue,  tOat  Dp  rDe^ucrcnaec 
ry  Statute "  to  tljc  t^uiff  tljcp  uicrc  ettuict  if  tijcp  \m  not  been  cctuift  beftire* 

But  this  Li- 
berty to  be  difchai-ged  of  Purveyance  was  refumed  by  the  Statute  27H.  S.  wherefore  it  fliall  not  be  revived 
by  Gercral  V^  orris,  but  by  a  fpecial  Grant  of  thole  Liberties  by  exprefs  Kams  with  an  exprefs  Non  Ob- 
ftante  of  that  Statute,  fo  tliat  it  mirrht  apre.n-   that    the  King  intended  to  grant  them  notwithllanding 
that  Statute.  Cro.  E.  512  Lord  Darcy's  Cale.  iJ.  C. 

s.  c  cited  as    2.  ^)z  13103013  Of  CoDentrp,  among  otter  Libertiess,  had  a  Liber- 

agreedinthe  ^y  ^^  Catallis  Felonum  iuttljin  t)I0  ^anot  Of  15.  Sn'O  tlttCt  tt}iS  ^3= 

abom  lo'L  «ot^  came  to  1^.  s.  bp  attainder,  anu  IjegrantcD  it  o\ier  tint!)  ot  tales 

liz..  Cro.  E.    tantas  &  quales  Libertates  as  tfjC  'BUIJSJp  OT  1)10  |5rcOeCCfror0  fjaJl.  CljC 

515  in  the    <SranteenjaH  not  balie  bp  tijifi  ^Srant  tlje  iaiD  liberties^  ^WA)  x\)z 

Lord  Dar-     Q^jfljop  (jflQ^     f^i  luljfU  tijCP  ate  once  extina.  Words  ot  Reviver  UJiil 

^  '^'''  not  H  fufficient,  but  tbere  oiigOt  to  be  Words  of  Grant,  ana  fuel) 
penerai  (grant  iuilt  not  be  fnfficicnt  25  e^i.  m  grace*  Lor5  Page's 
Cafe,  per  Curiam,  citcopcr  Cohc  38  cgu  03*  E*  Citicix. 

3.  Where  the  Yill  ot  L.  claims  Liberties  by  Grant  of  the  King,  by 
thefe  Woids  fmh  Liberties  and  Franchifes  os  the  Vill  of  N.  has  &c.  they 
ought  to  i}riew  Record  or  Prefcripticn  proving  -vchat  Liberties  and  Franchifes 
A^.  has^  and  then  it  is  well  as  it  feems  there.  Br.  Patents,  pi.  31.  cites  20 
E.  3.  and  Fitzh.Avowry  129. 
s.  C  cited  4.  If  Garter  dies,  and  the  King  grants  the  Office  ivitb  fuch  like  Fees 
^-'^'  fR  '"  ^  Wages  as  Garter  had,  this  is  a  good  Grant,  per  Choke^  which  was 
"''^'^^  Po.  affirmed,  that  is  to  fay,  to  have  fuch  Fees  as  Garter  hatjl.  Br.  Patents, 
pi.  60.  cites  s  E  4-  8- 


luger  V, 
goiVa. 


5.  In 


Prerogative  of  the  King.  127 


5.  In  Trcfpafs  &c.  the  Defendant  juftified,  for  that  Northampton  is 
an  ancient  Town,  and  that  King  H.  7.  granted  to  the  Mayor  and  Bur- 
gclies  a  Fair  to  be  held  yearly  upon  the  Feall  Szc.  Cum  oninibus  Liber- 
tatibus&c.  tothefaid  Fair  belonging  ^  Then  he  fet  forth,  that  \V.  R. 
at  a  Fair  there  holden;,  Ibid  a  Cow  to  the  Plaintiff,  for  n  hich  the  De- 
fendant demanded  one  Penny  for  Toll  ;  and  bccaulc  the  Defendant  re- 
fufed  to  pay  it,  he  as  Bailiff  diltrained  the  Cow ^  Upon  a  Demurrer  to 
this  Plea,  it  was  adjudged.  That  by  the  Grant  oi  a  Fair,  Cum  omni- 
bus Libertatibus,  Toll  was  not  due  nor  demandable,  becanfe  it  is  net 
incident  to  a  P'aiti  It  is  true,  that  fuch  Liberties  which  a  common  Per- 
fon  hath  either  by  Grant  or  Prefcription,  and  which  the  King  himielf 
riiould  have  throughout  England,  as  Wa/f,  EJira]\  Wreck  &c.  There 
if  a  common  Perlbn  hath  them  by  Grant  or  Preicripcion,  and  they  come 
to  the  King  by  Forfeiture  or  otherwile  they  are  extinguifhed  in  the 
Crown,  and  the  Queen  Ihall  have  fuch  Liberties  by  her  Prerogative^ 
and  they  cannot  afterwards  be  granted  but  by  a  new  Cre:ition.  But 
where  a  common  Perlbn  hath  Liberties,  which  the  King  would  not  have 
by  his  Prerogative,  if  fuch  common  Perfon  had  them  not,  as  Warn?j, 
Park,  Fair,  AJarket  ivitb  I'cll &ic.  if  thefe  come  to  the  Crown,  thev  are 
not  extinguiiiied,  but  remain  in  Efle  i  For  if  the  King  fliould  not  ha\e 
them  by  this  Means  they  would  be  loll.  Whereibre,  abfente  Clench,  it 
was  adjudged  ior  the  Plaintiff.  Cro.  E.  558.  591.  Mich.  39&40  Eliz. 
B.  R.  Heddy  v.  Wheelhoufe. 

6.  The  King  was  Lord  Paramount,  the  Jhbct  of  \\'eftminfter  was 
tnefne,  and  C.  "uoas  'tenant  of  the  Manor  of  K.  The  tenant  -was  attainted 
of  treafon,  and  alter  Ojjicefoand^  the  King  granted  the  Manor  to  Sir  J.  M. 
and  his  Heirs,  to  hold  de  nobis  y  Succellonbus  noitris,  and  other  chief 
Lords  of  the  Fee,  per  Ser-vitia  inde  delitaSlc.  It  was  inlilted.  That  the 
Tenure  iLould  be  ot  the  King,  becaufe  the  Mefnalty  being  extinct  by  the 
Attainder  of  the  Tenant,  (tor  where  there  is  no  Tenant  there  can  be  no 
Mefne)  there  could  not  be  any  Services  due  to  him ;  But  adjudged.  That 
the  \V  ords  are  fufficient  to  create  a  Tenure  in  the  Mefne  as  it  was  before 
the  Treafon  i  For  fuch  was  the  King's  Intention  j  and  it  is  confonant  to 
Equity,  that  he  who  never  offended  Ihould  not  lofe  his  Services,  and 
theretore  the  Grant  Ihall  be  taken  beneficially  for  the  flonour  of  the 
King  and  the  Relief  of  the  Mefne,  and  the  Word  Tenendum  cannot  have 
any  other  rcafonable  Conftru£tion.  6  Rep.  5.  b.  Hill.  40  Eliz.  in  the 
Exchequer,  Sir  John  Molyn's  Caie. 


Ssc(l.  bj- 

(K  bT 

(L.b)- 


(B.  c)  Grants  of  the  King.     [To  zchit  the  irords  J]jall^cy-[Q-t)' 

exfcml.]  cTc)"""^" 

i.TiTtljeEUtn;  grants  to  mtOtljCr  AIIIfTues,  Forfeitures,  Fines,  and  Br  P.itent,s 
^  Amercements  of  his  Tenants,  anO  3  CCHiint,  UJljO  l)0!t!5S  Of  tijC  ^''^.^if^ 

(Sraiitce  and  of  another,  *  fae  nmctcctJ,  tljc  vSrantcc  fljall  not  Ijaijettji^  r<^\./-i 
ama'ccnieiit,  ijccaufe  Ijcisi  not  his  foie  Tenant.   22  ufl;  49.  pec  *foi.  i<;4. 

Grants  146.  cites  a  R.  ■5.4.  But  he  fliall  have  Fines  and   Amerciaments  of  thofc  who  held  of  Him  Or.ly. 

But  Br.  Put-nts,  pi.  90.  cites  2  R.  •;.  4-  Contra,  tb«  hertiall  have  it  of  thofe  who  hold  jointly 

of  him  and  of  others,  as  it  was  faid.  But  Brooke  makes  a  Quare. Where  the  King;  grants   F-.hss 

ar.d  Annrnnmeriti  to  J.  N.  in  his  Manor  of  D.  and  he  does  trefpnfs,  there  he  fliall  not  have  Fines  and 

Amerciaments  depending  upn  it.  Br.  Grants,  pi.  51.  cites  ii  E.  5.   ;,  4 -The  King's  Grant  to 

A.  of  all  Fives  iv:cl.  Jnierccments  to  the  TethWts  cf  A.  does  not  pafs  Fines  and   Jmerrements  inipofed  in   the 
King's  Bcmh,  Cvuniion  Picas,  or  l^deyier,  nor  before  Jurtices  of  Gad  Delivery,  Juftices  of  tie  Peace, 


128  Prerogative  of  the  King-. 

er  Dcrkof  r/'c  AJarket,  iifoii.uiyoftle  kwp^'i  Officers  •v.Jo  , ire  ^evahts  to  J.  Vor  tliefc  Fines  are  Roy.il- 
t  e  ,  and  ou^ht  to  have  Ipecial  V\'onls  to  paf'sthcm.  Jenk.  105.  pi.   ico.  cites  D.  ;68.     2  H.  ;.  7.    zz 

Jk^iW  ^(), So  'uhre    tliere  are  Tenants  ot  A.  and  ti  Fitie  vr  jmercemevt  is  .■'jpjfed  upon  ens  ilI:o  is 

^'enj-.rithoth  ofthe  A'»;»  ^nc/ ,i'.  tiri>  Fine  Scc.  does  not  pais  without  fpecial  IVords  lo  grsmx  tlic  Fines  and 
Ameiccnicms  hiic^re  ^Jenaitiuni  &=  Notiintegre  'tenentinm.  Jura  Regis  fpecialia  non  conceduntur  perGe- 
neralia  Verba.  Jciik.  105.  pi.  ico. 

2,  If  tlje  I^inn:  grants  nil  his  Lands  and  Hcrediramcnts  of  fuch  a 
Priory  in  luch  a  City,  a  Mill  whereot  the  King  is  leilcd  with  other 
Lands  Parcel  ot  the  Priory  Ihall  pafs  tl))  tljOfC  iXCItCral  l©0r5S»,  tljO'  il 

v^Ui  ougijt  to  'oe  ticmaiiDetJ  in  a  J©nt  i^  ipccial  JSamc*   ix  37  €U 
''}5*  E.  per  (Lurtanu 

D-55o_b-pl-  3»  So  if  tljC  l^mo;  Brantid  all  his  Lands,  Tenements  and  Hcredita- 
%'■. ,f^' p'p  mencs  in  D.  the  Advowlon  oi  the  Vicarage  Ihall  pafs  bp  It   iL)»  37  (^1,- 

nf  the  Rcc    :b.  E.  in  tljc  raio  Cafe  Ijclti* 

tory  of  VN'cft 

Bodwin. Geidl  252.  S.  C. S.  C.  cited  10  Rep.  ^5.  b.    in   V\'hiftler's  Cafe In  Quarc  Im- 

pedit,  where  tlie  Ain^,feifed  of  a  Ma>:or  i^tth  .^d-vcu'/on  ^^ppendanf,  gra>,ts  the  M^n^r  Kithoui  jpeakin^  of 
the  ,:/Jto«/ow,  the  Advowlon  does  not  pafs;  hut  where  it  is  appendant,  and  the  King  grants  the  ALiror, 
Habend.  una  cum  the  Jdvoii-fon,  this  patleswell;  for  it  is  appendant.     Br.  Patents,  pi.  29.  cites  ;8  H  0. 

;4.  ;5. --Centra,  if  it  was  Advowion  in  grofs;  for  there  the  Grant  is  void  as  rcf  the  Advowlon,   un- 

kis  it  be  exprrfs'd as  •u:ell  hi  the  Grant  as  in  the  Habe7iiiim.  Br.  Patents,  pi.  29.  cites  50  H.  6.  34..  5  5. 

Dav.  Rep       4,  ii),  2,  gvantcU  to  tijc  X^urgefff js  of  Dtitlin  Qj^od  fmt  quieti  de 

^  V     B  R    Theolonio  l^alTagC  pOntaW,  >i^   onmi  Confuetudine  per  totani  Ter- 

s  cm  tilt  J"'""  noftram  CiugU*,  Jl^ornrani^,  t^ailiae  $  I^ibcrni^,  vbicunque  vcne- 

t.ne  of       rint  ipli  &  res  eorum.     'C!)0'  tijC  CltI?Cn0  IjaUC  bCCn  nlt«ai>S  finCC  tlllS 

"^"f  pi"f    <ou\\x  till  tijid  Dap  e.concratco  of  tije  C^rcat  Cuftom  luijicij  i.s  callcD 

Andit  v.as     j\i^g-i-,;^  Antiqua  Cuituma  in  Anglia,  &  Magna  Nova  Cultuina  in  Hiber- 

bv°the  Lo'i^  »'<ir  pet  ti)CP  nj.Ui  not  be  mfcIjarijcD  of  tljc^faiD  Cuffom  bj)  tijis  Ci)ar= 
ch  B.«on,  ter ;  for  tlje  liBorns  (Cijcolonium  $  Confuetuno)  laap  oe  appiicn  to 


and  other      iJiUcrfC  CyiniJSi  anO  where  the  Words  in  the  King's  Grants  may  be  ap- 
.        .  plied  to  diverie  Things,  they   ihall  not  be  extended  to  tijC  fattl  ©railD 


Referees 


Enc^land        CnftOm,  lUijlCf)  IS  the  ancient  Inheritance  ofthe  King,  ll\)  an?  Hfaije 

that  the 'laid  luljatfoeijcn   Q9»  i6  3:a.  g)cacc*  Refolben,  Ciitere* 

Grant  (that 

they  fhould  be  Ouieti  de  omni  Confuetudine)  did  rot  difcharge  them  of  the  Grand  Cuflom ;  becaufc 

tonliietudo  eft  Nomen   ar.juivocum,  and  fignifies  leveral   Kinds  of  Culloms  ;  and  lo,  being  a  general 

Word,    fliall  never  pafs  this   fpeci.il  Royal  Duty. So  where  the  King  granted  to  the  BurgeiTes  of 

Droghed-i,  That  they  fliould  be  difchargcd  De  Theoloneo,  Pall.igio,  Pann.igio,  L.rfr.^ic  &c.  And  it 
ivas  refolved  bv  the  Ch  Baron,  and  other  Referees  in  Englajid,  that  by  Force  of  this  Word  (Laftii'io 
&c.)  they  fliould  not  be  difch.irged  of  the  Grand  Culloni  of  15  s.  4d.  payable  for  every  Lafi  of  Hides, 
becaule  there  is  a  Lalf  of  Herrinr^s  and  a  Lall  o? Po-^der,    and  ot  fcteral  other  T'l in^s  as  luell  as  of  Hides. 

Dav.  Rep.  i-.  a    in  the  Cale  ofCuftoms. But  where  H.  5.  granted  to  the  Mavor,  Bailiffs  and  Ci- 

tiiens  of  Watertord  in  Ireland,  C«/?«OT<r?;j  dictx  Civitatis  vocatam  le  Qcqitett  capiendum  per  ISJanus  dicti 
.Majoris  8c  Ballivorum  in  perpetuum.  And  it  was  relblved  that  the  Ancient  Cuftom  of  Wool,  Wnol- 
fels  and  Hides,  was  well  granted  to  the  laid  Corporation  by  the  Words  of  (("uftome  Vocat.  le  Coc- 
(luctt;)  for  this  ancient  Cuftom  is  commonly  called  and  l^nown  by  the  Name  of  theCocquett  Cull'nra  in 
all  Ports  of  England  and  Ireland  :  And  (Culluma  dictar  Civitatis)  fli.iU  be  intended  Cuftom  payable  for 
J»Ierchandiies  in  dicta  Civitate  ;  for  favourable  Interpr^tion  fhall  be  made  of  fuch  Grants,  accor.l- 
ing  to  the  Ufage  and  Allottapce.  D^v.  Rep.  14  a.  Jilich.  5  Jac.  B.  R.  in  Ireland,  in  the  Cafe  of 
Cuftoms. 

5.    Prefentment  was  made  againll'  an  Abbot  for  p.iffenng  a  Eridgo  to 
fall,  which  he  and  his  Predccejjors  Lords. of  the  Vill  had  ttfcd  to  repair  'I'ime 
out  of  Mind.     The  Ablot  pleaded  the  Charter  of  H.  3.  to  be  quit  of  Repara- 
tion of  all  Bridges,  Walls  and  Caufways,  and  that  this  Charter  had  been 
allowed  in  Quo  W^arranto  &Cc.  yet  this  Plea  was  not  allowed  ;  for  this 
was  a  fpccial  Charge  or  Duty  ly  Reajon  of  his  Seigniory,  which  is  7iot  dif- 
8  P  PI.  C     ck^iged  by  this  general  Clatife ;  lor  where  there  are  *  Words  in  the  Grant  of 
\y,.  in  the    the  King,  which  under  a  general  Name  comprehends  Things  Roval,  and 
Cajeot         Bale  Things,  it  Ihall  be  taken  in  Favour  of  the  King,  and  the  Bale 
Mines.  Things  flull  pafs,  and  the  Royal  Things  jhall  remain  in  the  Crov.u. 

Dav.  Rep.  17.  cites  3  E.  3.  Fitzh.  445. 

6.  If 


Prerogative  of  the  King.  129 


6.  It  the  King  grants  Fines  and  Amercements  in  D.  this  will  not  lervc  B'"-  Conu- 
for  Fines  Pru  luentm  Concordamit ^  as  it  is  laid  there.     Br    Patents,  pi.  [^"",;  P",  '^• 
107.  cites  44  E.  3.  28.  sr"ViK~ 

file  Gi-ant  be 
Ex  certa  Scientia,  fpeciali  Gratia  &c.  they  bclonf^inp;  to  the  King  in  fb  high  3  Degree  of  his  Prei-ca- 

tive.     z  Inft.  5 1  5  • Kinj';  E.  4.    granted  to  che  Dean  and  Chapter  of  Paul's  ail  Fines  pro    Ihemra 

Cowforrf.7M(f;  of  all  their  Honiiigers  and  Tenant;.,  Rcfiants  and 'Non-reliants  within  their  b'ec  ;  Gawdv  f- 
held,  that  tiiis  Grant  did  not  extemi  to  the  Poli-f.nes  ;  for  Fine  pro  licentia  Concordandi  is  the  Queen  s 
Silver,  and  not  the  Poll-Fine.  _  But  VVray  held  tliat  all  fliall  pa's  by  it ;  for  it  is  about  one  and  the  fjmc 
Matter,  and  they  wore  of  Opinion  to  give  Judgment  for  the  Plamtitf.  i  Leon.  241;.  pi.  -8S.  Pafch. 
32  Elii.  Strait  V.  Bragg. 

7.  Note,  by  the  Opinion  of  the  f^ourt,  that  by  Grant  oiCoHufaiice  of  It  is  raid  in 
Pleas^  andofkxccuttoHsofit^  a  Man  cannot  levy  fines,  nor  bring  Writ  of  ^^^  ^"."^'•^■> 
Right,  and  make  Proteftatton  tn  Nature  of  Writ  of  Co'-^enant.     Per  Parley,  (jjj''"^p'i.  ^ 
k  is  ufual  to  levy  u  Fine  in  Ancient  JJ'emefne  in  E.  by  Eill  of  Gov  e-  Town  Cor- 
nant ;  Per  Knivet,  non  valet ;  for  a  Man  can't  by  Proteitation  in   Writ  porate  have 
of  Right  change  this  to  a  perfonal  Covenant,  and   yet  the  Grant  was  '^'^''^  J'"\- 
Quod  babeat  execiitionem  omnium  ylacitorum,  S  quod  in  omnibus  atiionibus  "^ /,"/^  ^//" 
placitari  fojjint  per  Breve  de  Reffo  pate/it'  or  to  make  Proteftationin  Nat  lira  cu~  AinnneY  of 
juscunqueBrevis.  And  yet  by  the  Opinion  of  the  Court,  he  cannot  levy  tines  t'l^^'-s,  as 
ivithctit  exprefs  Words  of  it ;  therefore  qusere  ,  and  it  feems  that  fuch  Mar-  ''•"''''  ^^"^  "^ 
tor  ut  fupra  does  not  lie  in  Grant.     Br.  Fines,  pi.  22.  cites  44  E.  3.   38.     ha'/^n'^^bch 

Franchife  by 
Grant  of  the  King,  that  yet  thev  cannot  levy  Fines.  Bur  Brook  fays,  That  if  they  have /'/f// ?o /ei,y 
Fines,  it  is  good  enough.  But  Coke  fays,  That  he  cannot  fee  how  fuch  Fines  can  be  good  ;  for  it  i< 
cxpref'sly  itgainll  the  Statute  oi  Modus  le-vanHi  Fines,  which  proziiiies  that  no  Fiiirs  jh all  he  levied  hut  only  in 
C  E.  or  hejcre  JuJIicei  o<,  0)er\  \o  that  none  can  be  levied  ellewhere,  unlets  eipccially  given  bv  Sta'ute 
(as  he  think.v)  as  Fine  cannot  be  levied  in  .-fncient  Demrfr.e,  for  the  Caufc  aforefiiid,  and  becaufe  it  is 
no  Court, of  Record;  bui  they  may  be  levied  within  the  County  I'-dUzinc  oi' Lancajler  or  Chejler  ;  but 
tliat  he  apprehends  to  be  by  divcrfc  Afts  of  Parliament.  And  it  may  bs  in  Cities  and  Tcivns  Corporate, 
•where  they  have  nf'd  to  le'oy  Fines,  ij  all  their  [fiitres  tind  Ciiftoms  are  icnf.rmcd  hy  Jcr  of  Parliament,  they 
may  levy  Fines  tiiere  ;  but  that  (iich  Fines  fliall  not  bar  any  Ellate  Tail,  nor  any  Stran"ers  who  have 
preicnt  or  future  Right.    Co.  R.  on  Fines  9. 

8.  Grant  was  made  to  John  of  Gaunt  Duke  of  Lancafter  of  all  Strays 
within  his  Fees,  and  a  Prior  ot  Spalding  held  of  the  Grantee  certain  Lands 
in  B.  in  Franka/mcipi  i  and  a  Stray  came  there,  and  the  Grantee  claimed 
it  by  his  Grant:  And  the  bell  Opinion  was,  that  he  Ihall  have  it;  for  he 
has  Tenure  there^  and  therefore  has  Fee  there  ;  for  if  the  Houfe  be  dil- 
fnlved,  he  fhall  have  the  Eicheat,  and  the  Tenant  may  have  Writ  of 
Melhe,  or  Neinjutte  Vexes.     Br.  Patents,  pi.  61.  cites  7  E  4.   n. 

9.  By  Grant  ot  'Tenerc  placita,  a  Man  ihall  not  have  Conufance  of  AV  by  this 
Pleas.    £r.  Patents,  pi.  4.  cites  9  H.  6.  27.  \\o\-dPia- 

citurii  a  Man 
cannot  have  Jjpfc  ;    for  it   is  ^lereU.     Ibid. 

10.  Trefpafs  upon  the  Cafe,  where  the  King  ^ra«/^f(7' to  J.  Billiop  of  Sa-  Md^rzm  to 
rum  and  his  Succeflbrs  certain  Liberties  in  all  his  Lauds  and  Fees;  this  J"e  and  my 
fyall  not  extend  but  to  thofe  Lands  and  Fees  which  foe  had  at  the  'Time  of  the    f"'^'^**. 

Grant.     But  per  Billing  and  Prifot,  if  the  Grant  be  in  all  his  Lands,  and  and  "'Toli'h 
in  Lands  to  be  purchafed  by  him  or  his  Heirs,    this    fliall  extend   to   his  good,  tho'j.-» 
Land  which  he  had  at  the  Time  of  the  Grant,  and  to  Land  w  hich  he  or  '^"•'^ "''  '^^''' 
his  Heirs  fhall    purchafe   hereafter.      Br.   Patents,    pi.  28.    cites  :?8  *f  "!^-^^ ''* 

H.  ^  '     ^  ^     the  Time. 

•^1°:  .  Ibid. 

11.  \ixh<i.Y^\r\^  grants  to  J.N.  to  amortife  certain  Land ,  yet  if  he  gives 
Land  held  of  the  King  in  Capite  in  Mortmain,  the  Land  ihall  be  feile\i  for 
Fine  for  the  Alienation ;  and  therefore  it  is  a  fed  to  put  in  fuch  Patents 
nou',  [^  i?..]  tho'  it  be  held  of  us  in  Capite.  Br.  Patents,  pi.  44.  cites  2  H. 
7.  13.  PerKcblc. 

12.  A.  was  Lellee  for  Life  of  the  Scire  and  Demefnes  of  a  Manor  rcn-  s.  C  cited 
dering  Rent,  the  P^crjerjion  thereotj  and  of  the  Rclidue  of  theM?/;&;-,  to  V'^'^-  v-l- 

Kk  the'^i'-'- 


i^o  Prerogative  of  the  King 


the  KiiJg,  •who  granted  the  Appiirtemuucs  to  W.  D.  lor  Years,  together 
with  all  Rents,  Services,  Profits  and  Hereditaments  thereunto  belong- 
ing ;  but  did  not  exprefsly  mention  the  Reverlion,  nor  was  there  any 
Recital  oi'the  Lealeofthe  Scite  and  Demelhes  aforefaid;  but  a  Kent  of 
74 1.  was  reierved  to  the  King  upon'  the  Leafe  of  the  Manor.  Bv  the 
belt  Opinion  the  Reverlion  pals'd  by  Name  of  the  Manor.  D.  233.  pj. 
10.  Mich.  6  &  7  £liz.  Aprice  v.  Rogers,  alias  Sir  Walter  Dennis's 
Cafe. 

13.  King  H.  8.  granted  to  A.  'fiirhariam  [nam  in  D.  for  21   Years  ; 

the  Grantee  plow'd  Part  of  it,  and  then  Q^  Mary  granted  to  B.  lotani 

illam  Turbariam  belore  demifed  to  A.     It   was  "adjudged,    that   the 

plow'd  Land  did  not  pafs,  but  only  that  which  was  Turbary.     Owen 

67.     23  F.liz.  C.^.  Farrington  v.  Charnock. 

Ji  if  J  ,?a«      14-  The  King  granted  the  Manor  of  B.  to  J.  S.  in  T'a'il  Male,  and  afcer- 

the  Af.jKpy  of  wards  l^y  another  Patent,  reciting  the  former,  and  the  Surrender  thereof  i:sic\ 

D  to  B.  iri     De  Gratia  fpeciali,  ex  certa  Scientia  &c.  he.  re-granted  the  faid  Manor  to  the 

qfkrwards  f^'^  J-  ^-  ^"^^  ^^-  ^'^  ^^''/^J  ^f^  ^°  ^^^  ^"^^  °f  the  faid  J.  S.  It  was  re- 
thc  jDotc/  folved,  that  by  the  Grant  of  the  Manor  without  the  \\ord  Revtriion, 
h  attainted  the  Reverlion  pafs'd  j  for  the  VV^ord  Manor  includes  all  EJlates  and  De- 
cfTrea/oii,  grees  of  Eftates  of,  or  in  the  Manor.  6  Rep.  56.  Trin.  4  [ac.  Lord 
Set'nc     Chandos'sCale. 

is  leifed  of  the  Rcverfion ,  and  afterwards  by  his  Letters  Parents  grants  Maneri urn  de  D.  to 
another  and  his  Heii's  ;  in  this  die,  t'lo'  the  King  crams  the  Manor  of  D.  as  in  PefTeiTion,  ycf 
the  Revcrfion  fhal)  pafs;  for  the  King  has  an  Ellatc  (vri.  the  Reverfion  in  Fee)  grantable  in  him, 
and  tlie  EHare  Tail  by  a  Common  Perfon,  need  not  be  recited.  And  this  is  not  like  to  ^iltOll 
'CUODD'S'  (iaff;  for  tiie  King  was  not  Conufant,  nor  informed  of  his  true  Eftate,  viz.  that  he 
was  feiled  in  Tail  with  the  Reverfion  expectant  to  his  Heirs  and  Succeflors ;  and  his  Grant  in  the  fame 
Ca'e  cannot  take  Effecc  without  Fraftion  of  Eftates,  or  doing  a  Tort,  and  therefore  not  like  to  the  prin- 
cipal Cafe;  for  here  the  Party  hath  informed  tiie  King  of  the  Truth  of  all  Matters  of  Kadt,  viz,,  of 
the  Eftate  Tail,  and  of  the  Delivery  of  the  former  Patent ;  fo  that  in  true  Judgment  of  Law  upon  the 
.Matter  contained  in  the  Patent,  the  King  has  on'y  Reverfion  in  Fee  expectant  upon  Eftate  Tail.  And 
in  this  Cafe  no  Tort  is  done  to  any,  nor  is  tli."e  any  Fracliion  of  Eftates;  and  here  the  Ir.tenthn  t>f  the 
King  ivas  to  depart  iv!'h  all  his  Eftate,  and  lefi  Juall  pafs  ly  this  Grai.t  {-viz-  the  Keverfcri)  than  'u  iiitended 
to  pafs;  for  he  intended  to  pafs  the  Pfjj'.'^icin,  and  fo  he  is  not  at  any  Prejudice.  But  it  more  fiiould  pals 
than  he  intended,  As  where  he  intended  to  pals  only  a  Reverfion,  and  there  a  Poflellion  (hould  pafs,  in 
luch  Cafe  it  would  be  otherwife  ;  I'efides,  this  Grant  being  made  Ex  certa  Scientia  &  racro  Motu,  fhall 
be  taken  in  themoft  benign  and  liberal  Senfe,  according  to  the  King's  Intention  and  Meaning exprefs'd 
in  his  Grant.     6  Rep.  56.  S.  C. 


See  (lb)         (c.  c.)     Grant  of  the  .  Kins;.      FWhat    fliall    pnfs 

(K.b.)(L.b.)       V  ^  1    rrr^    1 

(Zb)(A.c.)  by  p-eneral'   /fords.  \ 

(B,c.)CD.c.)  -^  '^  -* 

(Ec) 

irhathecan  i^rTpt)(J5  Right  of  the  King  fljall  llOt  pHOS  by  gefleral   \\'ords. 

f ""'  ""'-^  ''y     X  '  8 1),  4. 2. 

/  IS  L   'fCYO^it-  .^^fc-  IT  I 

true  can  never  pafs  by  general  Words;  and  therefore  Chofes  in  ABion  will  not  pafs  without  fpecial 
Words.     12  Rep.  2.  Pafch.  4  Jac.  Ford  v.  Sheldon. 

Br.  Forfci-        2»  Id^  H  ©mUt  50  Bonis  &  Catallis  felonum,  (55OOtI0  Cftl  Felo  de  fe 

turc  de  Ter-  fljaJl  HQt  paR>«      8  Jp,  4*  2, 

cite'sS.  C.  Per  Till. S.P.  Nor  Z)ei;i  of  Felons.  Vent.  ;2.  Anon. Saund.  2-5.  The  King  v. 

Sutton. Le  99.  Arg. Roll  R.  ;99-  The  King  v.  the  Billiop  of  Durham. ^^Sid.   142. 

Southampton  (Mayor)  v.  Richards. ^ov  Obligations  ;  Per  Shute,  Owen.  155.  3c  &  31  Eliz.  in  Cafe 

of  Biiliop  of  Canterbury  v.  Hudfon,  cites  19  H.  6.  42. — Unkfs  by  fpecial  If 'crds.  2  Le.  51, Nor  tiiofe 

Goods  iihich  the  Felon  has  flolen,  but  only  his  own  proper  Goods.     Per  Coke  C.  J.   3  Bulft.  14S.  in  Prin- 

flon'sCafe 12  Rep.  75.  S.  P. — Jenk   325.  pi.  40. But  fuch  Grantee  Ih.iil,  without  Doubt,  have_ 

the  ready  Tiloney  ;  for  ready  Money  may  be  granted  by  that   Name,    tho'  not  demanded  by  the  Name  of 
Bona.     2  Show.  153.  Mich.  ■;2  Car.  2.  B.  R.  Anon. 

The  Admiral  in  his  Patent  lias  granted  to  him  Boia  Viratanmi.     Rcfolved  by  all  the  Judges,  that  the 
Goods  of  Pirates  pafs  by  this  Grant,  and  net  {iratkal  G.vdf.     Jenk.  5  2  5-  F'-  ^"^-    . 

Qpsre, 


Prerogative  of  die  King.  1 3 1 

Quxre,  If  the  Prefentation  of  a  Church,vih.\c\\  becomes  vacant  during  an  OtitUzi-ry  of  t!ie  Patrori,  fh;il] 
paf;  by  tiic  VV'oi'ds  in  a  Grant  of  BonA  5c  Catalla  Felonun  Fugitivoi-iim  &  L/clao;atorum.  VA'rrliiicriv 
and  l^criara  were  of  Opinion  tliat  it  would  pal.s,  but  Shucc  and  Andcrlbu  cooutra.  ( Jvvcii  155.  The  KiQ<'' 
V,  tlic  Archbifliop  ot  Canterbury  8c  Hudlbn. 

3  ♦  Nor  Of  a  Clerk  convict.     8  fp»  4,  2*  BrForfei- 

tare  de  tcrres.    si.  1 1,  cites  S.  C.     Per  Ti.I. 

4»  Nor  Of  one  vvho  is  put  to  Penance.     8  !•)»  4*  2»  S  P.  Kavm- 

242.  circs  Ji- 

C. S.  P.  Unlcfs  in  a  County  Palatine.  Per  Coke,  Ch.  ].  5  Bulft.  I  5(5.   in  Cafe  of  the  King  v.  the 

Bifhop  of  Durham. D.  26S.   h.  pt.  iS.  (^u-irc.  They  will   not   pals   unlcfs  there  are  Words 

Jpeciaily  e.'itcnding  to  the  Goods  of  iucii.;  becaufc  one  adjudged  to  his  Pea/ince  for  ftanding  mute,  does 
net  feem  to  fi-jfer  as  it  FeloK,  being  neither  attainted  nor  convidled  of  any  Felony,  but  as  a  Perlbn  re- 
fufing  to  fl-and  to  the  Law  of  the  Land.  And  ic  leems  rather  the  ftronger  Opinion,  that  they  paCs  not 
by  the  Grant  of  all  Gooiis  of  Felons  and  Fu<!iliLcs,  of  all  Pe:fons  ivitlitifiuh  a  Dhh-lct ;  fothatiffuch 
Pertbn  for  any  TrefpaCs,  or  other  Fault,  ought  to  lofc  Life  or  Illcmber;  or  fhall  fly  and  refulc  to  itand 
to  Judgment,  or  do  any  other  TrefpaC  for  which  they  ought  to  lole  their  Chattels.  2  Hawk.  P.  C.  5.  51. 
cap  50.  S.  21. 

5+  'BP  H  (Srailt  Of  tIjC  6OOtJ0  Eorum  qui  pro  aliquo  Delicto  Vitam  I"  Appeal 
■\el  Menibruiii  aniictere  debeant,  tJJC  <iD00l3d  Of  OilC  v\ho  is  put  to  Pe-  ^"^"^  ^^"^^''^ 
nance  fljali  UOt  pafS?.     8  ft),  4^  2,     DUOltatUr*  jud"g-dToPc- 

nance  for 
ibnding  Mute,  and  he  had  Good.s,  and  the  Bifhop  of  L.   claim'd  them  by  Grant  of  the  King,  that  he 
fliouid  liave  Catall.i  Felcnum  ©=  Fiigitiicrur,]  4e  cwrJihus  Hominihus  &  Te/ientihts  in  terrrs  fait,  &  de  o>iir,i- 
■s  Rrjide>:til)tis  hi  terrrs  frxdiiiis-    It.t  cfttodj! prtcdicli  homhifs  tener.tcs  aiit  rcj:der:tes  aut  eorinn  alianis  in  ier- 
I  priediHis  fro  ah(jtio  DeUcfo  ant  Tranf^rejjtove  vitani  vet  r,:ernbrmn  amittere  debeant  ant  debet,  aiit  fuj;er/i!t 
■'  Inherit,  ant  judicio  Hare  noluerirt  ant  Mltierit,ve!  ah^.uam  aliam  1  ranfgrcjfonein  fecerint  fro  ijii.z  ipfi  catalla 
'■dere  debeant   in  cjuoct:ncjtte  loco  Jtijlitia  de  eis  fieri  debeat  fi'ze   in  rnria  nojira  five  in  alia  curia  ifja  catalla 
■t   iff  US   Effcofi  &  per  M/>:iflros  fiios  iti  manibiis  fuis  fafiri  pcfftnt  fne  dames  fend'.     And  by  Gafcoin, 
Tirwir,  and  others,  the  Bifliop  (hall  not  have  the  Goods,   for  x\\c- Felon   •a-.ts  not  judg  d  lor  the  F:lonr, 
tut  jor  the  Contempt,  and   ITiall    not  pafs  from  the  Kiig   by   fiich   general  Grant;  tor  if  a  Man  commits 
Treafon,  there  the  BIlliop  fiiall  not  have  the  Forfeicure.   But  Huls,  tikrene,  and  others,  to  the  contrary, 
for  he  lofcs  his  Life  by  this  yudgmciit,  therefore  the  Bifhop  fli.iU  have  the  Goods.     And  bv  the  Sta- 
tute of  V\"e(f.  T.    c.  12.  If  a  IStan  Ihmds  mute  in  Appeal,  'he  ihall    be  convltted   and  (hall  fjrfeit  hi-; 
Goods  as  non  Defendendo,  a'ld  the  Statute  gives  no  more  hut  that  he  ihall    be  put  to  Penance.     But  it 
■was  agreed  by  all,  that  the  Goods  are  forfeited,  &  Adjornaair      Br.  Forfeiture  de  Terres.  pi.  11.  cites 

8  H.  4.  I  6c  2. 

6»  %\  tiJC  l^tltg  n;rilltt0  all  Forfeitures  of  the  Tenants  of  the  Grantee 
for  any  '1  relpals  or  any  other  Oitencej  for  which  they  lluill  lofe  Lite 
and  Member,  or  aliquo'  alio  Delicto  for  which  they  ihall  lofe  their 
Chattels  ;  yct  ifOtfCItUCeS  fOC  Contumacy,  a»  jfOllcitlirC  Of  iSOOil.S 
upon  Outlawry  in  TrelpaLs,  iijali  UOt  pilf-S  ti)Cl'£i5p.  m  D.  6.  jo»  h, 
^0  iForfeitUrE  of  ©aaD0   upon  Premanue. 

7.  CIjE  mnij  may  grant  lHues  and  Amerciaments  bv  general  Words,  Br.  Patents. 

9  JX6*  27,  tl»  ^  ■  ^SC  — ' 

&  of  Grant  <^f  Qxttallis  Feloniim  Qp  Fncjtivorum.  Br.  Patents,  pi.  4.  cites  S-C.  —  So  of  Grant  of  Conufance  of 
Pleas  in  qniius ittuqueCuriis  nofiris.  Br.  Ibid.  —  U zhe  King  s^rnnts  to  »:e  .-ll Fines  and  Jmerciamenls  in  the 
County  ot  B.  and  I  am  amerc'd  ihere^  I  fhall  not  have  the  Amercement  ;  fjr  it  fhall  not  be  intended  the 
Will"  of  the  King.     Per  Martin.     Br.  Patents,  pi,  15.  cites  S  H.  6.  19.     - 

8»  By  fuch  Grant  jfOffdtUrCS  Of  <J5aOt!0  upon  a  Premunirc  lor  Non- 
appearance, ijp  ujijicl)  tije  l^mo  i5  put  out  of  tij.c  i^fotcction  of  tijc 
Itinn;,  Ho  not  paljs*    1 1  ix  6,  so,  P. 

9.  Pnrvg.  Rtg.  cap.  15.    17  A'.  2.     'the  King's  Gift  or  Grant  of  Laud  or '^J}^'^^'^  ^^''<=^ 
Manors   cam   priimntiis   conveyeth    not   Knight's   Fees,    Advowfons,    or  ^'"J  ''"^f^^ 
Doi.vers,  ivtthoat  esprcfs  Words.  jc>i  ofP-ttrcn- 

a7e  or, a  Pri- 
ory, and  grants  the  Patronage  to  .inothcr,  without  making  mentis  of  tie  Corody,  he  who  has  the  Patronage 
Ihall  have  the  Corody  ;  and  the  King  cannot  grant  or  give  the  Corody,  by  cKprelsU'ords  ;  nor  the  King 
cannot  rel'crve  the  Corody,  where  he  parts  with  the  Patronage.  Ard  fo  feca  Thingcannot  pais  from 
tlie  King  by  general  Words,  and  by  reafon  of  another  Thing,  witlioilt  exprefs  Mention.  .\nd  other 
Things  arc  at  Common  Law,  as  (13rook  fays)  it  feems  liere,  and  are  not  takcii  by  Ecuity  of  the  Pre- 
rogative, as  i.s  manifelted  by  the  Cafeof  the  Corody.     Br.  Patents,  pi.  54.  cites  26  Aff  5V loRcp 

64  b  in  Whiltlcr's  Cafe,  citts  S.  C.  [but  mifciies  it,  as.aS.Aff.  pi.  (.<5;)  j^liercas  it  fli  mid  be  as  in 
Br.  (55-)]  ■"     '    '  ■ 


in 
If 


I  q  2  Prerogative  of  the  King. 

If  tlie  Kin{5  ;;vants  to  ].  N.  J/.znor  or  Land  &c.  and  Hoes  not  make  mention  of  Fees  of  Kni;;In  and  *  ^J. 
wu-fopj,  there  tiioi'e  do  liot  pafs  ;  foi- tliey  do  not  pals  without  exprcfs  Words.   Br.   Patents,  pi.  5.  cites 

41  E,  :    5 But  where  the  Kirg  makes  Livery  to  ar  Heir,  or  makes  Re/litiitKn  or  Grant  of  'fem- 

foralities  to  a  BiOiop,  there  thole  pal.s  without  eicprefi  tf'ords.     Kote  the  Diverfity.  Ibid. Br.  Livery. 

pi.  2.0.  cites  S  ('..  &:  21  E.  5.  40. Br.  Livery,  pi.  45.  cites  S.  C  • — ■  Br.  Patents,  pi.  75.  cites  S.C. — 

*  S.  P.  Per  Wcl^on,  f    PI.  C.  243.  cites  Trcatifc  of  Prirogativa  Regis,  cap  i  5. 

In  Quare  Inipcdit,  "the  C'afe  was,  that  Kini?^  H.  before  the  Statute  cf  Prerogative,  .^r/itited  a  ALwor  to  J. 
N.  liiti  cut  expvcjj'it:g  tie  .^dioii-foj!,  avd  •without  J  ay  ill?  Cut/:  Pertiiientiis  ;  and  yet  by  Judgment  the  Ad- 
"vowt'on  pafles,  becaufe  it  was  appendant  to  the  Manor  ;  but  now  by  the  Statute  of  Prerogative,  Ad- 
vowfon.  Dower,  Fees  of  Knight,  do  not  pafs,  unlefs  exprefsly  mention 'd  ;  and  that  if  a  Common 
Perfon  be  feiled  ()f  a  Manor  witli  Advowfon  appendant,  and  grants  the  Manor  cum  Pertinentiis,  the  Ad- 

vowfon  pall'es.     Br.  Patents    pi.  6.  cites  45  £.  5.  22.  Br.  Prerogative,  pi.  7.  cites  S.C. 10 Rep. 

64    in  Wliifticr's  Cafe,  cites  S.  C. 

This  Att  is  reftrained  only  to  thefe  three  Cafes  of  Advowfons,  Knight  Service,  and  Dower  ;  for 
/,cf/ fliall  pafs  without  exprefs  Mention,  or  Words  equipollent,  as  is  held  in  18  H.  6.  12.  So  of 
Forejl  appei:daiit  to  an  Hoiuiir,  as  is  agreed  in  zf>  Aff  60.  So  o(  Corody  appendant  to  a  Patronage  of  a  Priory, 
as  appears  in  26  AlT  62.  And  the  Words  of  the  Act  are  i^</ini^o  Dominns  Rex  dat  lel  covcedit,  and 
therefore  in  Cafe  of  Refutation,  Advowfons  &c.  ITiall  pafs  without  exprefs  Mention  of  them,  orWords 
e<iuipollent,  as  in  Livery  to  the  Heirs.  2dly,  In  RelHtution  of  'Jemporalties  to  the  Succejfor  of  the  Bipop 
&c.  10  Rep.  64  b.  cites  41  K.  5.  5.  b.  27  Aff  48.  PLC  in  Lord  I5arhlCp's  Cale.  251,  252,  20 
Eliz.  D.  ;o6.  accordingly.  But  that  Thorp,  Ch.  J.  faid  in  the  fame  Plea,  That  if  a  Manor  tvith  Ad- 
iiciifon  appendant  be  in  the  Hands  of  the  King  by  Efcheat  or  by  Purchafe,  if  he  at  this  Day  [fince  the  Statute 
ot  Praerogativa  Regis)  gives  it  as  entirely  as  j  S.  held  it  before  it  came  into  our  Hands  by  •xay  of  Efcheat, 
or  as  y.  S.  held  who  enfeoff'd  us  ;  in  fuch  Cafe,  the  Advowfon  fhall  pals  without  faymg  in  the  Charter 
Cum  Feodis  &  Advocationibus,  becaufe  the  Law  in  fuch  Cafe  intends,  that  the  King  is  apprifed  of  his 
Eight.     Quod  Curia  conceflit. 

10.  If  the  King  grants  a  Hundred^  '■jjhich  has  a  Leet^  to  J.  N.  and  ano- 
ther Man  has  a  Manor  and  a  Lcet  in  it  within  the  Hundred^  if  he  makes 
Hue  and  Cry  there  &c.  the  fixid  J.  N.  Ihall  not  have  the  Puniihment  of 
it,  but  it  IhaJl  be  punilhed  in  the  Eyre.  Per  Wilby.  Br.  Grants,  pi.  31. 
cites  21  E.  3.  3,  4. 
G;.fr,r ,w here  1 1.  In  Quare  Impedit,  where  the  King  makes  Livery  to  the  Heir  within 
he  makes  Li- ^       x_\iQXC  t'ees  and  M-coi<ofons  do  not  pafs.     Br.  Livery,  pi.  20.  cites  21 

very  at  full    rr  Or  P  - 

jfice  upon  Suit, 

there  they  pafs  by  general  Words ;  but  in  the  other  Cafe,  they  do  not  pafs  vjithout  fpecial  Jl'ords  exprefled. 

Note  a  Diverfity.     Ibid. So  in  Quare  Impcdic,   41  E.  9.  5.    Where  the  King  renders  the  'femporalties 

to  a  Bijlvp  eleH  before  that  he  be  fivorn,  F"ees  and  Advowfons  do  not  pals  without  exprefs  mention.    Ibid. 
Contra,  where  he  renders  them  ajter  the  Confecratton  of  the  Bifhop.     Ibid. 

12.  If  the  King  grants  Rettirna  omnium  Breviutn,  yet  the  Grar.te 
fliall  not  have  Return  of  Exchequer  Summons.  Br.  Patents,  pi.  32.  cites 
22  All".  49. 
Jenk.  25.  pi-  13-  King  H.  \v^.s  feifed  of  the  Honour  of  Pickering,  to  which  a  Foreji 
55.  cites  2(5  was  appendant,  and  the  King  granted  the  Bailiwick  of  it  to  one  in  Fee, 
Aff  (5.  S  C-  rendering  Rent  ;  and  after  he  gave  the  Honour  cum  Pertinentiis  to  E.  Earl 
be\6o)L''in  ^^'  Lancalter  i  and  by  this  the  ForcJ^  pafs'd,  but  net  the  Bailiwick  nor  the 

Br. .Br.  Rent  reier\ ed  upon  it  ;    for  this  was  fevered  before  from  the  Honour, 

Incidents.      and  theretbrc  cannot  pafs  as  appendant  i  for  it  was  in  Grofs  before,  and 
pl  Ti.  Cites   does  not  pafs  unlefs  by  exprefs  Words,  Quod  nota.     Br.  Patents,  pi.  35. 

loR     6db  '"''■^^  ^^        '  ^°' 

Br  Corody       ^4'  "^^^  ^"Ip  *^  Founder  of  a  Priory,  and  confirmed  to  the  Prior  all 

pl.  2.  cites     ^^^  Poffefffons,  Tenend.  libere  S  quiete  ab  omnibus  Placitis,  Gtldis,  7'ohietis 

S.  C.  &  44  ^i/crelis,  yicfionibus  et  Demandis,  ct  ab  omni  Scrvicio  et  Kaaffione  Secnlari 

E.  3- ^4- — ■  &c.  And  notwithllanding  thofe  Words,  he  wms  charged  ofCurody,  Rea- 

f'^  ^c\^l\,fo''Me  Aids,  and  to  repair  Bridges  and  Caufways;  quod  nota,  that  the  ge- 

E.  5.  24.  &  iieral  Words  do  not  bind  the  King.  Br.  Patents,  pl.  78.  cites  50  All.  6. 

14H.  6.  12         15.  In  Trefpafs,  the  Defendant  jullify'd  by  Grant  of  King  R.  2.  who 

granted  Bona  S  Catalla  felonum  ^  fugitivorutn,  &  alioram  qui  pro  aliquo 

DcliRo  Vttam  I'el  Alcmbrma  amittere  dehent  feu  pro  aliquo  alio  Delilfo,  pro 

quo  bona  aut  Catalla  perdere  debent  in  his  Manor  of    D.  and  one  was  out- 

law'd  of  Trefpafs,  and  lie  took  his  Goods;  and  the  belt  Opinioa  was, 

That  he  Avell  might,  by  reafon  of  thefe  Words  (DcliCt'  pro  quo  perdere 

debet  Catalla  fua.     Br.  Patents,  pi.  S6.  cites  11  H.  6.  50. 

i^.  A 


Prerogative  of  the  King.  i  c^  c^ 

1 6.  A  Re£lory,  to  which  -An  Advowfon  of  a  Vicarage  was  ^ppi^»dafjt  'yu^Kw 

"but  the  -annual  Revenues  and  Profits  oi  them  were  concealed^  caiiie  to  the  had  iIk-'aiI- 

^itcen  by  the  Jttainder  of  J.  S.  which  being  found  by  Office,  the  ^ticcn,  vow'bn  of 

jur  a  valuable  Corijidemtioii^  ex  certa  Scicrjtia  8cc.  granted   the  Poflel'fions ''>"  "^'"•'•■"'^K^ 

ot"  the  Glebe,  and  Tithes  of  the  Retlory,  by  fpecial  Names,  and  gene-  „,.!^'a)^- 

11  /  (      J ..  ^      o        u   I         •  L     /■  '    .     .  i'  gi  anted //ftf- 

raJly  onima  Hereditamerita  cic.  belonging  to  the  lame,  not  vientiontng  ex-  r/.im  fu.m,  ,ie 

prefsly  the  Keftory  or  Jdvowfon  of  the  N'icurage,  adeo  plene  &c.  as  the  /J-  Tlic  Ad- 
iJi     ■"  ^    ■    ■  ■  ■  ■    .     -     .       -  „      „ 


ce;i 

carage  did  pa{s,  and  that  the  (^leen  was  not  decei\  ed  in  her  Grant,  for  Marg.  pi. 

want  of  Knowledge.     D.    350.   b.  pi.  21.     Pafch.  18  Eliz,.  *  Anon.       ^'     '^''^" 

Mich.  :i 

&  ;2  El.  C.   B.   Denny  v.  Aftill  ♦  Bendl  252    Blagrave  v.  Pierce  and  Shaw.  S.  C.  adjudg'd. •, 

S.  (J.  cited  Per  Cur.  10  Rep.  65.  b.  in  Whiftler's  Cafe. 

17.  The  Queen  feifed  of  the  Manor  of  Gafcoigne,  and  of  a  Grange  called 
GafcGigrie-G range  in  D.  granted  all  her  Lands^  'Tenements^  and  Heredita- 
ments tn  D.  Adjudged  by  the  whole  Courc,  That  the  Manor  did  not 
pafs.     Godb.  136.  pi.  159.      Pafch.  28  Eliz.  C.  B.     Giles  v.  Newton. 

18.  The  Queen  having  the  Ad-voiv.on  cj  the  Vicarage  of  D.  granted 
the  Vicarage  to  B.  It  was  held,  that  the  Advowfon  did  not  pafs ;  for  by 
her  Grant  nothing  pallcs  but  what  fte  intended  to  pafs,  and  the  Vicar- 
age is  a  different  Thing  from  the  Advowfon,  and  every  Thing  mult  pafs 
by  its  proper  Name  ;  Nor  Ihail  it  pafs  in  the  Cafe  of  a  Common  Perlbn. 
Cro.  Eliz,.  163.    Mich.   3i&32Eliz.   C.  B.     Anon, 

19.  Tlie  King  granted  to  A.  a  great  Manor ^  called  an  Honour,  and 
palfed  it  by  Name  of  an  Honour ^  and  well.  Jenli.  277.  pi.  99.  cites  Pi. 
C.  311.     The  Cafe  of  Mines. 

20.  Juc.  I.  granted  to  Sir  R.  M.  and  his  Heirs,  by  Letters  Pa- 
tents, the  Territory  of  Rout,  which  is  Parcel  of  the  County  of 
Antrim,  and  adjoining  to  the  River  of  the  Banne  in  ea  parte,  where 
there  is  a  Pijchary  of  Salmons  j  and  the  Grant  was  of  omnia  Caftra, 
Mefiiagia,  T'ofta,  Mulendina,  Columbaria^  Gardina^  Hurtos,  Fomaria^ 
Terras^  I'ratUy  Pafciia,  Pajhiras,  Bofcos,  Siibbofcos,  Reddit.  Rtver/tones 
&  Servitta,  Pifcarias,  Pifcationes,  Aq/ias,  Aqiiartm  Curfiis  &c.  Ac  om- 
nia alia  Hiireditamenta  in  vel  intra  dift  Territorium  de  le  Rout  in 
Comitatu  Antrim  exceptis,  et  ex  hac  conceffione  nobis  Heredibus  et 
Succellbribus  noftris,  refervatis  tribits  parti  bus  Pifcationis  fiuminis  de  le 
Banne.  The  Chief  Judges  being  of  Privy  Council,  upon  View  of  feve- 
rai  Pipe-Rolls,  in  which  this  Matter  was  found  ieverally  in  Charge  as 
Parcel  of  the  antient  Inheritance  of  the  Crown,  and  upon  Conlideration 
had  of  the  faid  Patent,  certified  their  Opinion  and  Refulution,  That  wo 
Part  of  this  faid  Pifchary  faffed  by  the  Letters  Patents  atbrelaid.  It  was  alfo 
refolv'd.  That  no  Part  of  this  Royal  Pilchary  of  the  Banne  could  pals 
by  the  Grant  of  the  Land  adjoining^  by  general  Grant  of  all  Pifcharies  i 
for  this  Royal  Pifchary  is  not  appurtenant  to  the  Land^  but  it  is  a  Pifchary 
in  Grofs,  and  Parcel  of  the  Inheritance  of  the  Crown  by  itfelf  And 
laftly  it  w;is  agreed.  That  where  the  King  had  granted  to  Sir  R.  M.  all 
the  Territory  adjoining  to  this  River,  and  all  Pifcharies  within  this  Ter- 
ritory, Exceptis  tribus  partibus  Pifcarice  de  le  Banne,  that  the  fourth  Part 
of  this  Pifchary  fhall  not  pafs  to  him  ;  for  theG;v?/7/  of  the  King  Jhall  not 
pafs  any  Thing  by  Implication.    Dav.  Rep.  55.  a.  to  57.  b.  Mich.  8  Jac.  in 

Ireland.     The  Cafe  o'L  the  Royal  Pifchary  of  the  Banne. alias  Sir 

Randal  Mac  Donnell's  Cafe. 

21.  General  Words  in  a  Grant  of  the  King  fliall  not  pafs  fuch  2.  fpecial  S  P.'  Dav. 
Royalty  as  belongs  to  the  Cro-xn  by  Prerogati-ve  i  As  iMines  Royal,  Amerce-  J^^^P-  '  '■  »• 
inents  Royal,  Efcheats  Royal,  fhall  not  pais  by  general  Words  of  Ail  b'r'^  in'lhc 
Mines,  Amercements,  and  Efcheats.     Dav.  Rep.  51.  b.   In  the  Cafe  of  Caie of  Cu'f- 
the  Royal  Pifchary  of  the  Banne.  toms.  — 

—  S.  P. 

_   ,  J«"i-  5^4-  pi-:7- 

L.    i  22.1c 


-i^z).  Prerogative  of  the  King. 

22.  It  WHS  lefolved^  that  by  a  general  Grant  of  a  Manor  (which  had 
been  forfeited  to  the  King  by  Attainder  of  Trealbn)  Cum  Pcrtincntiis, 
and  of  all  his  Interejl,  Claira^  and  Demand  therein^  a  Writ  oi'  Error  (o  re- 
verfe  a  Comiuoii  Recovery  (which  had  been  erroneoully  i'uHcr'd  ot  the 
Manor)  did  not  pafs,  notwithltanding  theClaufe  i^cypfcvW/ Gw/m  ^c. 
For  if  the  King  could  grant  it,  it  mult  be  by  Virtue  of  his  Prerogative, 
(for  no  common  Perfon  could  do  it)  and  then  it  ought  to  be  by  expreis 
and  precife  Words.  3  Rep.  4.  b.  Trin.  25  Eliz.  The  Marquels  of 
chelter's  Cafe. 

23.  If  the  King  grants  £cf/f/?^«7,  t\\t  Jdvowfon  pafcs  ;  For  the  In- 
tent, and  not  the  precife  Words,  are  to  be  regarded  in  the  Grant  of 
the  King.  Per  Jones,  J.  Lat.  248.  Hill.  22  Jac.  In  the  Cafe  o^  Evans 
and  Afcough-  —  cites  7  E.  3. 

24.  Sir  Francis  Foncicue  feifed  of  a  Manor  granted  it  to  the  E.  of  Den- 
bigh, except  f/ich  Lands  as  ivere  then  held  for  Life  by  Copy.  Afterwards 
the  Inheritance  of  this  Copyhold  "was  granted  to  the  faid  Earl ;  The  Copy- 
holder dies,  t\ie  Elarl  granted  ^rgain  Ipy  Copy,  and  then  forjeited  all  to  the 
Kt/ig.  The  King  granted  the  Manor  &c.  and  every  Part  or  Parcel,  or  re- 
puted Parcel  thereof.  Lord  Ch.  J.  North  deliver'd  the  Opinion  of  the 
whole  Court,  that  tliefe  Cophold  Lands  paffed  by  the  Words  (Reputed 
Parcel.)  And  that  in  this  Cafe,  where  the  Jury  have  tound  the  particular 
Matters,  and  thofe  Particulars  are  a  folid  Ground  for  a  Reputation,  the 
Court  iliall  adjudge  it  Reputed  Parcel,  and  fo  Ihall  pafs  by  thofe  Words 
in  the  Grant  of  the  King;  and  Judgment  was  given  accordingly.  Freem. 
Rep.  207.  Pafch.  1676.     C.  B.  Lee  v.  Browne. 


fKb  KL^)  (■^- ^O  Grant   of    the  King    [bj;  ge;jeml  //'ords  j    and 

(z.b)(A.c)  eiQJjat  pa/ks.'] 

(B.  oec  c;  ^^     -J 

(Ec) 

Br.  For-    i*T  if  tljC  Mlfi  gCmttlS  tO  nitOtljet  *  Bona  &  Catall:'  tenentium  fuorum 
feituie  de  -I  fugitivorum  &  lelonum  qualiter  cunque  damnatorum.     ^UO  tlFtCC 

Ten-e.  pi  51.  3  -^enjfnt  Of  ti)e  Grantee  10  attainted  of  Treafon  for  Miill^  ttjC  i'^ef^ 

Brpatems~  ^^^Wt  Of  tije  EiiiPc,  tJjc  ©mutcc  njaH  not  {}a^e  W  Cljattcljj^  ijccaufc 
pi;  2.  cites  ijc  15  attiimt£0  Of 'STrearoiu   22^.^9*  ^DiuQpti* 
s.  c.  — 

Bora  Felovtim  &>  qitaVitercunejite  DamnaioTiim  does  not  extend  to  High-Tieafon,  bccaufc  Felony  is  named 
firft.     Hard  441.  cites  u  H.  ^.  54  b 

*  The  Kii'g  granted  to  the  Earl  of  Arundel  and  his  Heirs,  ex  gratia  fpecijli,  certa  Scientia  &  mero 
motu  omma  Bona  &  Ctxtalla  feloiuim,  Qpfelcn'  de/e,  atihiH'  tie  prod'Hicne,  de  feionia,Utla^atoriim  in  cxigendo 
tofltorum,  Hoi'ihium  f-.torum,  hiiepre  tenenlium  &  )io)i  hitegre  teneiilnim,  refidsntiion  de  ^  in  omKibns  manniis, 
&  HxreditArtievtu  dicfi  Csniith.  The  faid  Earl  via&feffcd  in  Pee  of  the  f/u/idred  cf  Paling  in  the  County  of 
Suffex.  B.  held  a  Tenavct  in  Fee  ivithin  the  /,rid  Hundred  of  the  /aid  EnrI,  .u  of  his  Perfon  ;  B.  was  at- 
tainted o^'  'Tre.ifon  commictcd  by  him  in  the  County  of  Hereford,  and  h.id  a  Leafe  for  Tears  and  Goods 
ivithin  the  faid  Hundred  of  Paling,  and  c/fcwhere,  where  the  Ear!  had  not  any  Hereditament.  RcTolved  by 
all  the  juds^es  of  England,  that  the  Lord  Lumley,  who  has  the  Eltatc  of  the  Ear!  of  Arundel,  fhall, 
by  Force  of'the  faid  Patent,  have  the  faid  Tenancy,  Lcafe,  and  Goods.  The  Word  ( De)  fh.dl  be  con- 
ftru'd  and  relate  to  any  Tenure  of  the  Perfon,  or  of  any  Manor  of  the  Elarl  ;  The  Word  (/«)  reKates 
to  Goods,  the  Word  {he)  to  Tenancies  which  are  held  of  the  Earl,  be  the  Tenants  refidenc  or  non- 
refident.  This  is  a  f;ood  Pi-ecedent  to  conlh-ue  Beneficium  principis,  quod  debet  eflc  manfurum.  The 
Words  in  a  P.itent  E\  certa  fcientia,  lp:cijli  gratia  &  mero  inocu,  make  the  Cafe  of  the  King  like  the 
Cafe  of  the  Grant  of  one  Subjeft  to  another  ;  if  the  King  be  not  evidently  deceived.  Jenk.  255.  pi. 
45. cites  30  Elii.     Lord  Lumley's  Cafe. 

Br.  Patents.       2»   But    tipOtt    tW    ©V^Ht   IjC   (Ijatl  i^'Ot  t\)t  Cf)ittttI.S  Of  !ji5  '^t'- 
P''r?^'  "^R^tWnt  vvho  is  attainted  of  Petty  Treafon  for  kiJling  ot  his   Malter.     22 

Forfeiture      VilU  49^ 

de  Terre.  pi. 

51.  cites  S.  C.      For  in  Petty  Treafon  the  King  fliall  not  have  the  Efche.it  heli  of  another.     Contra, 

in  High  Treafon.  £^ 

3.  ^U 


Prerogative  of  the  King.  i  o  ^ 

3«  CijC  li\inO;  by  general  Words  mnj?  ffVatlt  Chattds.     9  iX  6.  28*  <>^a.^-1 

Fol.  19,-. 

4*  Jf  it  A'f an  outlaw \1  be  pofTcfs'd  of  a  Term  fot  J^Carel,    Ot  Of  a  k^'^PTV 
Ward,  ntiri  tl)C  t^UUJ  KraUtS  to  anOtljCr  all  the  Goods  und  Chattels  Of  pi  4'  cites 

Ijiiu  fo  oiirlaiD'D,  tlje  l^atcntcc  fijail  iy^u  tlje  Cerm  aiiU  tijc  \mfo,  ^  t:  Per 

9  3tp,  6»  28,  Babington. 

5*  Jf  tije  l^ilin;  grants  to   aUGtIjCr,  that  he  and  his  Men  fhall  be  See  pi.  -. 

diicharged  ol"  Toll,  OP  tljIS  !}r.  his  V  illeins,  and  nlfO  Homa2;ers,  fljall  Bi-.  Patents. 

be  quit  of  '<iroll  i  jFor  in  Ooimj  of  f )oumQe,  Ije  rapjSj  3\  become  vouc  p'  i'  •  'i,''^'' 
^aiu    14  P*  6.  12.  ■  -  -      s^c^^^P- 

that  if  fu.-h  Gi-ant  had  been  w/oie  Tmie  of  Memory,  his  Villeins,  and  vot  Honianers^  fliould  "o  quit  of 
Toll  by  fiich  general  V'\"oids.  But,  per  Cheiny  and  June,  a  Grant  by  fucli  Words  at  this  D.zy  will 
difjhai-cre  Villeins  and  Homawers. 

In  Q^io  Warranto.  The  K'ing  granted  to  W.  N.  thxt  he  and  his  Alen  poitld  be  quit  of  Pont.rire  ;  Th!s 
extends  only  to  hh  P'tlleins,  and  not  to  others.     Br.  Patents,  pi.  105.  cues  It.  Kott.  tempore^  £.  -. 

6,  Jf   tlje  ifting  grants  to  anOttjer  Bona  &  Catalla  felonum  &  Br.  Patents. 
fugitivorum  de  homii.ibus  l'uis»     CljlS  CrtCntJjS  UOt  tO  tJjC  y?OOBS?  OfP'^'^-  '•""" 

Homagers;  iiut Oiiip to  Villeins,  uuiefj)  It  Ijao  been  ancicntlp ufto  to 
j.ctenti  to  po^naoiian   40^11'.  pL  2  u   aQjuoKeti* 

1,  2il  t\)Z  UUlg  grants  Conulance  tO  an0tl)fc  of  Aaions  concerning  See   pi.  ,-. 

him   &   honunes  luos  ^  CljlS  fljail  CjCtfUD  tO  IJIS  Villeins,  flnQ  nOt  tO  r'-  ^""i"- 

ijlgj  Homagers.     ^Hb.  iz2iiX\  ^l  55*  S/cZ 

Bur,   per 
,  Shard,  it  extends  to  tho  e  who  become  their  Men  in  doing  Homage;  Quxre,  OFtho'e  wlio  do  Fealty  ? 
But   Parning  was   mcely  contra;    and  it  was  laid,  tliat    ia    Protection  pro   (e   &   HominiSus,  neither 
Villeins  noi-  Franlaenants  lliall  be  aided;  therefore  it  fecms  there,  that  it  extends  only  to  hhtamiiiaf 
Servtints.  Ibid. 


(E.  c.)     Grant   of   the  Kino:  by  o;eneral  Words.         (ic.b^cL.b) 

^  (Zb}(A,c) 

CR  c.)cC.c) 
i^Tif  tlje  i^mn;  grantjS  certain  Liberties  to  31-  ^*   and   iUtCr  aliacD.  c) 

Jl    grants  tU  .JtlU  omnia  Bona  &  Catalla  Felonum  de  fe  tUItijlU  tiJC  ,   The  King 
^ttl  Of  ©.     '(^\)l$  fljail  pals  Obligatio.ns,  Specialties,  and  Debts  due  Stcrftr" 
to  the  Felon  ;  fot  tIjO'  if  tijC  l^jnff  gCaUt  in  other  Caies  omnia  Bona  granted  to 
8c  Catalla  fua,  where  it  is  not  granted  as   a  Liberty,  ^pCCialtte0    aiVO  ^5'>=  Mwor 

jDebtiS  fijail  not  pafis  Uiitljoiit  fptual  UBotri?,  bnnn  Cljofcd  en  ^"^  °^ 
<3.ction ;  vet  iu  tafc  of  fuel)  a  vSraiit  of  a  Libert)?,  it  fljai!  pafs  fttcf)  ToTS-T 
Debtsj  ano  ^jpetiulttc^ ;  becaufc  ail  liberties  of  fuclj  iSature  ijaise  Ecm  dr  "cr.^ 
uiicn  to  pafs  dp  fticlj  UDoros  m  ail  ages  before  s  Jf  or  aii  ancient  Li-  t.^iu  fcic>:um 


ttjc atarr-Cljambct betvueen  tiic 'Bifiiop QUinnon tlje^.Imoncr  of tbc became feio 


l%tng,  auu  one  //  ^^ycu^p  tije  leffce  of  tbe  dty  of  undo;,^  to  Uibont  'i^l? '  \  ^"^ 
fuel)  (^vaut  U3as  maUe  bp  €>  6,  of  oJootia  ano  Cljatteis'  Jf dontnn  tie  ttc  Mavor 
fe  in  S^oiitbu^avt^,  to  tije  SintJges  of  Id*  R.   ^il  tije  faio  luo^xefi  upon  'the 
feeniet)  to  incissie,  tljat  it  fliall  pafs  ^uecialticgi  anD  Cbofcs  en  Cicticiii  ''o"^,  it  was 
but  tbep  ccrtificB  for  tIjC  c^encralitp  of  tt)c  Cafe,  tijat  it  UU10  roiroc^  dcmurr-d, 
wient  to  be  tvieii  at  tljc  Couuuon  laiu  upon  a  %\\\t  tbere*  [DebV)'  * 

would  not 
pafs  by  a  Grant  of  (omnia  Bona  &  Catalla  felonum  de  fe)  upon  which  the  Plaintiff  obtained  Leave  to 
dircontiinic.     Sid   i.].;.  Pafch.  14.  Car.  2.    Southampton  (Mayor)  v.  Richards   —  iz  Kep.  i,  2.  in  ca'c 
of  Ford  V  Sheldon.    S.  P. 

The  Lord  N  has  a  grant  of  Boi^.x  i-f  Cuall.i  fchntim  et  furitivonim  tl-hhin  tJ.e  fjle  of  Ely.  J.  S.  d^'ellhKr 
Kithin  tie  /jhnd,  a-jis  attainted  of  Felony.  // '  R.  <VJas  iiidehted  to  f.  S.  hy  Ohii^atiov  condition'd 
to  pay  Mor.cy  at  a  Manor  of  the  Li/rd  S\  ci/'o  alfo  had  Bona  Felovum  Qfc.  •xitliii  lis  M.-.tior.  The  QiiclHon 
was,  which  Lord  fliould  have'ttte  Money.  All  the  B.irons  of  the  Excequcr  were  clear  of  0;-inion,  th;>c 
the  Lord  S.  could  not  ha\-c  it ;    for  the  Place  of  Payment  nihil  Operatiir,  but  the  Obligation  is  the  Siib- 

ftan^  e 


I  36  Prerogative  of  the  King. 

iLince  ulikli  came  to  the  Lurd  N.  within  the  l(le.  But  being  infiftcd  by  Popham,  the  Queen's  Attor- 
ney, ih.it  the  Money  belongM  to  the  C^ueen,  and  that  the  Loi-d  N.  could  not  have  it;  tor  that  by  the 
oeneral  Words  of  Bona  &  Cutalla  telonum  Thhigs  hi  .-fciioti  do  7:ci  p.'/s,  hut  h  e^jn-efs  M'crdi  they  w  ill 
paft  ;  othevttilc,  not  ;  And  therefore  Day  was  given  to  the  Lord  N.  to  fhew  hi.  Letters  Pateiits.  2  Le. 
^6    pi. 'Ji.  Tnn.  2y  JEli?..     In  the  Exchequer.     Lord  of  Northampton  v.  Lord  St.  John. —  S.  C.  cited 

fcid.   142  „  ,       .    .     . 

The  Queen  granted  to  one  Catalla  Utlagatorum  ScFelonum  de  le,  within  lucli  a  Precinft;  a  Debt  -vj.u 
due  to  ihf  i^ieeii  Ly  a  Feb  tie  fe  within  tlie  Precinct.  Rclblvcd,  the  Queen  fliall  have  the  Goods  to  (luif- 
fy  her  Debt.     4  Le.  6.  i6  iiliz.  In  Scacc.     Anon. 

Br.  Patents,  2»  JftljC  lAUtn;  tlC  Teifed  of  a  M^ard,  and  grants  the  Land  and  Bodv, 
P'-  4  '^'t"    with  all  Reverhons  and  Remainders  tO  ailOtljCr,  ailU   ilftCr  other  Land 

bin-ton''     dcicends  to  tljc  jBatti  uiitljiti  ^gc,  tijc  PiUcntce  iljai!  yai^c  tljis  Intia 
°    ■      nlfo.  9  !)♦  6. 27.  ii.   £iii*re  tlj!9 ;  for  tfjc  l^ing  connnueg  aunroirtn, 
an5  it  i.3  to  te  intciiaro  tljntijcuins  mmuQ  facCapitclanii* 

Br.  Patents  ?♦  ^I'tijC  idiati"  rclcafes  to  an  Abbot  QC  PriOt  of  his  Foundation  all 
pi.  2-.  cites  Services,  and  that  he  lliall  be  as  tree  in  the  Church  as  the  Kinji  in  his 
^  C.  Crown  ;  CijO'  tijiS  Wasi  aU  ancient  <©rant,  PCt  tijC  Corody  and>enlion 

due  to  the  Ring  ai'C  not  mfcijacgeo  tjp  tijafc  General  n^3cO0,  14  i), 
Br.  Patents,     4,  jf  tlj^  laing  stants  Land  to  anotljenn  ifce,  ano  grants  fuc^ 

pi.  27.  cites  jjjgj.^  thathelhall  be  as  tree  in  this  Land  as  the  Ring  in  his  Crown, 
P  S"  P"       Wt  tljOlC  ijencral  JtBOrtiei  no  not  DifCljarirC  Fines  tor  Alienation,  U)!)iCij 

arc  mic  ti?  prcropti\3C,  if  i)c  aiicn^s  luitijout  Licence^    n^tx  6, 

12*   ll. 

Rr. Garde,  5,  JJBIjai  King  E.  3.  JJtaittetJ  tO  ij{<)  gtOn  tIjC  Dutchy  of  Corn\val, 
pt.  05.  cites  Qn,^  omnibus  ad  earn  fpectantibus  limi liter  cumVV'ardis,  Alaritagiis  &c. 
•p  ^  "     P'^dc  limiliter  alibi  extra  Comitat.  prxdiftum  Non  Obltaiite  Prserogaciva 

^o'che'ss  Regis,  ann  after  a  S^an  icijo  Ijciti  of  djc  Dude  in  Cijicf  by  %cmt€ 
c-Br.  Pre-  Of  Cijt^jalvp  iSDeaD,  ann  ])i0  lom  iss  m  il^arD  to  tije  k\m  tor  caufc 

vrgative,  pi  cf  Ward  tor  other  Land;  'dl/tjcDUfeClljal!  nCt  tjalJC  tOe  Wardfhip  Of 
M.citesS.C.  {jjmijp  (jjgcg  ©CneraH©Ctl!0 i  JfOr  tlje  Ring  Ihallnot  palsfuch  Things 
as  he  has  in  Right  of  the  Crown  without  exprefs  *  Mention  of  his 
Right.  43  Ail.^i^.  SDniCgetl*  D.  9*  ip«  CU  268.  iS* 
The  King  5^  Exitus,  Fines  and  Amerciaments  of  B.  vel  Coram  ipib  Rege  in  Can- 
granted  to  cellaria  vel  coram  Thefaurario  &  Baronibus  Scaccarii  vel  Coram  JulH- 
of£./">/L;ciar.  ad  Paccm  vel  Itinerant,  vel  ad  Gaolamdeliberandam  vel  Julticia- 
deB  &--C4-  riis  ForertsE  vel  Coram  Senefchallo  &  Marifchallo   Hoipitii  Regis  vel 

tv,<ma,m  cierici  Mercator.  atcneucr  allouieti  to  anp  In  ti)c  €.i:ci3etjucr  imxi  a 
p^rthemth  ^jj^j^j.  Qj'  |.jjp  £^{j^g  ttJitljout  fpecial  JlBorojj,  or otfjeriuife  ailouien  m  a 
&c  w""   Clito  t^arranto.    D*  loCK -69*  is* 

cum  onniibiis       7.  Exitus  tenent.  vel  Fines  and  Amercements  of  Conftables  or  other 

ex:t:bus,fi?:i-  officeis  of  the  King  are  not  aiioiBeuIn  tlje  €jcljcquer  upon  a  c3rant  of 

fo/j,.^«;em^- jjj0  jU^jj^g.  ji]j|;{jo(i|;  ^JBOtDlS  Licet  tenent.  Vicecom.  Coronator.  Ballivi 
™if   Officiani  feu  Miniltri  Regis  funt,  MCaUfC  tljCP  atC  tOPaU     D.  lo  €U 

Genthwute-    269*    1 8*      2  j^,  7»  ?♦ 
neniium,  re- 

fdeiitium,  &>  mn  refidentium,  JdvoeatioJihus,  Wardis  &  Reliniis,  U'reckis  M.nis  &>  f.Uis  de  &■  wf.'a.  In- 
iirlam  trsdiBam  in  aiiihttfcunqtie  Curtis  vofiris  emergentibiu,  and  the  Sherift  demanded  Allowance  upon  liis 
Account  of  certain  Ijfuiis  forfeited  in  Banco  at  Wejlniinjier,  and  the  bed  Opinion  there  was.  That  he  flial! 
not  have  Allowance  of  them,  nor  the  Dutchefs  ftiall  not  have  them;  For  thofe  Word,';,  Emcrgcntihrs 
infra  hfulam,  fliall  be  intended  offuch  Fines  8cc.  which  are  forfeited  in  any  Court  in  the  fjl-,  but  no: 
of  Fines  and  Amerciaments  forfeited  at  Weftminfter  or  elfewhere  Extra  the  Ifle  ;  But  the  Cafe  is   not 

ruled.  Br  Patents,  pi.  4.  cites  9  H.  6.  27. ■  S  C.  cited  Arg.  PI.  C.  i;.  where  it   is  fldd.  That  it 

is  held,  that  the  Grant  was  good. 

8.   JftljC  Mm,  has  two  Titles  to  a  Church,  fCJltCCt,  t!)C  One  as  Patro-i 
of  the  Fee,  auS  tl)C  OtljCt  by  Prerogative  by  Laplc   the  Church  bein^ 

void ;  <2!:i)o'  tlje  mmg  0rant0  tlje  Jfee  of  tljeatiiioiuran  iiutOont  cj^pitls 

<giiant    of  this  prefent  Avoidance  tO  ptCfent  tlje  ©UailtCC  ftilU  UOt 

iymt  tW  prefentment.    D.  is  ei,  h^.  i^.    w  p.  6,   9  €,  ^. 

9.  3f 


"II  •      '* 

Prerogative  of  the  King.  i  ^^^-j 

9»  It"  tt)£  t'lUilJ' 10  Idled  in   Fee   ol   an    Advowion,  ailD  t(JC  Church  Jenk.  24;. 
voids,  anti  rit"tlTti!iirO0  he  granrs   the  Advowfon   without  ipeakir.2;  ot"P'-  "^-  ^'."'"" 
the  Avoidance,  i\)Z  ©railtCC  fijilU  \)^\S%  It.  D»  9*  lo*  €1.  269,    Jf/ ji^*  ".9.  Mi,!!,!*' 
■<^.  n»     18  (£*  3»  22*     9  (£;»   3,   26,     3  D,  7»  K,   io»  CitCtl  \X\.  D.  lo  29H!i,..coiw 

€1.  More.  J)obart'0  Ecportsi  189.  contra  D*  13  €L  300. 36.  t«,  Ti.at 

UiljCre  tl)C  (Jprailt  10  ol'  the  Manor    with   the  Advovvlbn  thereto  be-  r-r^^'T^ 

,    ■"  -"  Icilcd  or  u 

l''"S'ng-  •  Manor,  w 

which  an 
Advowfon  was  appetiflanr,  granted  the  Manor  una  cum  Advocatione,    the  Church   being  void,  yet  tlie 

|udt;mcnt  was.  Tint  tlie  Qiictn  fliould  pvefent  Hac   vice.  Sir  Thomas  Gorge's  Cafe. 5  Le.  196.  S. 

C.   by   Kame  of  Sir  Thomas  Gorge  v.  Dakon. S.  C.  cited    accordingly.   D.  50J.  pi.  56.  i'.i 


Mdrg 


10.  E.G.  hcld-x  Manor  of  the  King,  and  R.  W.   held  another  Manor  ^^^^'^•-'^':'''^'^^ 


vocattonibus  eidem  pertinentibns.  Adjudged,  That  theAdvowlon  did  nocpafs  viz.  D.  44. 
with  that  Manor,  butnas  ftill  appendant  to  the  other.  Nelf.  Abr.  904.  pi.  ^,  P'"  ?~; 
5.  cites  Mich.  30  H.  8.  Dyer  44,  i^  a'oifcr^- 

ence  where 
the  King  comes  to  an  F.fchent  as  Lord,  arid  ufiere  he  cofiies  to  it  as  K'ing  of  England  ;  For  v/here 
he  comes  to  it  as  Lord  he  fliall  not  be  i:i  other  Courfe  than  as  (Common  J'^ord,  hut  where  as  Kirig  ir 
is  otherw,ife,  and  then  cites  the  principal  Cafe  as  the  Cafe  of  6  E.  5.^2.  thus,  viz..  That  B.  G.  holds 
a  Maiior  ol  the  King  to  which  .1  Royal  Fravchife  v. as  appendant,  viz.  to  haie  Efcheats  of  all  ^re.'fois  of 
fitch  u/f-o  hold  of  this  Alniior,  and  that  R.  VV.  held  another  Manor  of  the  lame  Manor  to  which  the 
Advowlbn  is  appendant,  and  that  R.  W.  was  attainted  of  Treafon,  hy  wliich  the  A/>.'(^/e//cf/,  nndthzn 
granted  the  Manor  hcfd  of  hi;?;  una  cum  j^dvocationibiis  eidem  fertin.  Aid  by  the  Opinion  there  the  Advow- 
i'on  pafTed  not  with  this  Manor,  but  is  appendant  as  before  ;  But  it  wa^  lield,  that  the  Frar.chifc  Royal 
by  the  Efchcat  was  extindc  and  rejoined  to  the  Crown. 

11.  If  the  King  grants  OiiuiiaJarafuaReiaJicTj  or  to  be  as  free  as 
Toiigac  can  ff>sak  or  Heart  can  think^  this  ihali  not  be  taken  according 
to  the  Words,  hut  according  to  the  ancient  Allo'-joance^  \s  zo  bold  Pleas  or 
to  haveContifance  &c.  Br   Patents,  pi.  no.  cites  10  H.  7.  13. 

12.  A  Patent  inGeneralibus  without  Re/fritlion,  As  if  the  King  grants 
Oinncs  'Terras  fit  as  ^  or  Maneria  fiia^  or  re'leafes  all  Demands^  is  a  void  P;'.- 
tent.  Dolus  verfatur  in  Generalibus.  Jenk.  304.  pi.  77.  cites  2  H.  7.  11 
H.  7. 

13.  If  the  King  grants  all  his  Lands  and  Tenements  in  D.  this  is  a 
good  Grant  by  thofe  General  ^Vords.  Br.  Patents,  pi  95.  cites  30  H.  8. 

14.  King  £d\v,  6.  was  fcifed  of  the  Manors  oj  Hackney  and  Siepnej^ 
"jcithin  -which  -xas  a  great  Marjh  called  Stepney  Marfh,  Parcel  of 
the  Manor  of  Stepney^  which  he  had  /;;  Exchange  with  the  Bilhop  of 
London,  and  aifo  of  20  j^cres  of  Land  called  Stepney- Marjh ^  which  he 
had  as  Parcel  of  the  Poffelfions  oj  the  late  Priory  of  Grace ^  and  granted  to 
the  Lord  W^enrworth  and  his  Heirs  the  aforesaid  Manors,  Ncc-non  Ma~ 
rifcos  fuos  de  Stepney  pr^c'd.  Nec-non  omnia  terras  &  Tenement  a  £5"  Adrrifcos 
diffis  Maneriis  ant  ceteris  Pr^emijjis  pertinen.  &c.  The  Quellion  was. 
If  the  20  Acres  pafs  in  the  General  Words  of  tlie  firll  Nec-non  ;•  Of 
if  the  Words  in  the  2d.  Nec-non  ('diftis  Maneriis  pertinent.)  retrains 
the  Generality  of  the  firll  Words?  Gawdv,  Clench,  and  Wray conceiv- 
ed, that  the  20  Acres  did  pais  ■■,  And  Wray  laid.  That  againft  exprefs 
Words  no  Favour  will  be  given  to  the  King.  And  it  is  faid,  Note, 
that  the  Marlhcs  pertaining  to  the  Manor  are  in  the  third  Claufe,  Ergo 
the  Marfli  in  the  lecond  Claufe  ihall  be  intended  a  Marfh  in  Grofs,  or 
othervvife  it  fhould  be  idl».  And  afterwards  Judgment  was  given  a- 
gainll  the  Queen.  Le.  120.  pi.  162.  Trin.  3  Eliz.  B.  R.  the  C^ieeu  v. 
Lewis  and  Green. 

15.  A.  Wmg  feifed  of  the  Mcinr^r  of  ^.  afid  alfo  of  the  Manor  of  6'. 
which  was  held  of  the  Manor  of  J^.  was  attaint  ad  of  Felony.     ,<^.'!c:n  Mary 

g^  M  m  g^-i'i 


■> 


I '^8 


Prerogative  of  the  King. 


gave  the  ManoY  'of  ^.  to  Sir  W.  M.  cam  ommbtis  fids  Jiirihtis  S  Parcel- 
Its;  Adjudged,  That  the  Manor  ot"  C.  palled  by  this  Grant,  becaufe  it 
was  now  Patcel  of  the  Manor  o^  Q^  Cited  by  Pcriain  J.  i  Lev.  26.  pi. 
33.  Pafch.  27  Eliz..  C.  B.  in  Caie  ofMarili  and  Smith,  as  Sir  \Valter 
Mildvvay's  Calc. 


(E.  c.  2)    Grant.     Pais    what.     By  the  Words  Conjlitui- 
jnusy  ComcJJimus  '^c. 

Br.  Grant9,  i.  tN  Affife,  upon  a  Grant  of  the  Office  of^  Clerk  of  the  Crown  ia  Chancery^ 
pi.  62.  cites  1  it:  need  not  be  Ihewn  it  there  was  luch  Oilice  at  the  time  Of  the 
^•^'  Grant  or   not;    For  per  Gatesby,  the  King  by  this  Word  ConccOlinus 

may  grant  an  Office  which  had  Elie  before,  but  by  thefe  \\  ords  Conjiitn- 
iums  &  Ordmav/fims  he  may  make  an  OlHce  and  Officer  which  had  not 
Elie  before,  and  the  Office  oj  one  of  the  Clerks  of  the  Crown  in  Chancery 
was  granted  to  tivo,  where,  per  Catesby,  two  cannot  have  the  Office  of 
one  Clerk  i  Contra  of  Grant  of  the  Office  of  Clerk  of  the  Crown  to  two^  and 
yet  non  allocatur,  but  the  Grant  is  good.  Br.  Patents,  pi.  21.  cites  9  E. 
4.    II. 

2  The  King  having  granted  to  Hugh  Moyle  the  Office  of  Broker  of 
London^  by  the  Word  Conceffimiis  to  the  H.  Ai.  Office  of  Erocar.  Sic. 
And  by  all  the  Serjeants  the  Patent  is  \  oid,  becaufe  it  wants  Confiitni- 
miis;  \i^czVi^QX^^YJ\xi'^  never  had  granted  fiich  Office  there  before.  And  per 
Brian  the  Patent  is  voidj  For  this  Office  does  not  belong  to  the  King. 
By  which  he  granted  another  Patent,  which  had  Conflitninius  f3  Ordma- 
miis  &c.  And  yet  held  void,  becaufe  there  was  never  fuch  an  OiHce  &c. 
But  the  Mayor  admitted  him.  Br.  Patents,  pi.  73.  cites  21  E.  4.  76. 


(E.  c."  3)  V>YthQWoxds*ExCcTtaScie}2tia,^UzioMot\i^\: 

*ExcertaSci-'^-  TF  the  King  grants  bv  thefe  W'ords,  ex  certa  Scientia  S  mero  Motu, 
entiahnports,  fuch  Patents  ihall  be  taken  morc  Itrong  againlt  the  King.   By  fome. 

That  the       g^  Patents,  pi.  80.  cites  9  H.  7.  2. 

^"^■Ido-e  ^-  -^/'^  vvhere  the  King  r£-c;Yci  a  former  Grant,  and  confirms  it  ex  certs 
of  the  ThTng  Scientia  &  Mero  Motu,  he  Ihall  ht  Efiopped  to  deny  the  Recital ;  per 
■which  he      Hulley  i    But  Brooke  fays  Qusere.  Ibid. 

grants;  and 

tlieveloi-e  fuc^  Charter  is  called  Affertive  and  not  Suggeftive,  as  is  faid  in  2  E.  9  .  7 .  but  _  this  is  to  be 
intended  of  Verity,  which  is  the  proper  Objeft  of  Science,  and  not  of  Falfity,  which  is  aNci-Ens, 
and  thereof  the  King  cannot  have  Knowledge ;  But  in  fuch  Cafe  notwithftanding  thote  Words 
the  Kir;<^  is  utterl  y  deceived  in  l.is  Grant,  and  therefore  they  fhall  not  give  the  Patentee  any  Advan- 

f.o-e.  ic^Reo.112.  b.  Refolved  Mich.  10.  Jac.  C.  B.  Legat'sCafe. S.  P.  Arg.  ;  Le.  249,  in  the 

CiTtfofH-^rris  V.  Win"^ S.P.Pl.C.  502.  b.  Mich.iSSc  ipEliz.  in  the  Csfe  of  Grcr.don  v.  the 

Bifhop  of  Lincoln. 

+  Ex  Mero  Motu  properly  imfcrts  the  Honour  and  Bounty  of  the  King,  who  rewards  the  Patentee  for 
the  Merit  of  his  Service  of  the  mere  Motion  of  the  King  himfelf,  without  any  Suit  of  tlie  Party  ;  and 
it  was  laid,  Th.it  thofe  Words  were  added  after  the  Statute  of  4/^-4  '^'^P-  4  by  whirh  the  Kin^  decl.trcd, 
that  he  c.\-ifld  abflain  from  granting  any  Part  of  his  Revenues,  Lands  or  IF'nrdjhips,  but  to  fuch  as  defer-ji 
them  and  thofe  ivho  fue  foi-^'a?:)  fuch  Thing  fiall  he  pKviJhcd,  and  fliall  not  have  the  Thing  for  which  the  S'uit 
was  made  ;  After  which  Act,  to  the  End  that  it  fhould   not  appear,  that    any  Suit    was  made,   thofe 

Words  were  added,  viz.  ex  Mero  Motu.  10  Rep.  112. b.  115.  a.  inLegat's  Cafe. S.  P.  Arg.  3  Le. 

249.  in  the  Cafe  of  Harris  v.  Wing. 

3.  If  the  King  has  a  Mine  Royal   in  the  Land  of  J.  S.  and    he  E%- 
<rraia  fpeciali,  certa  Scientia  &  Mero  Motu  fuis,  grants  to  a  Stranger 
"^  ■  all 


^„^— ^^^Mw^— — ■■■■■■■■      I  ■         ■  I- ■  MMmmitm,Mm^mm^mam,mmammammmmmmammmmii^ttmmmammmmm^Mt^»^^^m-^far' 

Prerogative  of  the  King.  139 

till  Mines ^  which  he  has  ! /I  the  Land  of  f.  S.  by  this  Grant  the  Mine 
Royal  lluill  pals  J  For  othervvife  the  VV^ords  ihali  be  void;  For  he  can- 
not'have  balcMines  in  another's  Soil,  and  therefore  when  he  i]iys  Es certa 
Sdc/ithr,  and  recites.  That  it  is  in  the  Soil  of  another,  he  cannot  be  taken 
Wifconuiant  of  the  Thing,  and  therefore  it  I'hall  pafs.  Per  Dyer  Ch.  J.  of 
C.  B.  PI.  C.  337.  Hill.  9  Fliz.  in  the  Cafe  of  Mines. 

4.  The  Words  yiii Hi/niikm  Petit ioncni  diminilh  the  Force  ol  the  Words 
de  Gratia  ipecialia,  ac  Ex  certa  Scientia  etMeroMotu  ^  For  the  Charter 
flwU  not  be  taken  to  proceed  from  the  Grace  of  the  King  merely,  and  lb 
to  betaken  more  ftrong  againlt  the  King,  and  in  Favour  ot  the  Patentee, 
unlefs  it  is  merely  ot  the  Motion  ol  the  King,  and  without  Suit  of  the 
Party.     PerCatlinCh.  J.  PI.  C.  337.  in  the  Caie  of  Alines. 

5.  .^ncoi  Mary  being  feifed  in  Fee,  in  the  Kight  of  her  Crown,  of  a  I^id.  Marg. 
Manor,  to  which  an  Advovvfon  was  appendant  j    and  the  Church  bein^^^:^''^]^}-}^'^}^, 
then  void^  flie,  in  the  Time  of  the  Vacancy,  eyicext-xSclentia.  granted  the  ^\^.^^\\^^  '^ '"' 
Manor  &  omnes  Jldvocationes  eidem  Manerio  pertinent,   live  incurrent.  in  Gr.mtccfliall 
tarn  amplis  modo  &  forma  prout&c.  but  no  Mention  was  made  o/'"  /^fec  not  have  the 
pre/ent  Avuidance^which  was  at  that  very  Time  when  the  Grant  was  made;  ^^^  P>'e'cnt 
Jt  was  adjudged,    that  the  next  Preicntation   did  not  pais   by  fuch   a  c„„t,.,;  ""' 
Grant.     Dver  300.  pi.  36.  Pafch.    13.  Eliz.  The  Cafe  of  the  Manor  of  F.N.  B.  55. 
Bedminftef.  &18E  5. 22. 

9  E-  ;•  22. 
Dier.  269.  And  this  Judgment  is  good  Law,  per  Cur.  Mich.  29  Sc  qo.  Eliz.  C.  B.  &  Dier.  fol   -^3  [and 
■wliere]  A   had  a  Mai'.oi- tu  which  Advovvfon  is  appendant,   wliich  is  void,    he  grants  tlie   Alaiior   Una 
cum  Advoca'.ioneto  B.  In  this  Cafe  B.  ITiall  not  prefent  Hac  Vice.   Pafch.  zS  EHi.  &)ir  2r!)0.  ©Omt-'^f 
Caft",  inaCaieofthe  King,  And  Tnn.  i  5  Jac.  sj^liirljCOmb'S  (iLSfe  being  the  Cafe  of  Common  Penbn. 

6.  Grant  to  J.  H.  Son  of  1".  H.  Ex  certa  Scientia,  et  MeroMotu.  J.  H.  *>''•  P.  Per 
■was  a  Bajlard.  TheGrant  f?all  not  be  taken  in  fuch  Plight  as  the  Grant  of  ^^'' j^^^l'- 

a  Common  Perfon,   void  for  Uncertainty.,  becaufe  the  King  takes  notice  of  ^°°,^g  ^^^  ' 
the  Perfon  of  what  Degree  he  is  ;  And  in  the  King's  Cafe  where  he  takes  certainty  of 
Knowledge  by  the  Words  Ex  certa  Scientia,  there  all  Matter  of  *  C/ncer-  thcVill, 
tainty  Jhall  be  avoided.,  and  made  good  ;  but  net  Matter  ■-^h:ch  is  not  true  ^  or  when  the 
And  where  a  Thing  may  be  taken  Pivo  Ways,  there  without  the  VVords  Ex  ciijyg"g„j^^ 
certa  Scientia  &c.  the  belt  Ihall  be  taken  tor  the  King,   and  the  ftrongelt  Meanings, 
againft  the  Patentee  per  Man  wood  ;  But  per  Dyer  by  the  Words  Ex  cerca  and  is  E.\-e- 
Scientia,  the  Uncertainty  is  fived,  and  ihall  be  taken  itrong  for  the  Pa-  cutory. 
tentee  ;  And  if  it  can  be  any  ways  taken  for  him,  the  Patent  Ihall  not  be  ^7'^  'vvordt 
void;  And  here  the  Word  (Son)  may  be  taken  either  for  a  Bafe,  or   a  {^.x  Mei-o  "" 
True  Son.     But  where  the  King  in  his  Grant  f  recites  a  Thing  which  is  iMotu,  ec 
falfe,  that  fliall  not  make  the  Patent  good,  altho'  the  Words  be  Ex  certa  <^erta  Sci- 
Scientia&  Mero  Motu.   3  Le.  49.  pi.  69.   Mich.  15  Eliz.  in  C.  B.  Anon»    ^"^ich  th^e 

King  fays,  (I  grant  it  without  the  Suit  of  or  Information  of  any  Perfon,  but  of  my  own  Knowledge,) 
aid  all  Uncertainties;  zsViht^r,-,r.is  Lands 'xhkh  Letovged  to  tl:e  Lite  D/JTohed  Monaftery  ej  Chrifi-Chiinh 
when  in  FaiSt  th^rc  weve  feteml  JJoihiferies  pj  Chrijl-Clwch,  this  is  hclp'd;  But  fa;h  Pitent  fliall 
never  aid  a  Falfity  ;  As  if  the  King  grants  Lr.iids  lil.i,  h  came  to  hira  by  the  Diifclutian  of  a  Monafi:cry, 
v;hc7i'n-\FiL&.thcy  came  Xo\-i\m  by  the  Attainder  of  CdvAinaW^ol^nf .  Per.  Cur.  iav.  57,  5S.  pi.  '^6.  Mich. 
24.  &  25  Eli7,  in  Scacc.    Attornev-General  v  Mav. 

■fS.P.  per  Holt, Ch.  J.  2Salk.'56i-  Hill-9W.'3.  in  the  Cafe  of  the  Kingv.  the  Bifnop  of  Cheftcr. 

7.  By  Jttaindir  of  one  Diffetfed^  a  Right  to  certain  Land  became  for-  S-C.  cited 
feited  to  the  G)^neen^  who.  afcr  the  Death  of  the  JDifefce,  by  Letters  Pa-  t^gQ^c^^f  " 
tents  DeSpeciiili  Gratia,  Ex  certa  Scientia,  &  Mero  Motu,  granted  all  LordStaa- 
the  Lands,  Tenements,  Rights,  and  H<.reditaments,ivhichjbe  had  by  Jt-  hope  v  Bi- 
tainder  of  the  Diiieilee;  But  it  was  adjudged,   that  fuch  a  Makcd  Right  ftopof  Lin-, 
fl^.all  not  pais  by  fuch  general  Words  ot  the  King  ;  For  that  (if  it  can  be  '^°'"- 
granted  at  all)  it  mult  be  with  a  fpecial  Pvccital  by  exprefs  and  fpecial 

Words.    3  Rep.  4.  b.  cited,  and  atfirmcd  by  the  Court  to  be  good  Law, 
by  the  Name. of  Cromer's  Cafe. 

Q.  Es 


i2).o  Prerogative  of  the  King. 

S.  p.  Arg.3.      p_  /.'x  Gratia  fun   Special!,   is  in   refpeft  of  the  Grace  and    Favour 
Lc.249  m    Yvhich  the  Kine  has  conceived  in  rcfpect  of  the  Patentee.    10  Rep.  115. 
Harmv.       a.  in  LegatsC.ile. 
Wing. 


(F.  c.)  Grants  of  the  King.     In  what  Cafes  they  fhall  be 
'void  for  U?icertahity. 

cro.j  4^1  n  TiT  tijerc  arc  ttoa  'Brigs  in  :^cri^n)irc,  fcilicet,  t^iiloiuljn'g  ano 
s  c.  bythe      1  oBortouibno;,  anti  tije  i.\mg  srantgi  to  a  S?9an,  That  he  ihaii 

^'•™'^j"^  V  '^^'^^  ^°  '""'^^  ^°'-  ^'^  '^'"y  ^^'"^^  which  Ihall  go  over  W  illowbrig  for  Toll, 
I  aie^t°Ad-  iis  has  ulualiv  been  taken  for  every  Bealt  which  ihould  go  there  et  alibi 
judged.That  infra  RegnumAnglicCi  CbO' I)C  atlCr0,  t!«t  fO  lllUClj  III  Ceitaill  \M 

the  Giant  jj^eu  paiD  at '^orroiulirio;  aforcfaio,  anQ  fa  nuiclj  Ijc  cla!m0  to  Ijatsc, 
IS  uncer-     „^j.  jj.,^^  ^^^^.^^  j^  ^qjq  tot  tljE  uiiccttamti'  of  tljc  i^ornsi  (tt  aiibi 

voiVTnd      inlra  Rtgnum  Angli.t)  JfOC  tijtS  IjaiS  HOt  mO  CCttailltJ?  ;    j^Ot   OHC 

the  a'vening  \mtz  uiav  U  2  d.  auH  at  anati)cr  place  mote  or  Ufe»  p.  is^  3!a* 

Payment  at     '23^  ^^   Llghtfoct  and  Zo^V/r.    ^JlJllbeO* 

bt-i"-(;,  without  averring  Payment  at  Willow-brigg  is  therefore  ill;  And  for  that  Keafon  it  wasaward- 
cd  that  he  fliould  anfwer. 

2.  If  the  YJuig  grants  to  me  that  I  pall  net  he  Sberiff\  this  is  not  good 

for  the  Uncertainty,  becaufe  he  does  not  fay  of  ivhat  County  i  But  contra, 

if  he  fays  that  I  liiall  not  be  Sheriffs/'  any  County  in  England.   Note  the 

Diverlitv.  Br  Patents,  pi.  92.  cites  2  R.  3.  7.  Per  Huliey. 

Soifthe  3-  The  Queen /«/f(^  of  a  Great  IFaJle,  called  Ruddlefdown,   in   the 

Kinghasiro  Parilh  ot  Chipnam,  granted  a  AMcty  of  a  lard  Land  in  the  faid  iVaJla  to 

JcresofLfl.iid  f].,g  Mayor  and  Bur^eifes  of  Chipnam,  "without   any  CertHinty,  Name,  or 

'",^;,^^^J^%  Defcriptton^   and  after  granted  the  Vv  alt  to  H.    Adjudged,    That  the 

'toJclcsVthe  Grant  was  void  for  the  Uncertainty  of  the  Thing  granted,  it  being  in 

Lands  mU.  the  Cafe  of  the  King,  though  othervvife  it  would  be  in  the  Caie  of  a 

•xif'txut  ,ivy    Common  Perfon,  where  the  Grantee  might  by  Election  reduce  it  to  a 

dejn-ibing^^^    Certainty  ;  And  the  Court  held  farther,  That  the  Grant  was  void,  not 

Revt^Oc'cu-   only  againll  the  Queen  herfelt^  but  alfo  againft  H.  her  Patentee.  Le.  30. 

faticnor         pi.  367  Trin.  27  Eliz.  B.  R.  Sir  Walter  Hungerford's  Cafe. 


Name  Fyc 

T 

St 


jya»ie  tj'c 

This  Grant  is  void,  and  the  Patentee  (hall  not  have  his   Eleftion  in  the  King's  Cafe.   12  Rep."  S6    in 

Stockdale's  Cafe. 


ei 


4.  If  the  King  grants  a  Rent  or  Land  without  Limitatiort-  of  any  Effate, 

the  Grant  is  rnerelyvoid  for  the  Uncertainty,  and  t'>  e  Grantee  fhall  not  be 

Tenant  at  Will  to  the  King,  as  it  is  ruled  in  SlltO'l  liDOOD's  Cafe.    And 

the  Reafon  is,  Becaufe  the   Grant  oi  the  King  Ih.ll  be  taken  molt 

ftrongfor  his  Benefit  and  A.dvantage.  Refolved.  Dav.Rep.  45.  a.  Pafch. 

5  Jac.  B.  R.  in  Ireland,  in  the  Cafe  of  the  Dean  and  Chapter  of  Femes. 

Bui  i/'thc  5.   If  the  thing  granted  be  of  fucha  Nature  that  di-verje  E./fatcs  viay  le 

r^'^n^Z^^^^- limited  thereof ;  As  of  Land,  Seignory,  Rent  &c.    If  the  King,  in  his 

whidi divers  Grant  of  fuch  a  Thing  does  not  limit" any  certain  Eitate  to  the  Grantee, 

Eftates  can't  nothing  Ihall  pafs  by  this  Grant,  but  it  Ihall    be  adjudged  merely  void 

be  limited,    tor  the  Uncertainty.     Refolved.  Dav.  Rep.  45.  a.  in  Cafe  of  the  Dean 

hmcr.eEfi^te  ^^d  Chiiptcr  of  Femes. 

mly  is  incident 

thereto,  which  the  Law  limits  v.  ithout  any  Lirriitation  made  by  the  Grantor,  of  fucli  Thing  the  Grant 
of  the  King  cannot  be  doubtful  or  uncertain,  nor  can  the  Kirg  be  deceived  nor  can  he  err  ;  For  Error 
eft  in  Bivio,  and  no  Error  cai  be  where  there  isonly  one  Way  to  be  taken.  Refolv'd.  Dav.  Key.  45  h. 
iu  the  Cafe  of  the  De.TO  and  Chapter  of  Femes. 

(>.  Qr- 


Prerogative  of  the  King.  141 

6.  Certainty  is  reqiiilite  in  the  Grants  of  the  King.  Per  Fleming 
Ch.  |.  Built.  lo  Hill.  7  Jac.  in  the  Cafe  of  the  Earl  of  Shrewsbury  v. 
Earl  of  Rutland. 

7.  King  James  granted  to  W.  vS.  fo  many  Debts,  Duties,  Arrearages 
and  Sums  of  Money,  bein^  on  Record  in  any  oj  his  Courts  from  the  lajl 
I'ear  of  H.  '8.  to  the  \^h  of  ^leen  Eliz.  as  (hall  amount  to  looo  /.  it  was 
refolved,  That  this  Grant  was  void;  ibr  there  is  no  Certainty  what 
Debt  lliould  pafs.  And  that  the  NV'ord  (Arrearages)  being  coupled  with 
the  \\'ords  (Debts,  l^uties,  and  Sums  of  Money)  lliould  not  pafs  Ar- 
rearages of  Rents,  or  7'hings  Real,  but  mult  be  intended  of  Things  Pcr- 
fonal ;  but  there  being  a  Provilb  that  the  Grantee  Ihould  take  no  Be- 
nefit of  any  Arrearages  of  Rents,  Reliefs,  Tenths,  or  annual  Pay- 
ments whatfoever,  till  J.  S.  fhould  be  lacistied  the  Sum  of  loooo  1.  this 
explains  what  Arrearages  were  intended,  viz.  of  Rents  &c.  and  fo  one 
Part  of  the  Patent  niuit  be  conltrued  by  the  other ;  but  clearly  Melhe 
Rates  are  not  within  the  laid  W'ordsi  lor  they  are  the  Profits  of  De- 
mefne  Lands.  12  Rep.  86.  Trin.  9  Jac.  in  the  Court  of  Wards.  Stock- 
dale's  Cafe. 

8.  In  Ejectment,  the  Cafe  upon  the  Evidence  in  a  Trial  at  Bar  wi^s,  2  |o.  i-5. 
that  Eleanor  ^iieen  Doivager  ot  H.  3.    in  the  Year  1273.  founded  St.  Ka-  ^;C-  ^Y 
tharine's  Hufpital,  refcrinng  to   her  felf  during  her  Life  &  Reginis  Jngliie  L^ji^g  ^f 
nobis  fiiccedentibiis  the  Nomination  of  the  Mailer  of  the  Hoipital,  which  Lor'dBnm- 
was  incorporated,   and  the  Grants  confirmed  by  Le:cers  Patents.     And  ker  v.  Sir 
the  .^iiefimi  iuas,Whether  by  thole  \\"ords  (Reginis  Anglic)  the  ^neen  R -Atkins.— 
Doivager  or  Queen  Confort  ivl's  intended  'f     And    it  was    held,   that "  the  c  r '  ^'  '^ 
Queen  Dowager  had  the  Right  to  nominate  i  ibr  Queen  Eleanor,  at  the 

Time  of  Foundation,  was  only  Dowager,  and  therefore  could  never  be 
intended  to  exclude  inch  Queens  as  lliould  fucceed  her  in  that  Capacitv. 
And  the  Words  will  include  a  Queen  Dowager;  for  ilie  is  Queen  of 
England,  and  as  fuch  mav  fue  in  ttie  Exchequer,  i  Vent.  149.  Mich. 
23  Car.  2.  The  Cafe  of  St.  Katharine's  floipitai. 


(F.  c.  z)     Grants.     Enure.     How. 

J.  ^~T^Y{E  JJfife had  tffiially  been  held  inTork-Caflle,  and  Queen  Eliz.  ^n<r;;.'- 
J__  ed  the  Ciijlody  of  the  Caflle  10  J.  S  with  all  the  Herbage  m  the 
Caltle.  Upon  demanding  the  Opinion  of  the  Malter  of  the  l^oils,  the 
Ch.  J.  of  B.  R.  and  the  Lord  Ch.  Baron,  they  held  that  the  Affiles 
might  be  held  there,  whether  the  Patentee  would  alfertt  to  it,  or  not ; 
ibr  if  he  might  prevent  it,  fo  might  every  one,  and  fo  the  Buliucls  lor 
the  Publick  Good  v.ould  be  unexecuted,  which  would  be  verv  incon- 
venient, and  would  be  in  Etletl  the  barring  the  Queen  herlelf  from 
coming  into  the  Caltle,  it  being  her  Service  which  is  there  to  be  exe- 
cuted, and  the  Seat  of  Jultice  her  Seat,  lor  which  the  Common  Law 
with  their  Ccmmiilion  gives  Authority  to  the  Jultices  to  appoint  the 
Place  of  their  Seffions.     i  And.  345.  pi.  320. 

2.  Where  the  Words  Damns  S  Conccdimus  in  the  King's  Grant  can-  Ci:ed  per 

not  enure  by  Way  o^  Grant,  but  may  by  \\  ay  o'i.  Con  fir  mat  ion,  there  they  ^°.''  ^^/  X- 

Ihall  enure  bv  Way  of  Confirmation  ;  fo  that  a  Forfeiture,  before  Office  Cafe  of  the 

found  of  the  Forleiture,  is  diicharged  by  thofe  ^V'ords;  and  tho' they  King  v.  Bi- 

are  void  as  to  amounting  to  any  Grant,  yet  they  confirm  the  Eltate  of  ^mp  of 

the  Patentee.    Mich.  7  jac.     8  Rep.  167.  in  the  Earl  of  Cumberland's  V'r'''^'>  „, 
f^  C  '  •'  ^  '  (ah.i.s  Su-W. 

^^'^'  Tiicckllon's 

Call- ) 

3.  Holt  Ch.  J.  cites  it  as  fiid  by  his  Brother  Turton,  that  the  King's 
Intention  h  a  qualified  Intention,  viz.  according  to  the  Letters  Patejits  ; 

X  u  but 


772  ^~       Prerogative  of  the  King, 


but  hJc.lt  faid  that  a  legal  Intention  is  not  fieccfary  in  the  King,  lut  only  a 
Moral  Intent.  Skin.  66 1.  Mich.  8  W.  3.  B.  R.  in  Cafe  ot  King  v.  Billiop 
ofChcllcr,  (Sir  William  Thcekltone's  Cule.) 


SceCO.c.) 


(G.  c.)     In  what  Cafes  it  fliall  emirc  to  a  do?ihJe  Intent. 

Ev.  Patents,  I.  T  f  tIjC  MW^  SiMUtd  tO  anOtljCt  to  hold  Pleas  before  ^ij^  BailiHs, 
y\  9-  ciics  I    Ste^vards,   OC  SlUStCC^,  it  \)Z    had  no  fuch  Otiiccrs  t'XfOrC   tljE 

6.  c  that  Apf^mi-  ijr;  cannot  uial^e  tijem  lip  it»    7  ip*  4*  5.  tJ. 

be  may  s^/*'**".?    j 

r^ftccStei- ;   a.-d  fo  well If  the  King  grants  Co.ufavce  of  Pkas  to  one  N^  Ms  voff.p  before 

,  I,  ,^/  he  held    the  Grant  is  vcid  ;  for  the  Grantee  cannot  make  a  Judge  ;  b„t  //   he  had  Court  he- 
J^.Tthcie'theG  rant'  is  good.     Br.  Patents,  pi.  44-  cites  z  H.  7.  1 5- 

2.  3f  tije  mm  srantis  to  a  Spiritual  ccrporatiou  to  hold  fuch 

Church  in  proper  Ule  fOt  tUV,  tUijete  ti)e  King  himielt  is  leiled  ul  the 

AdJw-.on  Of  ii)z  m  €\mi)  at  m  Cimc ,  tijtjs  tljaU  no  enure  ft  ft 
to  a  ^x^m  of  tije  Cljutclj,  auD  tijcii  to  an  appropriation :  Ooiit  tljc 
nuniT  ta'seceilicri,  anB  tlicretDrc  t!jc  erant  liom,    i  ?  €.  s*  39» 
3  -llelS'S^^^^  of  a  ^anor,  ujljereof  a  CopinjolQ  Cene= 


Sty.  266.  to 
2-;.  S.  C.  3 

and    the 


,   ,.^"^^y"     SnritVv  cS'*"afim-"fOr  t&tfCtii^not"'excinguilh  tlj£  COPJJ'= 

Sei^ovu^   S'  &c  ufc  tij£  (Sraut  Of  tije  i^ina  iljaU  not  enure  to  a  tsoulHe  ^u= 

7-iJv^^  -S    efeOuiii)  to  fUCi)  collateral   Intent^  ailD  It  iUOUlt! JJC  Of  Dan= 

C>;f^  «c  0U3  CoSenucncc  to  tDe  Coniierance  nianc  h^  m  tm  to  m 
'-^^-'^^  iSrtTif  tie  Mis  once  mafec  a  icafe  MMzjk  mt^  of  a 
^iar.  Z06.    SvM  tnat  tiit0  njouin  nearop  tlje  copp!30iri  far  eoer*    I;  a 

Kfp/i  Iforx'nanna  T^Til  lor  Lile  orVears  leaie  a  Copyhold  ?Ct  tijt^ 
ii-Ujanf  ^.  fr.flll  not  bind  the  Succeffor  lifue  in  Tail,  or  him  in  Reverhon,   tO 

luugi  T^StttbpCopp,  norfljaUbinti  anintant  lorp  of  a  99anor;  auQ 
?he  Ch.  J.  fj  fgA^tc  an^  ^WcmonsJ  of  tlje  l^ing  arc  m  liU  Scanner  uncer  tije 
^TmT"'  IfeoVSuTtJc  S^^  m^t  affairs  of  t!je  mw; 

Con  v:;d^  &'pSX;tufeitmar^  ^^'?^''M^Z^'^^ 

any  rf  the 

K  ing'.s 

Grants  1 

isCopy....^,  jjjm^j^L  ■    pti  mmj.i  vn.**""'?   -  -— _ 

JHIn  ^'4  "in  the  Ca^'^fSeVtid:  if  tijc  l^inff  after  tljc  Dcatlj  of  tljc  ^tiiant 

?1  aV[he        far  life  grants  over  the  Manor  tO  3!.  D*  m  Fee,  tljC  Grantee  may  grant 

G\;n. :,.,,  ?  bf  Copy,  a0  lucii  a0  tije  lining  migljt,  if  Ije  Ijati  not  granted  it  o^er ; 

r°'  '"^^  ■',  fdr  bv  tl)c  beat!)  of  tije  Cenant  for  Lite,  it  is  resiicco  to  tiie  fame 
bu:  ^vhether  ^^..E^^^^     Jy^^^  j^efote  tljc  uiai^uig  of  t!ie  lenie  tor  lue,    3^11 

Ihe  tr  nitrmtofc^^^^^^  per  totani  Cunanu  for 

hold,  foL  X  |v£.ntee  of  tlje  i^anor  notlj  net  communicate  of  tije  f  reroija. 

^*",!^"s  t  V  of  tfr  Eing,  but  ijas  tlje  si^anor  in  tf)e  fam;  manner  m  it  luas 

Xrt  ar%  ill  tijc  Mtfi  A  Ciuic  of  tljc  ©taiit  matic  to  ijinu 

f 'rj  S  Copy  again  they  agreed  might  be  a  Qucttior^. But  Jo.  449-  5fLfC  lu  BC0f!)bp,  wHcl,  feem. 

lamL  by  »-opy  af;aia,  incj    t?  h        »a,,^,,.(.    veoorcs  that  it   was  nj'recd  by  Barklev,  Crookc  and 

?onvl-ofd     fo  t?,      it  K    ot  a..un  grantable  by  Copv.   cuhcr  by  the  King  or  his  Gran.ee  of  the  fthr.o. 
Copyhold     lo  til.     "  '   '        -      determined;  and  that  Rramllome  v.as  of  the  fame  Opm:on. Roll. 

SSJfrpi  :--"i^s''  ^-  '5^--  ^^'  ^^^"^^'^^ '-  ^'^'^^^"^ "'"'"'  ^"Sn 


Prerogative  of  the  King.  14.3 


..•J  ,^^.R,r  Si.1i-     '<;    81     i;-    S  C.  bv  t!,c  ^:nme  of  ;JflilD   t.  15C0!l)bp ;  ar.d 

tnat"  Gran:  tor  Life  by  the  King,  is  only  a  Severance  ot  the  Copyhold  pro  tempore. 

5.  Letters  Patents  of  the   King  flull  not  enure  to  two  tots  i  as S^C  cited  as 
uhere  Land  or  Office  is  granted  to  an  Alien  bom,  this  does  not  make  him^^^^--,  Le. 
a  Deniien.     Br.  Patents,  pi.  62.  cites  7  E.  4.  30.  per  Cur.  24;^  Mich. 

52  Ehr.    in 

i\r^  nf  H-inis  V  Winer -^ S.  P.    5  Rep    5^^.  a    in  Knight's  Cafe,  cites  17  E  5.  59 — — S-  C.  cued 

IWIR   ^6    MickJ'lac.  in  Cai-e  of  Colt  ;.  Glover.-^— S  P.   By  Dyer  P    C.  501.  ^^'ch   >b&  .9 

Ti'th  T^S   is  Th^tfs  )^^:,  this  does  not  infrunchife^he  Villein  by  Imphcation.     5  R^p-  56.  - 
Mich.  30  &  51.  Elii    C.  B.  in  Knight's  Cafe. 

6  If  the  Kin£^  grmits  the  0$ce  of  Steward  or  Conftable  of  the  Caftle 
of  D.  -^here  there  ts  mfach  Office  kfore,  the  Grant  is  void  ;  and  therefore 
the  beft  ihall  be  taken  for  the  Kingi  and  it  the  king  will  make  luch 
OrHce,  it  ought  to  ha\e^  this  Word  Co»/itiimns  &c.     Br.  Patents,  pi. 

^^'^  rL^ inr'gtantcd  the  ^Office  of  one  of  the  Chamberlains  of  the  Exche^ner  Br   Office 

to  H  C.  and  the  Heirs  Male  of  Ins  Body,  to  be  exerafed  by  htm  or  his  fat-  f^^ 

ticunt  Deputy;  and  after  the  Patentee  granted  it  to  J    L.jorhtsLije  ■  and  ^_  ^^ 

alter  the  Kin,  confirmed  it,  and  granted  thereb)'  the  fame  Office  to  f.  L    for 

hlsUfe,  and^after  H.^  had  IJJhe,  and  died,  and  the  IJJ.e  died  withoat 

me  i  and  the  King  granted  the  Office  to  another,   and  J.  L.  made 

Debate  ,  and  it  was  held  clearly,   that  of  luch  Oilices  as  are  granted  by 

the  Kin^  to  one  upon  Trull  and  Confidence,  as  an  hiquire  tor  his  Body, 

the  Grantee  can't  make  an  Alfignment,  if  there  be  no  Alhgnment  in  the 

Grant,  as  here,  to  him  and  his  .-J/figns,  but  ot   the  Oihce  ot   Parker,   he 

may  make  an  Allignment;  and  it  the  Patent  had  not  been  by  him  and 

his  Deputy  &c.  he  could  not  have  made  a  Deputy      And  it  was  mov  d 

that  tho'  the  Grant  to  J.  L.  is  void  agamft  the  JJfie  in  Tail  yet  tis  good 

■againji  the  King,  bv  Reafon  of  the  Confirmation  of  the  King      Con- 

trar>  per  Billitg  ^for  by  him,   if  the  King  does  not  recite  the M  Gran 

and  -rants  the  Ottice  to  J.  L.  Habendum  after  the  Death  of  thcpjl  Granue 

for  Life  of  the  fecond  Grantee,  'tis  not  gc^od  ;  tor  the  king  has  not  the 

Office  to  grant  during  the  Lite  of  the  firll  Grantee.     Br.  Grants,  pi.  99. 

cites 4.Q  H.  6.  14.  and  11  E.  4.  i. 

8  The  Kino-  granted  to  W.  N.  bv  his  Letters  Patents,  that  he  may  p_,.^^,^^,  ^^^^^ 
c;-'e  10  /  Rem  to  a  Chaplain  to  celebrate  Drome  Service  in  B.  pro  bono  Stat  r.r.t  iL-e  tliat 
^  sLim^lL  &c.  j^L  Ordinationem  ipfias  W  N  ffiend^  Rede  GkI  JcveralU^h 
this  is  a  good  Grant,  notwithllanding  th.it  the  C^iaplain  be  not  named,  J^---> 
as  where  the  king  grants  to  them  ot  N\  luch  Liberties  as  thole  ot  Lon-  ^.^^..^  ^^^ 
don  have  this  is  a  good  Grant.  But  FmcuK  and  keeble  held  the  prin-  King  .^aku 
rin.I  Grint  void  •  lor  Grant  of  the  king  cannot  enure    to  fxo  Intents ;  J.K.  a D„kr, 

pl.  44.  cites  2  H.  7.  13.  tw  f.i»,e  Pit- 

tent    and  by  the  fame  Na.ie.     Ibid.—  5.  to  n,^kc  a  Mayer  avd  C.vwn-ralty,  ard  toRh^  Lavd  to  them  by 

r/ViS//;/ or  Licence  to  pureha'-e  ^vhich  is  common  &c.     Ibid.- ^«'>[thc  K.ngpr;/.  /. 

^  V  JZ  (Certain  La„ds  ycz  if  he  gives  La,td  held  of  the  King  in  Capite  m  Mortmain,  the  Land 
Lil  be  (eiiid  tor  Fine  for  the  Alienation,  and  therefore  it  is  .fed  top.t  in  fuch  Patents  now,  tho  ,t  ., 
held  of  us  in  Crftie.     Per  Keeble.     Ibid. 

9  It  was  held  by  the  Juftices,  that  if  the  King  FM«.*:f  Land  to  a  Cor- 
poration  by  another  ^ame  ihzn  that  by  which  they  weie  named  beiore,yet 
the  Land /tall  pafs,  and  the  Letters  Patents y.^.^// Z'C  to  them  ^5  .z  ne-^  In- 
corporation &.,  A^.  190.  Mich.  20  Eli/,.  C.B.  Dean  and  Chapter  ot 
Chiiit-Church  V.  Parot.  ^^^ 


144-  Prerogative  of  the  King. 


^P.  per  10.  The  King's  Grant  cannot  enure   to  two  Intents,  viz.  to  make  a 

Pj^'^^'fij  Lcafe^aad  to  aca-pt  a  Surrender  i  Per  Popham,  and  many  other  grave  and 

"A-^bSG  learned  Men  upon  a  Conierence.  3  Le.  243.  Mich.  32  EJiz.  in  Cale  of 

wh'ofaid.'    '  Harris  V.  Wing. 

That  the 

Rule  is  ti'uc  wlicre  Voth  Intents  enure  and  work  ap;ainft  the  King.     But    v/here  one  Intent  fcrves  for, 

and  works  for  the   Benefit  of  the  King  it  is  otherwife. 

The  King's  Grant  fliall  not  enure  (to  his  fpecial  Prejudice)  to  two  Intenrs,  viz.  to  a  Demife  of  the 
Land,  nnd  alfo  to  a  Suf^evjlono]  his  Ccnditk7i  hy  which  he  may  defeat  the  tftate  for  Life-,  .ipd  other 
Eftates,  as  it  fhould  be  in  the  Cafe  of  a  ccmn'cn  Pcrfon  ;  or  to  a  Demifc  in  rclpect  of  his  preient  Ef- 
tate  pnr  auter  Vie,  and  alfo  to  a  Confirmation  of  his  Condition  by  which  otherwifc  he  might  defeat  all, 
as  it  fhould  be  alfo  in  the  Cafe  of  a  c<;mmon  Perfon  ;  For  the  Grant  of  the  King  fhall  le  taken  accord- 
ing to  his  exprefs  Intention  comprehended  in  his  Grant,  and  fhall  not  extend  to  any  other  Thirg  by 
Conftrnftion  or  Implication  which  does  not  appear  by  his  Grant,  and  therefore  in  fuch  Cafes  the  Kin^ 
ought  to  be  truly  informed,  and  he  our;ht  to  make  Jpccial  and  particular  Grant,  which  hy  exprels 
■^^'ofds  may  enure  to  all  fuch  feveral  Intents  asare  dcfired.  7  Rep.  14.  a.  Mi,.h.  55  &  54  Eli?.,  in  £n- 
gleficld's  Cafe. 

S.P.  per  Ld.  II.  If  the  King's  Grant  may  be  taken  to  a  double  Intent,  it  fhall  be 
^^*^h  m'^  adjudged  void  for  the  Doiiblaicfs  thereof  RefoJv'd.  Dav.  Rep.  45.  a, 
i8^&  19      Paf^'h-  S  Jac.   B.R.  in  Ireland,    in  the  Dean  and  Chapter  ot  Feme's 

Eli?,,  in  Cafe  Cafe, 
of  Grendon 

V.  the  Bifhop  of  Lincoln. S    P.  per  Vi'iiliams   J.  Bulf.    4.  Hill.  7  Jac.   in  Cafe  of  the  EarloE 

Shrewsbury  v.  the  Earl  of  Rutland. 

12.  When  iheYi^'mg  has  two  Rights  m  him,  he  cannot  exclude  him- 
felf  of  both  without  ipecial  Words  ;  as  Advowfon  held  of  the  King  is 
alien'd  toan  Abbot,  now  the  King  has  Title  to  the  Advowfon  by  the 
Mortmain,  and  after  the  King  by  his  Letters  Patents  grants  to  the  Abbot 
that  he  may  hold  the  Advowlbn  to  his  own  Ufe,  vet  the  King  Ihall  not 
lole  Advantage  of  the  Mortmain.  7  Rep.  14.  b.  Trin.  6  Jac.  in  Calvui's 
Cafe. 


^TS'''^^^^'  ^)  jyoTO   it  may  be  witlmit  Grantee.     [Or  where  it 

muft  be  by  njuay  ofOrd/Mnce.'] 


IfthcKing    ^^rTpJpc  JJ^UIO;  lllflp   grant  generally  without  Mention  of  any  to  v.hcni 

grants  Lahd      J_   }jf  HiiiUc^  ©taHt,  tljQt  t\)z  ^cii  Of  fucJj  fl  ^l)!!!  fljnll  fcc  n  Ccr^ 

^Prcbl^Hcwi^  pOratlOn,  a0  fjC  map  fap  Conlticuimus  the  Men  of  luch  a  ViJl  to  be  2 
nibu's  de  Dak,  Corporation,  icilicet,  Mayor  and  Comminalty,  or  fuch  like  ;  jfot  ljSCait= 

it  was  held  nottxrant  tlje  Corporation  to  tl)C  '^zw  in  ti)nr  natural  Capacitp, 
to  be  a  good  nnc  tijcp  arc  not  a  poiittch  CapacttD  before  tJje  oJrant,  ann  fa  tlje 
And'foXTe  <Jprantto  tljcni  ujouID  tt  to  no  ipiirpofr,  *  ann  tijtrctorc  it  is  guon 
it  is  given    Ijcreagitfjercfor  iQeccffitin 

Buyc!;ei:fhiis,  ^_  . 

Ciii'bus  &  Comnumitati,  and  they  by  fucli  Names  of  Corporations  may  have  Aftions  of  Things  touching 
their  Farm  &c.  and  the  Writ  fhall  be  Ad  lei'pondend.  Hominibus  Vills  de  Dale,  vel  Civibus  Sec.  7  E. 
4.  14.  a.  pi.  7. *  Orig.is,  (Et  pur  ceo  icy  ell  bon  come  la  pur  NecelTity.) 

2,  C!jC  filinn;  may  grant  to  31»  €>*  that  his  Tenants  fhall  be  a  Cor- 
poraiion  naming  the  Corporation  in  certain  ;  Jfor  tljlS  13  an  CteCtUlli;  Of 

a  Corporation  m  m\\  ass  in  tljc  otijcr  Cafe*  20  e*  3*  Coniiwiice  nc 
plcajs  46*  atiniittcn. 
3»  Cljc  laing  by  ijiislcttcrsi  patents  niav  ortsain,  that  frora  a  Viii 

■which  is  not  incorporated   Ihall  come  Burgelles  to  the  Parliament  to  be 
eleaed  by  the  Inhabitants  of  the  Viil  ■■,  Jfor  tljllS  IS  tijC  CafC  Of  febtral 

©ins  ano  ODurraui!^  iw  CnnilanU  tcljo  fjane  X'siirmcircy  b;  l.^itana= 
tion  tijat  nc\3cr  luerc  incorporate,  ann  tijerc  tljip  iibcrtp  coulD  noc 


Prerogative  of  the  King.  izj.5 

Comnicitce  b\>  *J?rnnt  to  m\v  but  bv  mv  of  ordinance.  rpoDart'si  EC- 
ports  22,  cnVe  of 'Biirtjcfleis  of  parltaiiicnt* 

4.  '^Ije  l^Uin;   UUl}?  erect   ;i  Fair,    Market,  ^\•arren,  Park,   Forcll, 
Ciialc,  Fifcars  01*  (UCJ)  Uke,  by  way  of  Ordinance,  UJltljOtlt  ifffiint  Of 

it  to  anp*    i^oljiirt'js  Ecpoitjs,  22.  c  r     j 

5.  3f  icttergi  I5arcntsi  are  nmnc  in  tW  C!6anner,  Scatuimus,  Ordi-  comb^'J^J, 

namus  &  Declaramus  per  pra^icntes,  that  the  Vili  ot"  B.  Ihall  bcperpetu-  Hill  6  w* 
ally  a  free  Borough,  ntiH  tljat  lUltljllt  tljC  fi\ttl  OSOVOUa:!)  fljall  bC;i  Bo-  5  B.R.  im' 
dv  incorporate  bv  the  Name  oi  ^i)rO\30ft,  Jfcee  'BurBClTcS   Of  tIjC  "BO^  Caieofthe 

toucb,  anD  Commonaltp  of'B*  ano  bv  tbi0  Bmm  nrnv  fue  auD  ^ZT   """' 
be  luco,  purcbafc,  anD  atieu  fc*  auQ  tijen  folloui^  tbi«>  Claufej  Kt 

quod  ipli  pra:;lati  Prspoliti  &  liberi  Burgenles  *  prsditli  &  fuccefiores 
lui  in  perpetuuin  habcant  plenam  Poteltat.  &  Authoritatem  eligendij 
mittendi  &  returnandi  duos  difcretos  &  idoneos  viros  ad  fervicndum  & 
attendendufn  in  quolibet  Parliamento  in  Regno Hiberni;E  in  Pollerumte- 

nendo.   'Cf)0'  tijtjs  tibctt)'  IS  uot  graiiteQ  to  aup,  pet  it  is  goon  by 
wa\  of  Ordinance,  aun  tfjis  iLibettj'  IS  ooon  bp  uiap  of  Jntcreft  in  all 
tlje  Corporation,  tboiujO  tije  Ctcciitiait  of  it  be  coinmitteD  to  tIjc 
Iproboft  anniSurgelTes  onli).  IM.  Vx,  Cafe  of  parliament  22» 
*  1^7)  6,  So  tl)C  li^inij  map  ijrant  a  Privilege  to  a  Corporation  bp  *Th;sPisi 

toap  of  Jntereft,  and  commit  the  Execution  Of  it  to  any  Pcrfons  UlljO  '"  ^^°"  '=* 
are  not  Members  of  the  Corporation.  fJObaVt'S,  EepOttS,  22.  buSfto'uIcJ 

7.  Vaughan  held.  That  the  King  may  difpenfcwith  a  Corporatioifi  and  havebeenC6j 
he   faid,  k  was  very  ufual  to  Licence  them  to  p/ircba'e  in  Mortniiun^  to 
make  Parks ^  toconwert  Arable  into  Pajlure,  or  IVood  into  Arable ^  to  erect 
a  Fatr^  to  appropriate  a  Relfory  &c.  Freem.  Kep.  139,   HiJI.    1673.  in 
Cafe  of  Thomas  v.  Sorrel. 


(I.  c)  At  what  Tiwe  he  may  Grant; 
I*  npIpSC  tObieb  is  an  inheritance  in   the  King  at  the  time  of  the 

X   Grant,  luiU  uiell  pafs  bp  tbe  ©rant. 

2*  As  if  tljE  laing  grants  to  the  Tenant,  that  when  he  dies  his  Heir 
fliall  enter  without  Thing  of  Livery,  tblS  iS  IXOOH*   19  ^,  6,  62. 

3*  'CljeiiiiniXmaDlTrant  to  anOtber  aU'Recagniiances  which  fhiU 
be  made  in  the  Chancery  hereafter ;  ODeCaiife  tOlS  iS  tbe  PtOfit  Of  tIjC 

Courtv  19  ip*  6»  64* 

4.  '2Dbe  Jibing  map  grant  VV^ards  and  Marriages  to  fuch  a  Value 
which  fhall  happen   tilf  fuch  a  Day,  paying  f  C.  34  C5.  U  ROt.  JfUl* 

$0emb»  ij-* 

5.  %\)Z  lAing  map  jyrant  the  Ward  ot  &c.  quando  acciderit.  29  C»  i.  See  (I  c.2) 

ji^ot.  jfin*  C^cmb*  14*  i"^- ' 

6.  '2E'be  IRmn;  map  difcharge  fuch  Thing  as  ihall  be,  which  is  not  in  5>.  P.  Br  P.i. 
him  at  the  Time  Of  tljC  DlfCljargC*  '?"'^'  v}-^-- 

^  ^     "  cites  6  H.-.  4. 

7.  As  be  tttap  grant  to  a  fpiritual  Man,  that  he  fhall  be  difcharged  of  S-  P-  ^^  P-*- 
*renths  when  they  ihall  be  granted  by  the  Clergy.  9  I).  6.  62.  d^s'fi  H.  -'" 
4.  For  this  founds  in  Covenant,  and  againft  the  King  no  Writ  of  Covenant  lies;  and  therefore  the  Grant 
h  good. 

8.  *  g)otbe  I^ing  [map]  grant  to  anotljer,  that  he  fiuU  not  be  im-  ♦orig.i<si]i 

peached  of  a  Recognizance,  if  he   enters   into  ic  attervvards.     19  f). 
6.  64. 

9.  The  King  by  Patent,  reciting  that  H.  B.  held  of  him  in  Chief,  But  in  Cafe 
granted  to  T.  T.  that  if  H.  died  his-Heir  within  Age,   that  he  pall  have  of  a  common 
the  Ward  of  his  Heir  and  Heirs  dec.  which  w  as  argued  in  the  Exchequer  ,  ^t' .""'^^,j  " 
Chamber.     Choke  faid  the  Grant  is  good  i  fot  the  King  has  an  hivcrcit  Gra-u  •  for 

Oo  :-: 


146 


Prerogative  of  the  King". 


ot  this  he  in  tlr.;VV^arii,  tho'  he  has  not  Poflefiion.  But  Halflon  fiiid,  If  the  Grant 
nwy  Iwve  ^]j.^i[  ]^q  good,  it  Ihall  be  by  Reafon  that  the  Kim^  has  Tenure  in  him  ; 
^[  "'  ''^  "j^Ji'd  but  it' the  King  alter  the  Grant  grants  the  Services  to  a  Stranger  before 
bv'confc-  tlie  Ward  tails,  T.  lliall  not  have  the  Ward;  quaere  inde;  tor  the 
(jii-nce  Seigniory  was  charged  by  the  firlt  Grant  to  T.  But  the  Juttices  held  the 

againft  the  Grant  void  by  the  Statute  *  \%  H.  d.  that  Grants  made  before  thi:  King 
Wa^'ot"^  be  intitied  by  Office  Ihall  be  voidi  but  this  is  only  of  Land,  which  fee 
AiXer:  but' in  the  Statute,  and  this  Grant  jb all  enure  in  Lieu  oj  Covenant.  And  there 
Grant  of  the  fome  argued  that  the  Statute  does  not  extend  to  this  Gale  j  tor  it  uas 
King,  that  ^^^  j|-jg  King's  Advantage i  therefore  it  feehisthat  tht;:e  is  noDitierencc. 
it-.d^ited  of '^  Br.  Patents,  pt.  74.  cites  30  H.  6.  and  Fitzh.  Grant  91. 
Fcloiiv,  if 

he  tie  afcei- outlav/ed  of  it,  the  Grantee  iliall  have  all  the  Foi-feiture_8cc.  f  C's  !^ood.]     Ibid.- . 

So  the  King  m.iv  graiit  ihc  7'emfor.iltiej  of  a  Uijhcp  befon  they  fall ;  Per  Liicon.Biu  it  was  laid  that  there 

is  hut  a  little  Divcrlity  between  this  and  the  principal  Ca'i:.     Ibid. ■ — %  ot  Fines  and  Jr,nrciamnits, 

■dwiClait'h  cf'Felciis  andFuail'ives,  the  King   is  feifed  in  Law  ;  and  therefore  his  Grant  thereof  is 

good;  bat  contra   here;    I'er  Vampage      Ibid. for  if  the  King  grants  the  Efcheat  of  his  tenant 

iwhen  it  [hnll  fall.     Or  the  Land  which  his  Fillein  jhall  pimhafe  ;  this  is  not  good.     Ibid. f  Fitih. 

Gi-Mt,  pi.  91— *^ee(H.b) 

The  King's  G  rant  of  the  Teniporalties  of  a  Bifhop  in  the  Life-time  of  the  Bijhop,  or  of  the  Wardfljip  of  an 
Heir  in  the  hife-tw.e  of  iis  yhiccjlor,  vviio  is  the  King's  Tenant,  or  of  Fifteenths  or  Tenths,  before  they  are 
given  by  Parliament  ti>  the  Ki'g,  are  good  ;  for  the  Law  underftands  thefe  to  be  near  I'ojfibiiitics  The 
Parliament  is  fiippofed  to  be  held  every  Year,  and  the  King  in  Parliament  generally  has  Aid  of  his  Sub- 
jects ;  and  .'^tattuum  elt  6mnibus  I'emel  mori  ;  and  therefore  the  Grant  of  the  VVardfliip,  T'e.nporaliies 
and  Fifteenths,  as  atbreliid,  is  good  :  Bi<t  the  Grant  of  an  Efchcat,  or  of  a  Pitrchafe  i;nide  by  Fillein,  or 
of  the  Forfeiture  of  the  Land  of  an  Offender  before  his  Attainder,  are  uU  void  ;  for  they  are  retnote  Pojfibili. 
ties,  and  out  of  the  Expectation  of  the  Law.     Jenk.  210.  pi  44.  ■ 

10.  Note,  per  Choke  and  Catesby,  Where  the  King  w.rites  to  have' 
B.  admitted  to  a  Corody  for  his  Life,  in  the  Abby  of  B.  who  is  admitted, 
the  King  cannot  write  m  the  Life  oj  B.  to  have  N.  admitted  to  fitch  a  Coro- 

*  Orig.  Is  ^}'  i>!  ff-''^  Life  of  B.  after  the  Death  oj  B.  For  the  King  has  only  a  Pre- 
(:f) )  'but  lentation,  and  he  can't  prelent  in  the  Lite  of  B.  who  is  only  an  Incum- 
nifprinted.     bent  in  Edecl;  in  this  Gale.     Br.  Patents,  pi.  30.   '-ites  *_39H.  6.  48. 

11.  Contra  per  Laicon,  That  the  King  may  grant  Office  for  Term  of 
Lifei  and  by  another  Patent  he  may  recite  thejirfr  Grant,  and  grant  it  to'' 
another  ajto-'.the  Death  of  thejirfi  ;  and  well ;  but  ic  feems  that  he  can't 
grant  it  by  Name  of  a  Reverfion  ;  for  there  is  no  Reveriion  of  an  Office  ; 
lor  it  is  determined  after  the  Death  of  the  Grantee;  but  he  may  grant 
it  by  Name  of  O fee  Habend'  after  the  Death  ofthejirfi  Patentee.     Ibid. 

And  it  was         12.  In  Eicape  out  of  the  Prifon  of  tlic  Bilhop  of  S.  by  Negligence, 
held  that  the  the  Billiop  fhevved  ancient  Grant  allo'xed  in  .^aoWarranto,  where  thcKing  . 
Grant  is       j^^d  granted  to  his  Predecelfors  tlxit  he  fboitld  be  quit  of  Efcapes  of  T'hievcs 
^°'"^J'pd7,e    ^''^  i^'eloi'S-)  ^nd  of  Efcape  of  Prilbners  oitt  of  his  Prifon.     And  ail  the 
becaule  i"  is    jullices  held  it  good,  becaufe  it  was  allowed  in  Eyre;  for  this  is  Jndg-  ■ 
a  Thing       inentJinaHntYiXs  Point.     Br.  Patents,  pi.  51.  cites  3  H.  7.  15. 

■which  turns  ,  ,        ,  ,    i         ,      ,  ^ 

in  Pxnam  Peeumariam.  Ibid, But  lohtntary  Efcape  cannot  be  pardoned  before  the  Act  done  ;  note  the 

Divc'ficy.     And  the  Reafon  is,  becaule  negligent  Ejcapc  is  only  Money  to  the  King,  v;hich  he  may  par-- 

don  before  the  A<tt  done.     Ibid. Butfuch  Grant  cannot  be  intended  of /Wrat^rv  Efcapes.     F.M.B, 

(2i9)  (B.)  a.  f24.  in  Notis. 

S.  C.  cited  13.  Note  where  the  Statute  of  3 1  i/.  8.  gives  to  the  King  the  PoJJe/Jions 

1 1  Rep  12.    (,j^  yitleys,  and  all  Rights,  Entries,  Afiions,  Conditions  &c.  •mhich  the  Ab~ 

aanOtik^       ^"^^^  ""^^''^  ^-'^'^^  ^"''^^'  '^''^  ^^''^  ^'^  J^^^^  ^^  "'  Pqlfel/ion  without  Office  i  and 

^  jpamu'l';  '^^''•^  ^^  fi^^^  ^'  adjudged  in  aifual  and  real  Poffeljton  oj  tboi'e  m  fuch  Plight 

and  lays  that  and  Sort  as  they  ivere  at  the  ftime  oj  the  making  oj  that  Statute,  yet  it  an 

(his  Quell  ion  jUct  was  diffeifed  of  four  Acres  ot  Land,  the  King  cannot  grant  'it  over  be- 

is  here  well    ^-^..^  E/itrf  made  by  him  into  it,  becaufe  it  is  a  Choj'e  m  Aifion  Real,  and 

aild  rdblved.'not  like'to  a.Chofe  in  A6tion  Perfonal,  or  JNlixt,  as  Debt,  Ward  §:c.  by' 

tome  j  and  by  ibme  Contra,  by'  Reafon  of  thole  VVords,' that  the' Kin  4 

\  i],all'b'e  in  Po'lfellion  ;  but  this  teems  to  be  that  he  Ihall  be  in  fuch  PofA  : 

iMiion"  as  the  Abbot  was,  viz.  of  the  Thing  whereof  the  Abbot  had  Pol^ 

ftfliun,  the  King  has  by  this  Actual  Poliellion  j  a;id  oil'uch  whereofthe 

Abbot 


m 


Prerogative  of  the  King.  izj.7- 


Abbot  had  only  Caufe  of  Entry,  or  Right  in  Action,  of  thofe  the  King 
ihdh  be  velkd  of  a  Title  of  Entry,  or  Title  of  A6tion  ;  but  the  Thing 
to  which  he  hasfuch  Caule  of  Entry  or  Aclion,  is  not  by  this  in  him  in 
Pofleifion;  and  there  lore  canmt  pafs  from  the  YUn^  by  general  Words. 
Qiisere  if  the  King  nxttcs  the  DtjJ'aJ'ni.,  and  how  the  Right  and  Aftion 
i*  *  given  thereof  to  him  by  the  Statute,  and  grants  it  ffecially^  it  feems 
that  this  is  good.     Br.  Chole  in  Action,  pi.  14.  cites  33  H.  8. 

14.  If  a  yt/iiw  be  accuibd  or  mdithd  ofTrcafon  01  Felony,  his  Lands  *Ovi£^.  in  all 
and  Goods  cannot  he  granted  to  any,  no,  not  'io  much  as  by  Promife,   nor  5''*^  Editions 
any  of  his  Lands  or.  Goods  feifed  into  the  King's  Hands  before  Attain-  '^ou°|j'\|'"^ 
dtr;  for  when  a  Subjeft  obtains  a  Promife  ot  the  Forfeiture,  rnany/Jo^,g^ 
Times  undue  Means  and  more  violent   Profecution  is  ufed,  than  the 
quiet  and   jult  Proceeding  of  the  Law  would  permit,  and  the  Party 
ought  to  live  upon  his  own  until  Attainder.     £  Inlt.  48. 

-     15.  The  King  granted  the  0/5^Ve  o/.fe7r6-^fi- in  the  Port  of  P.  to  J.  M.  5  ^'^  *'^^- 
(without  granting  it  to  him  for  Life^  fo  that  he  had  only  an  Eltate  at  2-5. s  C— * 
Will;)  and  afterwards  reciting  this  Grant,  granted  to  Kemp  tor  his  Cairh  550. 

,Lilc  the  fame  Office,  from  and  after  the  D^athy  Surrend':r  or  Forfeiture  df^-^  C. 

]Vj.  This  was  adjudged  a  good  Grant.     12  Mod.  77.  Trin.  7  W".  &  M-  ^""^''^  -^"^ 
the  King  v.  Kemp. 


(I.  c.  2)     Grant  of  the  King  in  futuro.    Good,  and  KJdhen 
it  ihall  talc  EffdL 

I.  ^^KA'ST  of  the  next  Ward  dzc.  is  good  ;  for  it  founds  in  Cove- 
\  T  nant  &c.     Br.  Patents,  pi.  53.  cites  6  H.  7.  :j. 

2.  Grant  of  an  Office,  reciting  the  firit  Grant,  and  to  take  F.^eff  after  the 
frfi  Grant  detmmntd,  is  a  good  Grant;  li^r  the'  the  King  has  no  Rever- 
iion,  yet  he  is  itrifed  ot  the  Office  in  Law,  and  inheritor  of  this  Grant 
alter.     Br.  Patents,  pi.  57.  cites  8  H.  7.   12. 

3.  Queen  EWidb^ih  granted  the  Herbage  and  Pawnage  of  Clipfbn-Park  i  Buld.  4. 
to  y.S.  for  Lfe;  and  atterwards/O;;^  Jam^s  by  Letters  Patents,  r«(r;V.'/y_^  E-it-l  of 
tkejorhierF.Jiate  for  Life,  granted  the  Herbage  and  Pawnage  to  the  Farl  ^hi^v/sbury 
of  Rutland  for  Life,  not  mentioning  in  this  fecond  Grant,  iiohen  the  Filiate  i^uji-ind" 

In  the  Herbage  and  Vx\vr\'<\'^tJbould  begin,  yet  the  Grant  was  held  good  j  s.  C. . 

for  the  firit  Grant  being  truly  recited  in  tiie  latt,  the  King  could  not  be  2  Bi-ov.nl. 
milfaken,  or  intend  to  pafs  a  greater  Eltate  than  he  hud  to  grants  and  ^^?;.^;9;~ 
therefore  the  Elf  ate  in  the  Herbage  and  Pawnage  fhall  corumence  to  the  •^^'^^^'  "  ' 
Earl,  as  by  Law  it  may,  viz.  alter  the  Death  &c.  of  the  firit  Tenant  for 

Liie  ;  nor  was  there  any  Uncertainty  when  it  fhoujd  commence;  for 
tho'  the  Grant  to  J.  S.  might  be  determined  leveral  W  a\s,  either  by 
his  Death,  Forfeiture  or  Surrender,  yet  it  can  determine  but  once,  and 
which  ever  firtt  happens,  the  other  Grant  Ihall  then  commence.  .  8  Rep. 
55.  Mich.  6Jac    C.  B.   Earl  of  Rutland's  Cale. 

4.  Queen  xMary  granted  Elt wood- Park  to  the  Lord  Stafford,  and  /J'/j  2  Brownl. 
Wife^  and  to  the  Heirs  oj  the  Body  of  the  faid  Lord;  ali:erwards  Queen  -^^  ^-aVvi 
Eliz.abeth,  Anno  7.  of  her  Reign,  reciting  the  former  Fjlate,  and  thatjhe  g  q  ■'^' 
had  the  Rcvcr/ron  Expedant^  flie  for  the  S.um  of  53  1.    iS  s.  granted  the 
Revcrjton  to  J.  S.  and  to  the  Heirs  of  his  Body  ;  and  ihe  did  lurther  •will 

and  declare,  that  if  the  faidj.  S.  did  pay  the  further  Sum  of  20  s.Sc.  then 
he  Jhould  hasje  Prjediciam  Reverfionem  to  htm  and  his  Heirs  tor  ever.  And  it 
was  adjudged  that  the  Words  (Will  and  Declare)  are  funlcient  to 
amount  to  a  Grant  ;  and  fuch  ^Vords  are  always  ufed  in  Patents  of  Li- 
berties and  Franchiies,  being  Things  contingent,  and  De  futuro ;  and  that 
fuch  Grant,  with  a  Condition  Precedent,  might  be  annexed  to  Things 
lying  in  Grant,  as  a  Reverfion,  as  well  as  to  Things  lying  in  Livery  j 
or  to  an  Eitate  Tail,  as  well  as  an  Eltate  for  Life,  of  Years.     And  laft- 


Prerogative  of  the  King. 


Jy,  that  the  Words  (^Rever/iomm  pradicJ.)  mult  be  intended  offu'-h  -iRe 
verlion  as  the  Queen  hadj  and  could  grant,  viz.  the  Reverlion  of  the 
tee,  und  do  not  mean  the  Reverlion  in  Tail  which  Ihe  had  before  erant 
ed  to  him,   and  therefore  could  not  grant  to  him  again.     And  that  luch 
\V  ords,  in  theKing's  Grant,  ought  not  to  receive  too  nice  a  Conllruaion 
.    u  ,  r^,    ^       P-  ''^-  ^-   ^""-  7  J^'^-  -Lord  Staiford's  Cafe. 

f  he"d  tSt  ^;  ^'''f  i  ^"  Office  of  Searcher  &c.  for  Ltfe,  after  the  Death,  Stir- 
jktheKing  ^-^"'ic-^  or  tor  entire  of  the  jormer  Grant  of  the  fame  Office,  which  was 
grant  anO/-  granted  at  U ill,  is  good.  And  if  the  King  lliould  detmawe  his  Willin 
fee  u  ,_om-  the  Life  of  Grantee  at  Will,  •withcut  any  Surrender  or  Forfeiture,  in  fuch 
trorlcn"  S  ,1  '\  ^!'°"1  ^^^"^  t^  not  commence  during  the  Lite  ol  Grantee  at 
the.4  is  „o  J;  '^Ij  ?"^!"  ^he  mean  Time  the  King  may  grant  it  to  whom  he  pleafes. 
other  Eftate    l^ef  Holt  Ch.  J.  12  Mod.  8o.  Trin.  7  W.  &  M.  The  King  v.  Kemp. 

in  Bein^,  to 

'^!Tlr!  "r  °-^*">;|''  '.f -^  ^'\  '■V'l'-  '^^r/ :  1"°  if  he  grant  an  Office  to  commence  on  a  Contin- 
gemyaTearhenc,  or  the  like  ;  for  tho  a  Freehold  cannot  commence  inFuturo,  that  is  to  be  «« J, /^L 
vvhere  it  is  AeuvtA  cut  of.,,  fnherit.nce.  If  there  be  an  Office  ,n  Fee,  and  the  K\n.  has  tl  e  InheScf 
there  a  t-rechold  can  no  more  commence  in  Future  by  Letters  Patents  than  h,  L  Very  of  Se  n  foTs  ^ 
Co.  Berwick's  Cafe     li  Mod  So.  King  v   Kemp— -— £»Mf  ir  !,•    ■,  k..,.  cri  ^     aI      ^  '  S--^ 

he  mav  conftttute  it  tn  .hat  Manner  he%leafcrras  a  ^il/^I^m^vt^Vani^d'o^c  ea'^^d't^o^l^' 
mence  m  Future,  or  on  a  Contingency,  as  in  the  Cafe  of  Ed.  2.  quoted  in  lorbft's  c'fe   Tn  i  Co  g 
For  It  >s  a  Creature  of  his  own,  and  he  may  difpofe  of  it  as  he  pk-afes.     ,  i  Mod  So  Khi'  /  Kemo —i - 
And  ur,fe  a„djatl,   and  to  be  w  EJfe,  and  mt  in  EJfe,  as  well  as  a  Rent.     Per  Holt  Ch    J    Skin 


(I.  c.  3)    Grant   determined  hy  Death  of  the  King,  or  Pa- 
tentee. 

fpall  make  an  Jbbot   without  Licence  of  Eleiiion,  if  the  Tenant  dies   his 

Heir  fliall  be  in  Ward,  or  it  the  Abbot  dies,  the  Covent  ffiail  not  make 

an   Abbot  vvuhout  Licence  ;  For  in  the  one  Cafe  the  Grant  expired  by 

the  Death  of  the  Tenant,  becaufe  it  was  not  granted  to  him  and  his  Heirs:, 

and  in  the  other  Cafe    becaufe  it  was  not  granted  to  the  Abbot  and  his 

^ucceflors,¥ov  when  the  Grantee  is  dead,  none  is  alive  who  can  enjoy 

or  plead  the  Grant  i  But   where  it   is  granted   to  the  Tenant  and  his 

*  Itfeenrs      Heirs  &c.  the  Heir  Ihail  not  be  in  Ward  ;  nor  where  fuch  Grant  as  a 

that  it  bove  IS  granted  to  theAbbot  and  his  Succeflbrs  ;  [And  there]  the  Gran- 

^ould  be      ,s  good  clearly  ;  Per  Laiconj  &  nemo  contradixit.   Br.  Patents,  pi  30: 

"^  ■  2.  If  a  King, rants  Conufance  of  Pleas  to  J.  N.  and  dies,  the  Grant  is 

not  good  againlt  the  other  King,  in  as  much  as  it  was  not  granted  for 
the  King  and  his  Heirs  i  Font  is  de  Jure  Corone,  and  yet  Confirma- 
tion ot  the  new  King  IhaJl  make  it  goodf.  Brooke  fays,  it  fecms.  That 
the  hrit  Cafe  is  not  Law.  Br.  Confirmation,  pi.  2S 'cites  2  H  7  10 
Where  the  3.  Contra  of  Annuityjihich  charges  the  Perfon.  Ibid  cites  s"  C  ^nc\ 
King^,rr^,rt/  fays    feeM.  2  E.  4.  22,  24.  ■     ■ 

Office  or  An-  t      jj      T 

,;«;/v>L/f.&c.  which  i.  «.*  ^>fci.T/0#.e  and  dies,  there   ^^eedsnoCcnfi^-mutimofthene-^Kn,.-  By 

an  the  Juftices.  Br.   Patents,  pl.    Sc,.   cues  l  R.  5,  4.- So   of  FranJh.Je,  corJa  ofJ.d:a^!  Office!. 


Br.  Confir- 
mation, pi. 
19-  citci  S. 
C. 


4    If  the  Kiiigfor  him  and  his  Heirs  grants  Cat  alia  Fehnmn  ^Fimtivc- 
rum  &c    which  lie  in  Grant,^^;;rf  he  dies,  the  Grantee  needs  no  Confirms 


hare 


Prerogative  of  the  King.  14.9 

have  Confirmation  of  the  new  King.  £!it  it  feems,  that  ttc  Grant  of  a 
Thing  "which  lies  in  Grant  is  good  clearly  witkont  thofc  Words  (for  hini  and 
his  Heirs,)  but  of  Warranty^  Covenant,  jinnuity,  or  fueh  like,  there /'e 
ought  to  make  it  for  hini  i.  .d  his  Heirs.  Er.  Coiiflrmationj  pi.  19.  cites 
33  H.  8. 

5.  A  Licence  granted  by  the  King  to  alien  in  Alortmain  fl;a!l  ferve  a-  ^"^  C.  cited 
gainit  the  nextKing,  if  the  Grantor  dies.  Br.  Preroeative,  pi.  io6.  cites  f''~".'^5'- 
^-  N-  -B-    223.  £,i,^  i„  Si? 

Tliorrii's 
Wrotli's  Cafe,  vlierc  it  is  faid.  That  It  fcems  to  be  good  Rcifon,  tho'  the  Grant  was  not  made   foi'  the 

King  and  his  Heirs,  ii>  as  mu.h  as  it  was  granted  in  the  Body  I'olitick  of  the  K  ing. Qv.  Prerogative, 

pi.  \o6.  adds,  th.1t   C'i;),7)vi  it  is  faid  elfevviiere  of  Grant  made  tD  ihe^aurtit  to  alien,  this    fliall   not  lerve 

againft  the  nextKing. Co.  Litt.  52..  b.  fays,  That  it  was  relblved,  Midi.   3  Jac.  in    C.  B.  th.it  the 

Licence  may  be  c.'iecuted  afier. 

6.  King  Ed>v,  6.  granted  to  foreign  Aferchants  to  export  Merchandizes, 
faying  the  like  Ciifoms  as  any  Knglijb  Merchants  paid  i  now  though  the 
Grant  did  not  exprcfs  Pro  fe  S  Hxredibiis,  yet  hecauie  the  King  nad  an 
Inheritance  in  the  Cuitoms  as  a  Prerogative  annexed  to  the  Crown,  ic 
feemed  to  ail,  that  the  Grant  was  good  for  the  Cuilom.  D.  92.  a.  pi.  17. 
Aiith.   I  Mar.  Anon. 

7.  If  the  King  grants  to  a  Man  to  export  1000  Tun  of  Leer,  aliquo  Sta- 
tute non  Obilante,  and  fays  not,  for  himfelf,  his  Heirs,  and  Siiccefors, 
iheC^eflion  is.  If  in  fuch  Cale  the  Grant  determines  not  by  his  Death, 
it  being  only  a  Licence  Diipenlative  and  re\ocable  before  Execution  of 
it?     D.   92.  a.    pi.    17.  in    an   Anonimous  Cafe  there,  but  no  Opinion 


given 


8.  The  King  gnmzs  Annuity  for  Term  of  Life  Percipiendo  ad  Recept/fmihid.  r)i.b. 
Scaccarii  nofiri,  and  does  not  fay  in  his  Grant,  Profe  S  Ha:redib:!S  ^  Sac-  F'  ^  '^'■" 
ccjioribus flits  ;  whether  the  Heir  orSuccelTor  Ihall  be  charged  with  this.?  ..„  th«  £^?d 
and  the  Habendum  was,    Percipiendum  ad  Receptum   Scaccarii  noltri  of  2llrcrl)'0 
per  ALintis  Thefaiirarii  Caviierariuram  nojiroriim  ibidcin  pro  Tempore  cxijfcnt,  Caie,  th.it 
And  this   Grant  was  pro   Servitio   tarn  Regi  H.  8  quam  ditto  Regi  '7  ^-^^'"^'^'''^ 
E.  6.  impenf.     It  was  debated  in  Serjeant's  Inn i  And  by  the  Opinion  t>l  the  lu'blu- 
Cordel  Solicitor,  Griffith  Attorney,  Dyer  one  of  the  Queen's  Serjeants,  tion  of  the 
Whiddon,  Brooke  Ch.  Baron,  Morgan  and  Bromley  Ch.  J.   the  Annuity  Juftices  a- 
is  determined  by  Death  of  the  King  ;   But  Stamford,  Saunders,  Brown,  ^^'^  Y^^^ 
and  Portman  held  the  contrary.  IdeoQuaMe.   And  it  wasitrcngly  held,  .\,JpuiJ'^as 
that  the  Grant  is  void  to  charge  the  Ptrfon  of  the  King,  and   without  fri-^nted  Pro 
Ihewing  certainly  by  whole  Hand  it  lliail  be  rendered,  the  Grant  is  void  j  Execntknn  a- 
And  this  by  the  Opinion  of  Fitzh.  in  N.  B.  laft  Caic  inWrit  of  Annniry  ;  i'("\'i>  (Officii 
And  then  Icr  this  Realcn  there  is  no  need  of  iaying  Pro  HLCredibus  ^'"f'l^^^lf^.^-^l^ 
Succelioribus  Regis  •■,  but  by  reafon  oi  the    lalt  \V  ords,  viz.  Scaccarii  ftand  not  ia 
nrfiri  per  Maniis  'Ihefaur.  S  noflrornm,  this  refers  only   to  King  F.  6.   and  need  of  the 
therelore  the  Eltate  in  theAnnuity  was  limited,  and  by  theKing's  Death  Word  H*- 
determined.     D.  92.  a.  b.  pi.  19.  '^^'■^'''■ 

9.  Queen  Mary,  Ex  fpecialia  gratia  &c.    made  a  Grant   to   A.  B.  fo  Ibid.  J\Iarg. 

keep  a  Tavern  andjell  IVi-ncs  by  Retail  Non  Obfiante   the  Statute  7  Ed.  6.  in  *^^^"'  '^  ^-  '• 

which  Ihe  commanded  her  Officers  to  permit  the  Patentee  to  keep  a  Ta'cera  and  ■■[•^^^  ^^^  ' 

/f//&c.  for  Lile  i  Catiin  held  the  Diipenfation  perpetual  during  the  Lite  the  King 

of  A.  B.  and  that  he  is,  as  it  were,  exempted  out  ol  the  Statute  utterly,  p^-trts  Lari 

or  otherwile  the  Licence  being  once  put  in  Ure  is  immediately  deter-  r"°"f.  -p 

mined  &c.  But  Dyer  and  Saunders  contra,  and  that  there  ought  to  lea^^^^^  ^„j" 

certain  Time  and  Limitation  of  the  Prince's  Pleafiire,  How  long   the  D\f~p)j7:ctjo>- 

peniation  and    Licence   Ihould    continue,  and  that  by  the  Death  of  the -'="-"/'"■'?»  he 

It  ince  this  Commandment  Ib.all    utterly  ccalc.     Ideo  Qu;£re  Legem.  D.  ?"     f,^,';'" 
1  I  ■■M  CI-        ^  ^  °  '"e  at  Will, 

2.-0.  pi.  22.  Hui.   10  EllZ.  Anon.  and  not  for 

Term  of 

Life,  which  Cafe  Cckc  affirraed  in   C.  B  Paf>;!i.,  S  July,  and  that   he    denied  the  Opinion  of  Choke 

5  £  4.  S.  21  E.  4.  46. 

P  p  10.  Hi  fie 


1 50  Prerogative  of  the  King. 


Y  C.  cited  10.  }Vifie  Licence  was  granted  by  the  King  Pro  fe  &  Hreredibiis  to  A 

Trbio  and  B.  and  their  AHigns,   to  fbll  Wine  in  fucli  a  Vill.     Adjudged   That 

Car.  2  13.  this  continues  nonvichlknding  the  Dcmife  of  the  Kino-.  Sid.  67    Mich 

K  in  Cafe  12  Car.  2.  C.  B.  Young  v.  Wright. 

?  W.T'  .  '  ;•  ^^''^^-P^'  ^'■'^g'"^"  Ch.  J.   This  Cafe  dlff'ers  from  Cafes  of  a  naked 

favs  Tim  ^'itkoy'ty,  m  as  much  as  the  King  who  ma!<es  the  Grant  has  an  Intereft 

an  Intercrt  '^^  Inhc-ntancc  in  the  'Thing  which  he   grants  ;  And  he  likened   it  to  the 

p.ilTcd  h^  Caie  where  the  King  granted    10  /.  oiitof  Tonnage  and  Poundage-^  This  is 

c.y,v  .^  «.-  good,  tho' Tonnage  &c.  then  ceafed  by  the  Parliament's  not  grantino-  it. 

£17^;/;  S^^-  7-  '"  Cafe  of  V^oang  v.  Wright.                                          S          o  't. 

leir  Right  befon  the  Statute  luas  made. 

12.  So  if  the  King  grant  the  Tenths  or  Fifteenths  of  D.  to  J.  S  tho' 
the  Clergy  at  the  time  have  not  granted  it  to  the  King^  yet  the  Grant  is  ^ood  - 
Becaule  the  Inheritance  is  in  the  King,  tho'  not  then  in  Prender,  and  io 
a  tortion  the  Grant  lliall  be  good  in  the  principal  Cafe  of  the  Wine  Li- 
cence.    Sid.  7.  in  Cafe  of  Young  v.  Wright. 

13.  Scire  facias  to  repeal  a  Patent ;  The  Cafe  was,  That  KJnr  Ch  I 
granted  to  one  P.  the  Office  of  Under-fearcher&c.  durante  beneplacito  n4ro 
and  alter  King  Ch.  11.  was  reftored,   he  fent  his  Privy  Signet  to  the  Lord' 
Treafurer  to  confirm  P.  in  his  Place.     F.  obtained  a  Patent  from  Kino-  Ch 
II.  of  this  Place  without  taking  Notice  of  ths  former  Parent  to  P    ''And 
the  Quelhon  was,  Whether  this  fecond  Patent  was   void  by  the  Stir 
6  H.  8.  cap.  15.     It  was  agreed   on   ail   Hands,  that  the  Kind's   Prvv 
Signet  did  but  intimate  the  King's  Mind,  but  could  transfer'^no  Inter- 
ell       But   the  Lord  Chancellor,   >\indham,  and  Rainsford   inclined 
1  hat  the  Patent  was  void,  and  the  Scire  facias  to  be   qualhed   without 
better  Caufe  Ihewn.  Freem.  Rep.  71.  Hill.  1672.  the  King  v  Poller 


zIWt  ^^'  ''^  ^'^"^  ""^  ^^^    ^'"§:     Prerogative.     What  Imrnu^ 
Ancknt  De-  nttks  the  Kino;  may  o-rant. 


mefne  (B) 
and  other 


ForaTities.  '*  T^??,p."^Q^  1113))  grant,  tijat  tljc  €mm  of  a  m\  mw  be  qiu't  of 

49  e,  ,6   '"  ^''^'^    ^^'""""^  ^'^^ '"  England  ofailtijiir ^crdjaniJijc^, 

■7  %^  t%k3^L^}^f^  ^^'^^^*  l^^'  ^'  ^"^^^^^  f?J«f  far  fuel)  ttsnc 

i\f*  ^g"^2,  ff^^2-^^T"'°""'°"'^"'  coram  Julticiariis  Itinerannbus 

t!t*r'  ^^^*P^^*  S^cmb*  4.  Hac  Vice  50  onuiibus  @)umman!f?onN 

bll0.[COraUt]3UftlC.  itinerant,  tam  ad  CommuniapS  q^^fn^ 
rlacita  de  Forelta.  ^ 

of  DShr4e  ,,3;  2  f  3  e.  U  €Wttmm.  mm}}.  3.     ^iXmmx  from  Toil 

Sm ^i  m   m'iTu"  " mmmm x^ituanum tt epiP 

fagc.,  which 

Ip'rf'  ^'"^''"  '^'  ^'"'^'"-     ^^'  '^'  ^^''^°f  Waller  v.  Hanger.  5  Eulft.  i  See     And  fee  S.  C.  (R.  .) 

rrtJ^'Jr.^^^  ^^^^  letters  patents,  20  ir,,  6.  m-mtm  to  Cormts 

fmmm  fDOltia  He  turcljarpn  of  I^aDUlCnt  of  ToII  for  Ponta"e  and 
a^i^^  'i^^'r^/^'^t'"  England  ;  luljlCfj  10  aDmJttCD  POB.  ^r»  43 

ap liumx!, mm m Iji^ lanns ann si^^a  iibcri  f  nt t  men  T^ 

Murdro^Larrocinio  &  Shire&Hundred,  &de  Se.tis  Shire  &  Hand  red, 
o;  ^  Auxilus  licccom.  de  Forefta  &  Piacitis  Forcils,  &  de  Valtis  & 

Aliarcis 


I 


Prerogative  of  the  Kin  a.  i  ^  i 


.c,c...x>v,     v^x    ex.-.    iVllJ^ 


Allarcb  RcgardisForells,  &  omnibus  aliis  Operibus  tamCaftellor.  quain 
Vivar.  &  Scagnor.  &c. 

6.  -3  €,  u  Eat  I3atv©>  9.  ^-'ijc  Eiitn;  an  J^ctittoncm  $c,  aitu 
In'  cljc  liUfcnt  of  toe  Citi)  at'  lonDou,  grantcD,  %m  3i»  Citi?cn  of 
jLonnon,  iljoulD  far  1315  life  be  free  m  tijc  Citisde  omnibus Taiiagiis, 

Auxiliis,  Vigiliis  &  Concributionibus,  latione  TerriE  &  Merchandila- 
rum  luaium.  JttHh  quod  non  ponatur  in  Aliilis  ibidem  nee  fiat  iMajor, 
Vicecomes,  Erelieacor,  Coronator,  Praepolitus,  Aldermannus  &e.  i  i£;»  2* 

Part  u  ^.  15- 

7.  Glanvii,  ot  Lincoln's-Inn,  in  his  Reading  in  Lent  1629,  faid. 
That  he  had  lecn  a  Patent  granted  to  One,  that  he  lliould  not  be  com- 
peird  to  be  Serjeant,  or  J-ndgc,  or  Knight.     D.  52.  a.  Marg.  pi.  i. 


(L.  c) 


Prerogative.     Immunities. 


'O 


i>  18.  e*  r.  Eot*  Cfiartar.  ^emb*  20.  mDorfa*  E*  r^stiintcs 
n;rent  l^n'oilcgcei  to  HoipicaJiers  $ &»  uiijcrc  arc  Utclj  Ji^oros,  rciiicct, 

Omneni  Poteitutem,  omnes  Liberrates  &:  liberas  Conluecudines,  quasRe- 
gia  Poteilas  eonierre  potelt  &;c.  COnCeffit  omne  J  us,  omne  Dominium, 
quod  ad  nos  pert i net  &c. 

2.  24  (g.  u  Kot*  Cjjartan  a9cmlj.  i*  DifcOarije  of  Cudoms  and 
Taiiages  pro  \^xioxz  f  Icatribu^j  DC  UB!)tttcnfjauij  £>xtum  €ar= 
tyuuenfis. 

3.  H,  7.  granted  to  the  Corporation  of  Waterfbrd,  ^iiod  omnes  ct  fm- 
gull  Ci-ves  ct  bihahitantes  diftae  Civitatis  et  omnes  etJinguU  Mercatores,  tarn 
indigence  qaam  alicnigenu;  de  nova  Ciijliiina  vocat.  le  tundage  viz.  De  pi\£- 
Jratione  12  Denarioiuin  de  Libra,  impcrpctniim  ftnt  quictt  ct  exoncrati  ^c. 
Dav,  Rep.  14.  a.  Mich.  5  Jac.  B.  R.  in  Ireland,  in  the  Cale  of  Culloms. 


(M.  c)     Patents.     Co'/ijideratlo}?.  SeeCQ^b) 

I*  T  if  tIjC  MWZ  kJe  deceived  in  the  Conllderation  tuljiclj  \)t  tlltClltlCtl  Falfe  Ccjl- 

1  to  {3a\3e,  ti)c  (£*rant  is  nam;  otljenBife,  if  not,  ^Co»  lo.  67.)  £~p\ 

tilJUUttCn*     £15*  5  3a»  ^CnCCt     6  Ja*     %lt  Rck-rt  Johnfon'$  (^HiC.    tentsdocsnoc 

avoid  them  ; 
y^s  <u;hcye  the  Kinj:;-,  for  lo  /.  to  him  paid,  i^ives  fiich  Land,  and  t' e  lo  /.  is  not  p.zid,  the  Patent  is  not  void. 
Ccr.trr.,  Of  Patent  granted  tifon  falfe  Surmife,  as  that  the  Lftud  came  to  the  Kin^  hy  yittaim'er  of  J.  S. 
whi'-h  is  not  true,  or  the  like;  Quxre  Diverfitatcm.  Br.  Patents  pi.  too.  cites  37  H.  8. —  Br.  N.  C. 
5;  H.8.  pi.  ^10 

In  all  Cafes  where  the  Confiderations  arc  real,  and  favour  of  the  Land,  or  extend  to  fuch  a  Eeal 
llir.g,  if  it  he  falfe  itdcftroys  the  Patent.  But  where  the  Confideration  is  Perfonal ;  as  in  Confideration 
of  *  Money  paid,  or  for  Service  done  ;  altho'  it  be  falfe,  yet  the  Patent  may  be  gorxl  Per  Pophani, 
Attorney-Ge- eral,  Arg   5  Le.  248.     Mich,  52  Elii.   B.  R.  in  Cafe  of  Harris  v.  Wing. 

*  S  P.  Hob.  222.    m  Calb  of  Needier  v.  the   Bi.Qiop  of   VVinchefter. 

2*  Surrender  of  Letters  Patents  in  Chancery  to    be  cancell'd    iJCinS 

t{}e  Confivcration  is  goou  i  far  tlje  LorO  Cijanceilor  ot  W  S)fficer0 
Dumjt  to  cantd  [tl^cnij*  Co*  lo*  67*  b,  contra,  ji).  n,  la. 
^cacc*   ^v.  Saviour^  Cafe*   i^.  5  la*  ^cacc*   ^*  6  la*  S>ir 

Rol;rt  yo/^;/^;/'^  Cafe* 


1 52  Prerogative  of  the  King-. 


render,  but  only  ;i  Surrender   in  Law  by  the  Acceptance  of  this  new 
Patent.      fpOD.  JH,  zis* 
Hob  20 ■•  4*  ^^^  '^  Baron  and  Feme  arc  feifed  in  Right  of  the  Feme  for  Life 

5.  c  "'',  of  the  Feme,  and  the  King  grants  it  to  the  Feme  Ibr  Liie  of  the  Feme, 
S.C.  cited  with  Remainders  over,  ])))  UCUJ  ICttCCS  f33iltCnt0,  inCCUiaDitatsan  Of 
Hob.  zi6^     tJj£  Surrender  ot  the  tirlt  Eflate.     CljlS  IS  i\  \jCllO  ^Vmt,  bCCaiuCtljlS 

in'ca'e  o-f  ^-'Uvrcr.Dcr  is  not  abioiure,  iniifuniclj  aa  xnz  feme  after  tlje  Dcatlj  of 
Needier  v.  tijc  x^arou,  liH^  cUiiui  Ijet  flncicnt  ecftate,   Jpo'j*  H»  275.  bsiiueeti 

the  Bifhop     Swain  antl  Holniaii. 

J  of  Winchef-  t 

er.  Hut.   7.  S.  C. 

So  a  Patent  5,  Jf  {f^g  J^ij^ji;  mallC^  fl  leaft  I'or  divers  Ccniideratlons  executed 
fidcrad  n    '  '''^^  ^^  appCilf^  tO  tl)e  CCUtt,  tljtlt  fome  of  them  aie  not  perfc^rmed  in 

.«r«/,n)',and  truth,  Wye  icafc  flialf  De  atsjuGgcB  Dotu*   35*  1 1*  :ja.  Scncc*  idt.  ■5'^?- 

,wtfricw-d,  wof/r'jS  Ciife>    ilcfaitiCtJ* 

is  void. 

Jenk.  504.  pi.  ;  7.  cites  5  Rep.   93.  b.     Serwick's  Cafe. 

6»  Jf  tljC  £\ttin;  recites,  that  where  B.  h.id  furrendered   tO   l)im  Htt 

€Mtt  for  luc,  !}e,  in  CaniiDeratian  of  ti)t0  ^urrenticr,  grnntfi  it 
bp  l£ttcr0  l^atcnts  to  oa*  f c»   3f  tlji^  Surrender  \m&  itot  abfoiute, 

but  upon  *  Condition  revocable,  tU^  10  fl  53013  (J5rant,   bCCiUUe  tljC 

tMuQ  IS  OecciDcB*   !^ob*  E*  276* 
Lane  ,os.      p*  ^f  ^U  Buig  iuiz  laiiB  to  15.  in  Corifineration  tam  de  20 1. 

6.  C.  paid,   quani  pro  eo  quod  the  faid  B.  fuper  fe  allumpiit    to  repair  tfjS 

Cljiun;  icafeB  at  U^  oiun  €0^0,  (bemg  t!)en  BueatJ?  in  Dccai»)  ana 
to  Hmintain  nuti  leaue  it  tecU  repafitQ ;  unB  arter  tfje  LeHee  doth 
not  repair  It,  pet  tlji^  fljal!  iiGt  iCoiM  tij?  ICiifCi  becsufe  t!je  l^titQ;  niaf 
Ijane  Action  of  Covenant  upoit  t(jc  patfiit  asxainft  t!)c  ILeffee  upon 
tOc  fa!5  lliJrouiirr.  ^,  8,  3;a»  ^cacc*  beruircn  Sawjer  am  Eafi. 
iDub* 

ItisaMaxim       «»  COllfitlCratiOJtTi  piift,  anti  affirmed  to  be  {o  in  the  Patent,  need 
Thatifthe     not  be  tound,  or  averred  to  be  true.    C0»  lo,  67,  b» 
Confidera-         p,  Q^m;  otherwife  it  i0  tlje  COUflDCratiOn  be  luture. 

tion,  which  . 

is  for  the  Benefit  of  the  King,  be  executed  or  executory,  or  be  it  of  Record,  or  not  of  Record,  be  rot 
true,  or  not  duty  ptrfcrnHtiy  or  if  PrejiuUce  nirty  arife  to  the  King  ^y  reaf:n  of  the  Ni»:-perfon9U)ice  thereof, 
the  Letters  Patents  are  void.     5  Rep.  94.  a  Trin".  39  EHt..  ia  the  Exehe.^uer.     Barwick'sCale.' 

5  Rep.  95.  iQ_  ThtQ^ten  granted  a  Manor  for  2.1  years.  The  Grantee  fra//ted  a 
liz^^Bar'  ^°^'^S^  P^?rt?/  of  the  faid  Manor,  and  afterwards  (urreiidered  the  I\ianor 
vvick'sCafe.'  '^'^  the  .&i!ccft,  who,  i?i  Coii/idcration  of  the  Surre-idif^  graiilcci  him  aXew 
Lcafe  of  the  faid  Manor.  The  Barons,  viz.  Periam,  Clarke  and  Evans, 
agreed.  That  the  fecond  Leafe  made  in  Conlideration  of  the  Surrender, 
whereas  all  thefirltLcaie  was  not  furrendered,  was  void  ,  Becaufe  the 
<<ueen  was  deceived  in  the  Conlideration.  Mo.  393.  pi.  509.  Hill.  37 
Eliz.  Berwick's  Cafe. 

11.  The  Lord  Chancellor  faid,  That  the  Service  done  to  theReahn  was 
as  valuable  as  if  500 1.  had  been  gi^en  for  the  Land.  Cary's  Rep.  45. 
cites  23  Jan.  i  Jac. 

12.  If  the  King,  in  Confideration  o'C  Land  conveyed  by  J.  S.  to  the 
LordTreafurer  for  the  King's  Ufe,  grants  to  J.S.  and  the  Land  conveyed 
by  J.  S.  is  gotten  by  D:(j'ciftn.^  and  theDiJJeifee  enters  upon  the  LordTrea- 
furer, yet  the  King's  Grant  ihall  Itand  good  ;  for  the  Conlideration  was 
true,  and  you  mult  not  llrain  it  beyond  the  VV^ords  by  any  Imaginary  In- 
tent. Per  Hobart  Ch.  J.  Hob.  221.  Hill.  12  Jac.  in  the  Cafe  o\^  Need- 
ier V.  the  Biihop  of  Winchelter. 

13.  When  the  King  makes  a  Grant  by  the  Words  Ex  mero  Mottf,  and 
jet  cxpreffes  a  real  Con//iicrt't/o.'i  moving   his  Grant  vjhich  is  falfe  ^   Now.' 
(lirfce  theie  are  Contrarieties,  and  cannot  llaad  together)  the  La:v  jhall 

I'.'.dzc 


Prerogative  of  the  King.  153 

judge  upon  the  Cohfideration^  and  iliall  not  regard  the  Claufe  of  the  Form 
Es  nieroMotii.,  which  \s  C/aufii/a  C/cricori/w,  but  Ihall  rcje£l  that  as  the 
Court  does  the  Opinion  of  the  Jury  when  they  find  the  Faft,  and  con- 
clude upon  it  contrary  to  Law.  I'er  Hobart  Ch,  J.  Hob.  222.  Hill. 
12  Jac.  in  the  Cafeof  Needier  v.  the  Bilhop  ot'Winchcller. 

14.  Void  Letters  Patents ftirrendered  are  }  et  a  good  Confideration,  be- 
caufe  of  the  Intention  ;  fo  that  every  Deceit .y  orJVliltake  in  Patents,  do  net  , 
rjttujte  them.     Per  Holt  Ch.  J.  Skin.  663.     Mich.  8.  W.  3.  B.  R.    the 
King  V.  Biihop  of  Cheller.  — cites  i  Rep.  Alton  Wood's  Cafe  —  6  Rep. 
SS. —  I  Roll's  32. — 2  Roll's  60.  [n8j  Dickfon'sCafe, 


(N.  c.)  Patents  of  the  King;  how  they  fhall  enure.     To  ^"(g.  c.) 

howjnany  Lik?2ts. 

'  I*  '€\yt  patent  of  tf)e  l^ingmaD  Cnilte  to  three  intents  exprelTed  in  As  to  make 
the  Patent.     CO,  10,  28.  an  Ir.corpo- 

ration,  to 
make  Succeffion,  and  to  grant  a  Rent.  10  Rep.  zS.a.  Mich,  10  Jac.  B.  R..  in  Sutton  Hofpical's  Gafc. 


(O.  c.)  How  thoy  fhall  be  Expotwded. 

»♦  TJ7  two  Conltruftions  may  be  made  OFt!)C  (StvWt  Of  tlje  fitmO^,    and  The  King\ 

-^  by  one  the  Grant  Ihall  be  void,  and  by  the  other  good  ^    ttJCi!  iqj;  Grams  fha/l 

m  lJ)onour  of  tOe  mm  anU  tlje  QDcneftt  of  tijc  ^mta  fucy  Can-  „'J;JS  f;; 
ftructioit  fijall  DC  maoe  tljat  tlje  tSrant  %\\\  be  BOCQf  Co*  6.  A'Mu.  6.  thenZL  of, 

for  the  Rclkf 
„      „ .       .  r  r  H  '^^'  ^"bjeH 

and  not  to  make  any  drift  or  literal  Cbnitruction  m  Subverlion  thereof.  6  Rep.  6.  a  Hill.  9  EJiz.   in 
Scacc  in  Sir  John  Molyn'sCafe. 

When  a  Charter  of  the  King  may  be  taken  to  tivo  hitcnts,  and  both  Intents  are  of  EffeB  and  good,  in 
many  Cafe.s  hjliall  betaken  tofuch  Intent,  as  is  moflbmef.it.-J  for  the  Khi7;  but  if  it  mav  be  taken  toom 
Intent  of  Eifect,  and^oa;:?,  and  to  another  \nxcnx  void,  and  of  no  Eftect,  itjball  betaken  ini  ccntirucd  ac- 
cording tofuch  intent,  that  the  Grant  piall  take  Effeft,  and  tliis  in  judgment  of  the  Law  ftands  with  the 
Intent  of  the  King  ;  P'orit  was  not  the  Intent  of  the  Kii^g  to  make  a  void  Grant.  S  Rep  16- .  a.  Mich. 
7  Jac.   Tlie  Earl  of  Cumberland's  Cafe,  —5  Mod.  ;oi  Mich.  8  W.  -5.  S.  C.  cited  Arg.  and  fays,  That  it 

isagood  Rule S.  P.   S  Rep.  56.  Mich.  6  Jac.  in  the  Earl  of  Rutland's  Cafe S.  P    loRep.  6-.  b   ■ 

Trin.  II.  Jac.  in  the  Church-wardens  of  St.  Saviour's  Cafe. S.  P.  11  Rep.  11.  b.  Mich.  10  Tac. 

in  the  Cafe  of  Priddle  v.  Napper. 

2.  Patent  ex  mero  Motti  fliall  be  taken  ftrongeft  ^01  the  Partv,   and  a-  Br.  Charters 
gainll  the  King;  contra  of  Patent  granted  upon  Sirnnife,  or  at  the  Suit  "^^ ''^''^i''" 
of  the  Party.     Br.  Patents  pi.  24.  cites  37.  H.  6.  21.  pl^24cuci 

^.  A/itient  Charters,  whether  they  were  before  Time  of  Memory  or  '  ' 
after,  ought  to  beconllrued  as  the  Law  was  taken  when  the  Charter  was 
made,  and  according  to  antient  Allowance  ;  And  when  any  claimed 
before  the  Juftices  in  Eyre  any  Franchifes  by  an  antient  Charter,  tho'  it 
hadexprefs  \Vords  for  the  Franchifes  claimed i  Or  if  the  Words  were 
general,  and  a  continual  Poffeffion  pleaded  of  the  Franchifes  claimed  i 
Or  if  the  Claim  was  by  old  and  obfcurelVords,  and  the  Party  in  pleading 
expoundinii'  them  to  the  Court,  and  averring  Continual  PoJJlJ/un  accord- 
ing to  that  Expolition,  the  Entry  always  was  Inqutratur  fuper  Fojjljlo- 
tiem  y  Ufiim.     2  In(f  282. 

4.  2  Infl.  496,  497.  Upon  the  Statute  of  Quo  Warranto  18  E.  i.  fiys. 
The  Rule  laid  aown  is  an  excellent  one  for  Ccnjhuiimi  of  the  King's 

Q^  q  Letters 


1 54  rrerog- 


Preroeative  of  the  Kins:. 


Letters  Patents  J  not  only  of  Liberties,  but  of  Lands,  Tenement-?,  and 
other  Things  which  he  may  lawfully  grant,  that  they  have  no  ikift  or 
nlrrow  Interpretation  for  the  o\erthrowing  them,  hut  fecii/uium  eararideni 
I^lcntttidinem  judiccntar^  viz.  to  have  a  liberal  and  favourable  Conltruc- 
tion  for  the  making  them  available  in  Law  ufque  adPlenitudinem,  torthe 
Honour  of  the  Kingi  And  that  it  is  alfo  hereby  implied,  that  they  are 
to  be  courtrued  Secundum  earum  Plenitudinem,  viz.  as  jullyand  henejicially 
as  the  Law  was  taken  at  that  \ttine  when  they  were  made;  And  Lord  Coke 
adds.  That  certainly  thele  antient  Laws  were  Directions  to  the  Sages  of 
the  Law  for  the  Conttruction  of  the  King's  Charters  and  Letters  Patents, 
as  appears  in  our  Books. 

5.  43  Eliz.  I.  Enacts,  That  the  Letters  Patents  of  all  Grants  made  by 
the  ^tteen  pall  be  expounded  moji  beneficially  to  the  Patentees,  any  AdiJ- 
fiannng,  Mif-recital^  Non-recital  &c.  notwithlhmding. 

6.  Every  Gift  or  Grant  of  the  King  has  this  Condition  either  esprej[cd,  or 
implied  annexed  to  it ;  fc.  Ita  quodPatria  perDonationem  tllam  magis  folito  non 
cneretiir  fell  g  ra-vetiir  1 1  Rep.  86.  b.  Trin.  44  Eliz.  in  the  Cafe  of  Monopolies. 

7.  King  James,  Ex  certa  Scientia  &c.  granted  to  Jehu  Webb,  the 
Office  of  the  Mafier  ofT'eniiis-Play,  as  well  within  the  Palace  of  Wejiminjler^ 
as  of  the  faid  King  elfewhere,  during  his  Life  ;  It  was  adjudged,  That 
this  Grant  Ihould  have  a  realonable  Conitruftion,  and  extend  not  only  to 
when  the  King  himfelf  plays  in  Perfon,  but  likewife  to  !fennis  Plays  of 
the  King's  Hoajkold.     8  Rep.  45.  Mich.  6  Jac.  C.  B.  Jehu  Webb's  Cafe. 

8.  When  the  King's  Grant  cannot  be  conltru'd  to  a  double  Intent, 
the  fame  is  then  to  be  conltru'd  according  to  the  Intent  and  Meaning  of  the 
King.  Per  Williams,  J.  Bulft.  6.  Hill.  7  Jac.  in  Cafe  of  the  Earl  of 
Shrewsbury  v.  the  Earl  of  Rutland. 

Cro.  J.  521.      9.  Tht  king  leafed  for  21  Years,  and  the  Leffee,  his  Executors  and 
P^- J.^'''^*^  Aliigns,  were  thereby  tied  to  repair.     And  it  was  moved,  that  this  be- 
Si'r  joiin'     '"g  ^^^^  King's  Patent,  wherein  the  Leffee  takes  only,  and  not  made  by  ■ 
Brett  v.Cum- him,  whether  that  Claufe  for  the  Repairing  Ihould  be  taken  and  inter- 
bfcrland.        pretcd  as  a   Covenant   on   the  Lefees  Part.,  to   bind  him  and  his  Aliigns. 

And  refolv'd,  that  it  Ihould.      Cro.  J.  240.  Pafch.   8  Jac.  B.  R.  Lord 

Ewre  V.  Strickland. 
Js  if  the       10.  In  feveral  Cafes  tho*  the  Grant  of  the  King  extends  to  a  future 
w'"^  iT'!  ^'"'''j  y^'^  \i pall  be  intended  of  'Things  prefent  and  in  Elfe  at  the  Time  of 
*»>;i«  rt// my  i^he  Grant.     Dav.  Rep.  15.  a.     Mich.    15  Jac.  B.  R.    in  Ireland.     In 
Lands,l^..\\  the  Cafe  of  Culloins. 

have  the  Li- 
berties in  the  Lands  which  I  had  at  the  Time  of  the  Grant,  and  not  in  the  Land  which  I pmrhafe  ajter. 

Dav.  Rep.  15.  a.  in  the  Cafe  of  Curtoms,  cites  58  H  (5.  10.  a.  So  if  the  King  grants  Liberties 

in  all  my  Dcmefr.es,  and  after  a  Tenancy  efcheats  I    Ihall  not  have   the   Liberties  iji   the  Lands   veivly 

efcheated.     Dav.  Rep.  15    a.   in  the  Cafe  of  Cuftoms. So  if  the    King  gnmsQit.-tlla  felomim  (jm- 

rumcunoiiey  and  after  by  P.irliament  .in  .-lei  is  made  Felony  which  was  not  F:'iony  hefore,  the  Grantee  fliall 
not  have  the  Goods  of  a  Perlbn  attainted  of  fuch  Felony.  Dav.  Rep.  i  5  a.  in  the  Cafe  of  Culloms.-- — 
So  where  the  Bifhop  of  London  has  fura  Ree.ilia,  and  Efcheati  of  Hreafm  within  his  County  Pala- 
tine, he  fhall  not  have  the  Lands  of  Tetiunt  in  'fail,  attainted  of  Treafon.  Dav.  Rep.  15.  a  in  the 
Cafe  of  Cuftoms. 

II.  Where  there  are  Words  in  a  Grant  of  the  King,  which  finder  a  ge- 
neral Name  comprehend  'Things  Royal  and  Things  Bafe,  it  fliall  be  taken  in 
favour  of  the  King  ;  and  the  Bafe  Things  Ihall  pafs,  and  the  Royal 
ihall  remain  in  the  Crown.  D-av.  Rep.  17.  a.  in  the  Cafe  of  Cuftoms, 
cites  PI.  C.  335.  [in  the  Cafe  of  Mines.] 
Without  12.  A.  was  attaint  of  Treafon.     'Tis  found  by  Office,  that   A.  was 

('"hadT^^^  feiled  of  the  Manor  of  D.  the  Day  of  the  Treafon  committed,  (wl:ere 
been  remit- '''  TJ-nth  C.  Was  in  Poffeffion,  and  it  was  his  JuhcritanceJ  The  King  grants 
ted,  but  e-  this  to  B.  in  Fee.  B.  reconvevs  this  Land  to  the  King.  The  Attainder 
ft:pped  by  Ac- oi  A.  is  annuii'd  by  Afl:  of  Parliament.  TnQ  King  by  Yatcnt  reciting 
tl"m''juld'pa  ^'^  ^'i^^->  S'''"^"^^  ^^^^  ^''"'^  ^°  ^-  ^y  P'li-ent.  In  this  Caie  C  is  remitted 
tent,  to  da  101*-°  '"''^  ancient  Right  in  the  Manor.  Ey  all  the  Judges  of  England, 
any 'other       Jenk.  196.    pi.  4. 


Prerogative  of  the  King.  155 

Rifjit  than  by  the  Patent.    Ibid,  cites  55  H.  S.    Br.  Cafes.  io6.  The  Recital  and  Grant   amounts 

to  a  Reftitution  upon  Petition  of  Right.     Jenk.  196.pl. 4.  (bis.)cites  Kelw.ijS.  a  H.  -.  1-. 

13.  The  ConflruiStion  made  on  Grants  of  the  Crown  is,  That  where 
the  Intention  is  plain  the  Words  are  taken  moll:  favourably  lor  the  Sub- 
jeft.  Per  Raymond,  Ch.  J.  Gibb.  308.  Trin.  5  Geo.  2.  Dr.  Bentley 
V.  Ely  (Bilhop.) 

14.  It  was  objefted  by  Turton,  J.  That  the  general  Words  fliould  be 
conftru'd  ''d'itb  relation  to  the  Recitals^  which  Holt,  Ch.  J.  faid  was  fo 
Ibmetimes  ;  as  when  the  King  deligns  a  Profit  to  himfeli';  as  in  a  Grant 
of  concealed  Landsy  and  not  to  diminilh  his  Revenue.  But  it  there  are 
Words  to  fhe-ju  his  Intent^  Non  Objlante  that  they-  are  not  concealed, 
there  the  Patent  fliaJl  be  good.  Skin.  663.  Mich.  8  W.  3.  B.  R.  in  the 
Cafe  of  the  King  v.  the  Bilhop  oi  Giieller. ■  cites  Hard.  231. 


(O.  c.  2)     Differ e}2ce  het^wce^i  the  Grants  of  t^he  Kh?g  and 
a  common  Ferjon^  as  to  the  Efte6i:  thereof. 

I.  T  F  the  King  grants  Lands  by  Letters  Patents,  nn6.  fays  not  for  ivhat 
•^  fT;;;/?,  'tis  but  a  Leafe  at  Will.     D.  270.  pi.  22.     Alarg.  cites  it  as 

adjudg'd   17  E.  3.  and  affirm'd  by  Coke  in  C.  B.  Pafch. Jac.  And 

he   denied  the  Opinion  of  Choke  5  £.  4.  8.     21  E.  4.  46.       Cro.  76. 

5  H.  5.  3.     Co.  Litt.  21.  b. 

2.  Leafe  of  Dutchy  Lands  was  made  by  the  King  in  his  Minoii.y,  yet 
good.     D.  209.  b.  22.     Mich.  3  &  4  Eliz.     Anon. 

3.  By  the  Common  Law  the  Grant  of  every  common  Perfon  is  taken 
more  Itrong  againll  himfelf,  and  7nore  favourable  againil  a  Stranger  i 
but  Grant  oi  the  King  is  taken  more  Itrong  againlt  a  Stranger,  and 
more  lavourable  as  to  the  Kingi  tho'  the  Tning  wliich  he  grants  came 
to  the  King  by  Purchafe  or  Delcent.  Per  W'elton,  J.  PLC.  243.  Trin. 
4  Eliz.  in  the  Cafe  of  WiJiion  v.  Lord  Barkley. 

4.  If  the  King  grants  a  Manor,  Except  all  Courts  and  PerqniJiteSy 
it  is  good  ;  but  in  the  Cafe  of  a  Subject,  it  is  \oid.     D.  288.    b.  54. 

Pafch.  12  Eliz.  „  „     .    . 

5.  The  Deed  of  a  Subje£t  has  Relation  only  to  the  Time  of  the  Deli-  Vj^  p  p^ 
very,  and  not  to  the  Time  of  the  Date  ;  but  the  Charter  of  the  King  140  tit. 
has  Relation  to  the  Time  of  the  Date,  and  not  to  the  Time  of  the  De-  i^i",?- 
livery  ;  inafmuch  as  Matters  of  Record  by  Prefumption  of  Law,  im- 
port Truth  in  them.     Per  all  the  Jultices.    PL  C.  491.  Mich.  18  &  19 

Eliz.  in  the  Cafe  oi  Ludtbrd  v.  Grctton. 

6.  The  Grants  of  the  King  are  favourably  interpreted,  fo  as  no  Pre-  .Ta  if  the 
judicc  pall  accrue  to  the  King  by  Conftraciion   or  hnphcation   upon    his '^'"S  ''^"^ 
Grant,  any  more  than  he  truly  intended  by  it.     5  Rep.  56.     Mich.  3oJJ'y''s   and 

6  31  Eliz.  in  Knight's  Cafe.  hi;  Heirs 

and  ill  trmli 

|,  S.  was  his  Fillehr,  this  jl>ould  not  hifranchife  him  by  Implication.   Ibid.  And  if  tvio  art  inAehted  to 

tlie  King,  and  the  Ktn%  relenfes  to  the  One,  yetthi.s  fha'l  not  difcharf^e  the  other.     Ibid,    cites  2.  R.  ^.  4. 

21  E.  4.  46.  and  ;4  H.  6  ■ —  And  if  the  King  releafei  all  Vematidj,  this  fliall  not  relcafc  a  Ri^rl.t 

»f  Inhcritiime.     Ibid,   cites  0  H.  ;.  15.    and  11  H.  7.  10. 

7.  If  the  King  has  tzvo  Manors  A.  and  B.  and  grants  totam  illud  Ma- 
ncriam  de  A.  i3  B.  Cum  Pertinentiis  in  the  County  of  C.  the  Grant  is 
void  as  to  the  King.  In  the  Cafe  of  a  common  Perfon  both  Manors 
viould  pals.     I  Rep.  46.  a.     Trin.   42  Eliz.  in  Altonwood's  Cafe. 

8.  By  the  Words  {Omnes  terras  Doannicales  Manerii  de  W.) In 

the  King's  Cafe,  Cuilomary  Lands  held  by  Copy,  Parcel  of  the  lame 
Manor,  ihall  not  pals  ^  but  othcrwifc  it  is  in  Cafe  of  a  common  Perfon. 
I  Rtp.  46.  b.     Trin.  42  Eliz.  in  A  Icon  wood  s  Cafe. 

(P.  c) 


5  6  Prerogative  of  the  Kin 


to- 


T 


fcv-J-um  (P.  c)    Patents    ^Iloivam'e.      What    Patents    need 

^^^^^'•■S'  Allowance. 

1  H  E  Charter  of  the  King  granted  before  Time  of  Memory  is  not  of 
any  Value  now.     8  H.  6.   4.  b. 
Sec  Conu-        2+  Conuiance  ot"  Pleas  granted  before  Time  of  Memory  ij3  nOt  Of 

fance (D )    fmp  ^^[^^t  tioU),  (fit  Ijfl^  itot bccu  fllJoUJeo  fincc  Cime  of  ^emori^. 

Pl^  'cues'  8  iP>  6,  4.  13.  *  14  IX  6.  12.  b,  " 

s.  d'  3*  ?i  *5i>rant  de  Cataiiis  of  fuci)  ^m  a^  ajail  be  outiatueu  in  a  pec- 

fOItfl!  miction  belbre  Time  of  Memory,  {^  UOt  Of  m\\\Z  mitljOUt  COn= 

firmatiou.    1 1  li).  6. 50*  b* 

Br.  Patents,       ^^  cj  Releafe  of  a  Corody  bp  tlje  l^lUlJ  tO  311  WiHt  bCfOtC  CimC  Of 

p  -i  ^""  ^emot])  is  not  aiip  Difcljarge  noui,  if  it  Ijajs  not  beat  aliotneo  fince 


i^iniC  of  ^praiOrp,  tho'  the  King  never  was  feifed  of  the  Corody  alter 
the  Releale  ,  fOC  It  ijS  due  of  common  Right,  if  tljCtCbe  ttO  DifC!)arBe* 

Br  Patents,     S-  31f  tlje  £\inB  Ijan  grantcH  to  one  before  ©mc  of  ^enior^.,  that  he 

pi.  27.  cites   and  his  Heirs  lliould  not  be  impanelfd  in  any  Jury,  J)Ct  tbi0  fljall  nOt' 

s-  c.        be  an|)  Difcliargc  luitbout  $!iIoiynncc,  tijo'  be  ban  ne^cc  been  iin= 
'T^-l^^  panclicB  after luarus,  pet  be  ba^  not  *  anp  Oceans  to  compel  tbe 
^i^U^'j  ^bcnff  to  impanel  bmn    14 1)>  6.  i3»  b» 
sTpatcn^    6»  Jif  tbe  iKinij  before  Cinie  of  S^emorp  granten  to  anotbcr,  that 

pi.  27.  cites   he  and  his  Heirs  Ihould  be  difcharged  of  Toll,  tbi0  i0  nOt  anP  iDlf 

s.c.         cbarge  tnitlwit  ailoiyance*    i4i|).  6. 12. 

9  Rep.  29  a     7»  2f  a  ^an  pleabs  tbe  Cbarter  of  tbe  min?,  tiateti  before  -^rimc  f  c». 

Per  the  Re-  of  Goods  and   Chattels  of  Felons,  tben  be  lliai'  ptefinbe  tO  b^^e  it 

porter.       jjjjfjj  jj  Confirmation  after  Cinic  $c*   li^el*  ^A).  8. 190. 

8.  Jf  a  iJ^an  fljcuj0  tbe  Commencement  of  aSanauary,  fciiicet,if  be 
fl)eiu0  tbe  itctterss  patents  of  tbe  iSinn:,  anQ  tbe  Bulls  of  the  Pope, 
HateO  before  Cime  $c.  tbcn  be  may  preicribe  uiitb  Confirmation  afcec 
Cime  fu  but  otberwife  not*   s  p,  k  190* 

*  Orig.  is  9-  It'  Charter  *  of  Exemption  of  Jury  ^  or  the  like,  ht  peivn  in  the  Time- 

(D'execu-     of  the  fame  King  zvho  granted  it,  there  needs  no  Writ  of  Allowance.    Per 
tipn.)  Opinionemi  but  Brooke  makes  a  Qu^re.      Br.  Patents,  pi.  84.  cites  39 

E.  3.25.. 

10.  King  H.  2.  founded  the  Abbey  of  .St.  Bartholomew  in  London, 
and  granted  that  they  poii Id  be  as  free  in  the  Church  as  the  King  was  in 
his  Crown.  It  was  faid  by  Ibme  that  the  King  was  not  barr'd  of  Corody 
and  Penjion  by  fuch  general  Words,  becaufe  they  are  incident  to  him  as 
Founder.  Hody,  Trelliam  and  Portington  held  the  Grant  good ;  and 
Portington  held  it  good  without  Allowance.  But  Pafton,  June  and  Vamp 
held  it  not  good  without  Allowance.  Br.  Patents, pi.  27. cites  14  H. 6.  12. 

11.  What  can't  pafs  without  Charter.,  is  not  good  without  Allowance 
in  Eire  j  but  otherwile  it  is  of  a  Thing  lying  in  Prefcription  without 
Charter  i  for  Ufage  maki.s  it  as  Lcets,  Waifes,  Strays.  Per  Coke  Ch. 
J.  Roll.  R.  194.  in  Cafe  of  the  King  v.  Wray. 

12.  Grants  of  Franchifes  and  Liberties  mull  be  allowed  in  Eyre  ;  and 
fo  my  Lord  Rolls  mult  be  underftood  in  his  Abridgment.  2  Mod.  322. 
Trin.  34  Car.  2.  B.  R.  in  Cafe  of  James  v.  Trollop. 


(Q^c.)  Patents  Allowance.     What  Allowance  will  be jt?^- 

rcmptory  to  the  King. 

I*  Tjf  ailoiyan cc  bag  been  of  Conudmce  in  Eyre,  tljisi  is  rercniptcrp 
X  totbeMmu.   44  ^»  3*  is* 

2.  But 


Prerogative  of  the  King.  157 


2    But  if  ConilllinCC  has  been  allowed  in  B.  againft  the  Law,    pct 

if  attcruiarne  it  appears  to  m  Court  tljat  it  m^  not  lucH  grauteo 
before,  tljci?  oiigljt  not  to  grant  it  asatiu   44  ۥ  3-  i  s. 


(R.  c.)     Patents.    Grants.    [What]   fliall  pafs  by  general  ^K.^bK^i^^^ 
Words,  with  Reference  to  other  Perfon  or  Thing.        iJctc)^  '^ 

I  TXW^B  tf)e  Cfjartcr  of  tijc  t<m  in  general  Cernis  refers  to  a 

■  VV  Certainty,  It  coiitaiiis'  ad  crprcfs  a5cntion  as  if  tOc  CEt= 

mm m been erpref^'ti in tiie Ciiartcr, tljo' tlje Certainty  touiiiicl) 

tlir'ElefrrenCC  10,  be  not  of  Record,  bUt  l(e0  in  Averment  \iV  ^attCt  *  Sce(L.  b) 

en  I3ai5,  or  in  if  act*  Co.  10.  *  tm/kr.  64.  Kcroiuen  Co.  9-  Count  p'-  ' 

Salop  46,  b. 


(S.  c.) 


Exemptions.  SeeCF.  f) 

I  TJf  tbe  "^im  mrants  to  anotbec  to  be  exempt  of  Admiral  jurifdic-  no  E«mp- 

1  tion  ofTnmgswitlim  a  certain  Liberty,  tljlS  IS  UOt  tyOOD  UJItlj- "='"  ^' °'?  »'•- 

out  ixtbins  poiaer  to  baueanmiraljuriotitmon  tfjere  -,  tor  if  it  fijoulD  ^cT'L^  be 
be  icooD   tljere  laouib  be  ^  Failure  ot  Juihce.    Crin.  15  Car.  !>.  K.  pkadd,  buc 
between  d-W^^tidfoii.    perCuriaun   proijibitianccnieothe  p.i,ty 

in  tljis  cafe  to  tbe  Court  of  atimiraftp  upon  tljis  Eeafou,  ana  tlje  ';;^;j£z 
Court  SiD  tljat  tlji0  ws  fo  refolueo  m  tlje  Calc  ot  Cokh^rt^rt.        ^iff'^" 

Place  exemp- 
ted   in  rj.-hiit Manner  Jufiice  nir.y  he  done  ;  for  tlie  King  can't  grant  an  Exemption  without  fiich  a  Pruvi- 
lion ;  fo7-  a  total  Exemption  from  Juftice  can't  be.     Per  Holt  Ch.  J .  Skin.  68  5.  Brown  v.  Borlace. 


and 

that  a^Tenthwas  granted  to  the  K'm£by  his  Clergy,    and  the  Collec-  hold  his 
tors  upon  their  Payment  prayed  to  be  difcharged  ot  lo  i.  to  be  levied  P-'Hiamenr, 
upon  the  ReStor,  which  they  could  not  levy  by  Reafon  ot  the  Grant  ^j^?  j^y,;" 


Ve7thsand  Fifteenths  arc  at  the  Will  of  the  People;  and  thcr^ore  the  King  beft  (jpinTon 
is  not  Inheritable  to  it.     Br.  Patents,  pi.  16.  cites  19  H.  6.  62.  the  Grant  is 

fjood,  and 
that  the  Rcaor  mr.i  plead  by  Rekutier,    and  (l)a!l  not  he  compelled  to  fiie  by  Petition  of  it<  nor  to  hxvc  Writ  of 
Covenant  again!!  a  common  Perfon  upon  Yuch  a  Gran:  by  hii^i,  as  to  hold  without  Impeachment  of 
W^ift&c.  "ibid. 

a  In  Attaint,  a  Man  fliewed  forth  Charter  of  the  King,  That  he  fhjoaU^or  vovzci 
ncthefwornui  Afftze  Juries  nor  Attaints^  and  prayed  Allowance  thereot.  ^fff^^.^l^^^- ^ 
Qujere  •  For  a  Juror  upon  Attaint  ihall  expend  20  1.  and  it  hereby  there  ^^^  ^  \\ ^^ 
Ih^dl  anv  Detiult,  then  it  feems  that  the  Charter,  by  this,  ihall  be  void  ;  -'  ' 
and  it  is  iiid  that  Sir  Richard  Newton  difallowed  iuch  Charter  tor  this 
Caule,  and  {o  he  may  well  by  the  Words  ot  the  Statute  ot  iSlarlebndgc. 
14.  lir.  Exemption,  pi.  10.  cites  34  H.  6.  23  _        ,       „     ,, 

4  The  Kinc^  granted  to  the  Bsrgcflcs  of  6.,  tnac  ihey  f/joiild  not  be  m- 
fli^ded  Kpitra  ^e:r  IValls  tut  bcfrye  the  Esalifs  ot  T.  of  Th^tgs  done  tiT 
^  R  r  Ani 


58' 


Prerogative  of  the  Kins;. 


'b 


Andby  IbmetheGranc  is  void  j  For  the  King  cannot  compel  -a  Man  to 
fde  Extra  Bancum  unlefs  he  will;  But  the  belt  Opinion  was  contra  ;  and' 
that  It  J}a)uisivitb  JnjUcc  that  the  King  may  grant  Conufance  of  Pleas, 
and  fo  ol  Grant  of  Things  done  in  D.  to  be  tried  in  B.  Br.  Patents  pi.  67. 
cites  12.  E.  4.  17.  - 

D.  5i.Mai-g.  6.  The  King  cannot  grant  a  Charter  of  Exemption  to  any  Man  to  be 
pl.  I.  iavi,  freed  from  Election  of  -Kfught,  Citizen^  or  Bitrgejs  of  the  Parliavisnt  (as 
"^f  n^l'l"  ^^  ""^>  ^°  of  fome  infcriorlDttice  or  Places)  becaufe  the  Ele(ilions  of  them, 
RtMdin"-' ^  ought  to  be  free,  and  his  Attendance- is  for  the  Service  of  the  whole 
Lent  r-6°i9.  Realm,  and  for  the  Benent  of  the  King  and  his  People,  and  thi  "-xhole 
laid,  He  l-.ad  (Jumiimrjccalth  bath  an  Inttrejl  therein  ^/dnd  therelore-a  Charter  01  Excmp- 
^^':"  ^ '  ^^'^"'^  tion  that  King  H.  6.  had  made  to  the  Citizens  of  V^ork,  of  Exemption  in 
onc'tliat  he  ^'^^^  Cafe,  Was  by  Act  of  Parliament  enafted,  and  declared  to  be  void, 
fhould  not  And  tho'  we  find  Ibme  Precedents,  that  Lords  oj  Parliament  ha\  e  lued  out 
be  compeU'd  Charters  of  Exemption  from  their  Service,  in  Parliament^  yet  thdfe  Char- 
'''^l:''^/'''"''' ters  are  holdcn  to  be  void  j  For  though  they  be  not  eligible,  as  is  alore- 
%^"hf'\^d  i^id,  yet  their  Service  in  Parli.unent  is  for  the  whole  Realm,  and  lor 
he  took  this  the  Benefit  of  the  King  and  his  People,  of  which  Service  he  cannot  be 
Dirterence,  exempted  by  any  Letters  Patents.  And  if  he  hath  Lcefam  Pkantajiam^ 
SuchThings  j^j.  jjg  extremely  lick,  or  the  like,  thefe  be  goodCaufes  of  his  Excufe  in 
Kiv'tr^to^^"^  not  coming,  but  no  Caufe  of  Exemption;  for  he  may  recover  his  Memory 
make.aMo  and  Health  (Sec.  So  as  the  faid  Precedents  were  Grants  de  Faflo,  not  de 
be  a  jud^-e  Jure ;  for  if  the  King  cannot  grant  a  Charter  oi  Exemption  from  being 
°''^\'8[^^'  of  the  grand  Aliife  in  a  \\'rit  ot  Right,  or  of  a  Jury  in  an  Attaint,  for 
Uty  di'iMife  '^'^^  Mifchief  that  may  follow  in  thole  private  Aftions;  a  fortiori,  he  can- 
■n'ith  ;  But  of  not  grant  any  Exemption  to  a  Lord  of  Parliament ;  For  his  Service  in 
luch  '^'hings  Parliament  is  publick  for  the  whole  Realm.  But  if  any  Lord  of  Parlia- 
as  arc  in  the  be  fo  aged,  impotent,  or  lick,  as  he  cannot  conveniently,  -without  great 
flfpToth  J^^ngi^rj  travel  to  the  High  Court  of  Parliament,  he  may  liave  Licenie 
tho'  the  '  of  the  King  under  the  Great  Seal  to  be  abfent  Irom  tiie  fame,  during  the 
King  fends  Continuance  or  Prorogation  thereof;  but  if  the  Rehearfal  be  not  true,  or 
the  Wilt  to  jf  j^g  recover  his  Health,  Jo  as  he  become  able  to  travel,  he  mull  attend 
or  Q)'ronei-  '"  Pailiamcnt ;  Or  without  any  fuch  Licenie  obtained,  if  he  be  fo  aged, 
to  eleft  impotent  or  lick,  as  is  aforcfaid,  and  yet  is  amerced  lor  his  Abfence,  he 
Aw^/;«o/</'e  m.ay  reafonably  and  honeitly  excufe  himieif  by  the  Statute  of  5  R.  2. 

gefs,  he  can-  ^  -r;'         r 

""7  The  King  granted  to  the  City  of  Canterbury,  a  Privilege  to  be  ex- 
Lev.  1 59.  tm^ieA  from  fervtrig  on  Juries  cut  of  their  City ^  excepting  only  in  Cafes 
.S^C.  by  the  of  Treafon  ;  and  inexprefs  Words  that  they  fhould  not  ferve  Coram  ipfo 
KirT'^v  the'^  i^t'^e  ;  And  it  was  agreed  by  all,  that  without  fuch  exprefs  Claufe,  the 
City^ofCan-  Grant  would  not  exempt  them  trom  ferving  on  Juries  in  the  Court  of 
terbury  —    B.  R.  Sid.  243.  Pafch.  17  Car.  2.  B.  R.  The  King  v.  Percival&  al. 

Raym.  1 15. 

S.  C.  •    Hard,  5S9   S.  C. 

2  Keb.  50.  8.  It  was  agreed  per  omnes,  that  thoM^  tht  Privileges  of  London  are 
p],  4.  &  54.  confirmed  by  Parliament,  the  King  may  by  his  Charter  ^fn?///  Exemptions 
pl.  14.  S  C.  j|.Q,^^  jhg,.n_  Sid.  288.  Trin.    18  Car.  2.  B.  R.  in  the  Calc  oi  Swallow  v. 

bv  Name  ot      ,       ,-,.  , •  r         1 

the  City  of     the  City  of  London.  ,,^,.  t.-^/- 

London.  V.  9.  In  Replevm,  the  Defendant  avowed  the  TaKing  as  a  Diltrcfs  to- 
Swallow.  wards  the  repairing  the  Highivays.  The  Plaintift'  replied  and  let  forth  a 
Grant  from  the  King  for  exempting  the  Lands,  \\  here  &c.  from  that 
Duty;  It  was  argued,  that  fuch  Grant  was  not  fufficient,  becaufe  it  was 
prior  to  the  making  this  Statute,  and  ib  before  any  Caufe  of  Attion,  and 
Judgment  accordingly  was  given  for  the  Avowant.  3  Mod.  96.  Hill. 
I  Jac.  2.  Brett,  v.  Whitchot.' 

10.  Exempt  Jurifdiftion  is  this,  and  Vv'as  granted  to  Cities  and  Towns 
orpCorate  for  Benefit  of  Trade ;  it  was  a  Grant  to  the  Freemen   of  fach  a 


Prerogati\  e  of  the  King.  1 59 


Cf/y  or  Town,  tbat  they  Jbonld  not  he  impkaM  out  of  their  City  or  Town; 
and  this  Grant  was  s;ood,  il"  there  were  <i  Court  in  the  City  or  Town,  to 
hold  Flea  ot  the  Matter.     IVr  Hole  Ch.  J.  12  Mod.  644.  In  the  Cale  ot 

CroH'c  V.  Smith.  ji-r^r.^ 

1 1    As  to  an  Exempt  Jiirifdimon,  that  ah:xys  is  jot  the  Benefit  and  Eale  S^  P  Pa- 
c/-^^.  i?6M^.-  within  fuch  a  Vill,  Borough  &c.  not   to  be  lued  out  ot  Hok  u,.  j. 
their  Viil&c.  And  then  Hire  they  may  :cvrj6-  that  Eeneht,  and  remove  j^^ ^^ ^,..  ^;^--^+ 
their  Caufes  to  the  fuperior  Courts  ;  And  it  one,   who  is  within  an  Lk-  CroiTc  v. 
empt  lurifdiaion,  be  tvipkudcd  out  of  it,  bis  Way  is  to  plead  it,  and  the  i,au:h. 
Lord  has  nothing  to  do  wlih  it.    12  Mod.  666.   In  the  Cale  ot  Taylor  v. 

Reignolds.  ,  ,       ,  ^ 

12.  Lord  Lieutenant  of  Middlefox  is  empowered  by  the  14  Car.  2.  to 
inflict  a  Penalty  of  20  1.  upon  Perfons  lb  and  fo  qualihcd  tor  not  finding 
aHorle&c.  to'ferve  in  the  Militia.  Ring  Cha.  2.  in  the  15th  Yearot  his 
Rci"-n,  granted  to  the  College  of  Phylicians  a  Charter  ot  Exemption 
frombearnig  or  providing  Arms  to  ferve  in  the  Miliiia,  by  which  Charter 
another  is  recited,  \vhich  was  granftd  to  the  faid  College  by  H  8.  and 
another  by  fa.  i.  exempting  them  from  feveral  Services.   It  was  ilrongly 
argued  Prok  Con.  whether  the  Ring  could  grant  Charters  ot  Exemption 
from  Penalties  ednipoftd  by  Jd  of  far! i  anient.     The  Court,  _  upon  the 
firll  Argument,  declared  it  a  Cafe  ot  great  Difficulty,  and  Conlequence  as 
to  the  Prerogative  of  the  King,  and  the  general  Right  ot  the  S>ubjea, 
and  therelore  ought  not  to  be  determined  on  a  Cale  ftated .   But  upon  this 
firll  ^r-Tument,  'the  Ch.  J.  was  ot  Opinion,  that  the  King  by  his  Prero- 
^native  could  not  dilpenfe  with  an  M\  of  Parliament  which  Avas  made  tor 
the  puhlick  Good  of  the  whole  Nation  ^  Rut  the  Queibon  in  this  Cale 
was.  Whether  this  Statute  had  divelted  the  King  ot  any  Part  ot  his  Prero- 
o-ative,   or  whether  it  was  made  to  eafe  him  ot  the  Care  ot  Arraying^ 
Militia,  and  intrufting  the  Lieutenants  and  other  Officers  therewith  j  t  or  it 
itwas,  thenit  did  not  divefc  him  of  any  Authority  he  had  belore  the  Att. 
Now  lie  was  of  Opinion,  that  this  Chartcrdid  not  exempt  the  Phylicians 
from  beincr  contributory  to  the  finding  Men  to  lerve  m  the  Militia,  tho 
probablv  it  might  exempt  them  from  Perfonal  Duties ;   yet  ic  cannot  be  in- 
terred from  thence,  that  he  might  exempt  them  trom  being  contri  jutorv  to 
others  to  perlbrm  thole  Duties  which  are  required  by  an  Aft  ot    Parha- 
ment,   efpecially   >\  here    the  Sidftf  hath  an  Intercjt   that  luch   Duties 
ihouid  be  pcrtormed,  or  a  Lofsif  they  Ihouldnot,  and  the  better  Opinion 
feemed  to  be,  that  the  King  could  not  exempt  in  luch  Cales.      That  in 
theprincioalCafe,  the  Contribution  to  be  made  to  the  finding   ^   Man 
with  Arms   to   lerve  in   the  Militia,     is  a  Charge  upon    the   Lands, 
OS  ivell  as  on  the  Perfons  of  the  Owners  ;    and  it  this  Charter  ot   Ex- 
emption   ffiould  be  good,    ic  would   increafe    the  Charge   on   all  the         ^ 
Lands  of  Perfons  not  exempted,  which  would  be  a  very  great  Damage  to  ^^^ ;, 
fuch  Perfons    becaufe  the  Phylicians  who  are  exempted  are  a  conhdeiabJe  Briage;butof 
Body  of  Men  in  every  County  ;  for  which  Realon  it  would  be  very  hard  Contnbutioa 
if  the  King  had  Power  to  leflen  the  Tax  impofed  upon  one  Man,    and  ^^^^^^^ 
charge  it  upon  another  ;  Belides  the  King  cannot  exempt  in  any  La^evjkere  ^^^^^^ ;, 
the  Suhieti  hath  an  Intenf,  As  where  particular  Pefns  are  bound  by  Fre-  fcem.;qua;re. 
feription  or  Tenure  to*  repair  Bridges,  the  King  cannot  exempt  them  trom  F.  N  B. 
repairing  ;  becaufe  all  the  Subjects  have  a  common  Benetit  topals  and  re-   -^°  ;:^4. 
pals  ove?  publick  Bridges  ,  But  ic  was  adjourned  lor  a  tarther  Argument,  ^f    -^ 
8  Mod.  18,  19  Mich.  7  Geo.  1721.     The  Cafe  ot  Sir  Hans  Sloane,  Preli-  ^ 
dent  of  the  College  of  Phylicians. 


ires  Fit.'.h. 
Aflifc  445. 
£.5. 


(T.  c.) 


1 60  Prerogative  of  the  King. 


(T.  c.)  Exemption*     To  what  Thing  it  lliall  extend. 


iTiT  tfjC  J^tng  KtantS  to  a  IMnjOp,  quod  omnia  Mancria,    &  OmilE^ 

-*■  CcrtA"  f  Onintil  jfCOtlil,  oi  the  laid  Biiliop  and  his  Succellbrs  inde  in 

pcrpctuum  libera  lint  &  quieta  of  fuch  Foreft  Of  tljC  l^mQ;  5C»  CljCT-lfljOp 

aim  ®ancrta  fua  Cctra0  $  fpomincsi  fuois  clamare  non  potcll  cfie 

fjlUCta  CC  JfOlCftil,  ClUiini  illa  quse  tempore  Conlectionis  illius  Ciiartae 
I'uerunt  in  Seilina  ofthelaidBiiliop.   18  (£♦   i«Ub»13arU    !♦ 'BlfijOp  Of 

€o^ciiti'i>  anti  litcljftclD'si  Cafe* 

2.  Jftije  Utngguant0tOan!abbOt,  'SCIjatljC  &  Homines  fui  llnt 
quieti  ab  omni  Theolonio  in  omni  Foro  &  in  omnibus  Nundinis,  &  in 
onini  tranlitu  Portaum  Viarum  &Marium,  pCC  tOtUUI  EClJltUm  ttOftritm 
&  omnia  Mercata  lua  &  Hominum  Iborum  &c.     Cl)C   itbbOt  ailD   fjlS 

^t\\  fi;aU  be  onlp  quit  €]c  J^r^ffationc  'Snjeoloim  in  a:>£nriitionibug( 

ft  CUlUtlOritbild  PCV  iprO0ta6tis  de  NeceHariis  fuis,  utin  Vi6tu,  Veltitu, 

tj  fiuiiiibuss  $  Ijoc  ad  Opus  proprium  ipfcriim  atibati0,  (I  Ipominum 
luormii,  icB  fi  piaetiictu^  abba^  aut  Ipouiincgi  fm  eniptionc^,  feu 

aDCUtHtiOnCS  fCCerint  ut  Mercatores  communes,     f  BC  COnUllUnibUSS 

^erciiniilsifis  $  Eationc  S^erdjattHiforum  facicnB*  Ccbent  Ctjcoloni= 
um,  ficut  f  cseteci  C^crcatai'eis  conniuuic0,  Ji5on  a^bnantc  Cijartn 
prseQicta* 

3.  No  Franchife,  nor  Charter  of  Exemption,  fliall  be  allcrxed  againft  the 
Ktfigy  nor  Array  flmll  not  be  challenged  againlt  the  King.  Er.  Preroga- 
tive, pi.  87.  cites  sSAfl".  19. 

Br  Patents,  4.  Grant  was  made  by  the  King  to  the  Abbot  of  C.  that  ht  fjcn'J  not 
pi.  T I.  cites  i^QqUcQqy  of  the  Tiiiths  granted  for  Chnmi  Anoj!<£^  and  Tenths  -xere 
Veni<  fS  granted  by  the  Province  of  Canterbury^  and  the  Abbot  was  appointed  to 
pl.  S:;  cites  be  Colleftor  of  it  by  the  Archbiiliop  of  C.  and  pleaded  his  Patent  in 
21  E' 4.  48.  the  Exchequer  to  be  difcharged,  inafmuch  as  this  Tenth  was  not 
The  '-/^^f/ granted  per  totum  Clerum  Anglises  For  the  Province  of  York  granted 
Cafe's  C.^-  nothing.  And  alfo  the  Convocation  granted  that  no  Perfon  privileged 
Ard  Judge  iliould  be  difcharged  &c.  but  this  js  not  to  thePurpofej  For  this 
Jenkins  lays  cannot  toll  the  Power  of  the  Grant  of  the  Kingi  And  yet  Per  Cur.  the 
this  !s  a  good  Q^.^^^  [^  good,  though  it  be  not  by  all  the  Clergy  ;  For  the  Province 
^ictCoT-  of  Canterbury  and  York  do  not  intermeddle  i  And  alio  the  one  and 
nruftions  of  the  Other  is  Clerum  Anglise  ;  For  if  one  be  bound  to  pay  20  1.  if  Men 
the  King's  ofL.  conie  to  B.  theieif  two  Men  of  L.  come  to  B.  the  Obligor  ibill 
Patents  are  a  p^y  ^j^g  20  1.  tho'  all  the  Men  of  L.  do  not  come  to  B.  and"  alfo  the 
to'him"""'"  Pt^teut  is  Ex  certa  Scientia  &  mero  Motii^  which  is  taken  moll  llrongly 
S  P.  Br.  againft  the  King ;  Contra  of  Patent  upon  Suggeftion ;  And  the  not 
Exemption.  Viewing  of  the  Patent  in  the  Convocation  Houle  is  no  Eftoppel  aguinrt 
r'_^i4-  cites  ^.j^g  Abbot ;  For  they  can  neither  allow  nor  difallow  it  there  i  And  it 
Andth'fthe  '^  "°  Matter  tho'  the  Abbot  was  one  of  them  in  the  Convocation  who 
King  may  granted  the  Tenths  i  For  this  is  Diverlis  Refpeftibus,  and  therefore 
cxennpt         the  Patent  and  Grant  is  good.     Per.  Cur.  Br.  Exemption,  pl.    9.   cites 

Clerks  from   21  E.  4.   44. 

tlie  Coilec-  ~    ^^ 

t  ion  of  Tenths,  tho'the  Bifliop  be   inheritable  to  name  Colleftors  ;  and  that  upon  fuch  Difcharge  the 

fiifhop  ou^ht  to  name  and  certify  to  the  Exchequer  another  Col Icdtor.     And   if   I e  iih  is  fo  exempted 

tjkes  iifoi  lim  tie  CoUeBicn  in  cue  Coutity,  yet  he  may  f lead  lis  Patent  as  to  another  Cciinly,  if  he   be  af- 

figned  Collector  there. Br.  Patents,  pl.  90.  cites  S.  C. 

5.  If  the  King  grants  to  one  a  Franchife  Royal,  fcilicet,  That  he 
and  his  Heirs  lliall  be  q/iit  of  Toll  &c.  If  he  dies  without  Heir  of  the 
Part  of  the  Father,  the  Heir  of  the  Part  of  the  Mother  Ihall  have  Ad- 
vantage of  this  Dilcharge.  Pl.  C.  445  b.  Pafch.  15  Eliz.  in  the  Cale  oi 
Clerc  V.  Broke  aliasCobham, — cites  49  E.  3. 

6.  Tli- 


Prerogative  of  the  King.  i6i 


6.  The  QLicen  granted  by  Letters  Patents  ro  Pelham,  that  he  Jhoald 
not  I'C  Hdi!i[t^  Conltable,  or  other  Ojjicer  orMiniltcr,  licet  cli gat ur.  Ad- 
judged that  this  Grant  ihall  not  diicharge  him,  il"  the  Queen  make 
him  Sheriff  oj  a  County,  for  the  Word  Officer  in  the  Patent,  Jhallnot  ex- 
tend to  Royal  Officers  ;  And  alio  the  making  of  a  Sheriff  is  not  by  E- 
lection,  but  by  Denomination  only  of  the  (^uecn  ;  fo  that  if  he.  have 
not  theie  Words  (Licet  climur  perrios)  he  Ihall  be  Shcriif  Held  before 
the  Treufurer  and  the  Barons  in  the  Exchequer  Chamber.  And  thev 
iaid  it  was  the  Opinion  alio  of  Ld.  Chancellor  Bromley.  Godb.  21.  p] 
28.  Palch.  25  Eliz.  Pelham's  Cale. 


(U.  c)  *  L'tbert'us.  *  Libcrrira 

in  this  PI  icc 

I-  A  O3onat(jcl'-'ctition0  of  tfic  li)arliamcnt  ise,  i^foU  3.  t!j^rcS,fch£ 
jt\  15  luci)  lactttion,  prionlTa  Dc  aitributm  petit  $l!!ocationeni  ^>nd  Pnvi- 

CO^rtiirillU  riUU'Um,  Fines,Ainerciamenta  hominum  fuorum,    Eltoveria  '''g=<  ^l''cli 
fua,  Vifum  Foreltarum  &  plurimas  alias  Libertatcs  in  Nova  Forelta  &  J"^  SuMccts 
-u      ■     \\r      J  ■       T>  ,T     ■  L  n;ive  of  the 

pro  tenencibus  m  W  oodrowe  ;  qu«  omnia   Kex  concelnt  juxta  tormam  citt  of  a 

Chartarum  fuarum  &  prteccpit  Chanceilar.  &c»  Kinc^,  asthe 

Goods  and 
Chaitlcs  of  Felons,  Outlaws,  and  the  like,  or  which  the   Subjcft   claims  by  Prcfcription,   as  V»'rcck< 
Waif,  Stray  &c.  z  Inlt.  4;. 

2.  !3nn  anionn;  tf}e  (iiit»  iMt'tions,  fol  2»  RatJitlpljits  PiparU  petit 

tjtlOO  uti  polfit  Kegalibus  Libertatibus  in  Manerio  iuo  de  H.  licut  (o- 
hannes  Gilford  coram  Rege  recognovit  6z.c  Concelfum  ell  per  Concili- 
um quod  lie  fiat  &  Baronibus  de  Scaccario  mandatur  in  foima  prie- 
dicla. 

3*  12  e.  uEot.  I^alfe*  93eml%  u  CJje  Bing;  grantfti  Remr- 

num   Breviumt0t!)CQ5lfi)0p  CC  OSiinpC  ?C»  15€,  i.  iAOt*  CljartiU. 

g^eujiu  16,  fuel)  (girantv 
4*  i\Utof  fp>  3*  sranteo  to  tlje  DiU  of  ^Ijreui^'aurp  autljoritp  to 

take  Toll  in  their  Market,  fCl!iCCt,    '^  Halfpenny  of  every  v^c.  Ct*  43 

5.  Eot.  \V\\x\*  43  €.  3.  lu  'S:i>e  €\t\>  of  lonr.on,  nnti  a?I  otljec 
Cities  ano  a^orotudjs  of  Cnglaiin  priiy,  Cljat  tetjcre  it  is  contatncn 
m  tt)c  *^icat  Cijuttcr,  t?}»it  t\)zs>  outrot  to  i)a^e  tOctr  jfrantijiif 5  U3i)ic!) 
icrre  connrmtts  iiv  tiilsa-^  l^ruijcifitov^  of  ti)e  King  to  fiufam  tOac 
Cijacge^,  auD  iimmis  ctticr^  tljepijane  ufra,  that  ndne  ihouid  fell 

Merchandizes  nor  Viftuals  at  Retail,  it  thev  were  not  infranchi- 
fed  within  the   Cities  .-ind    Burghs,  tf)e  lUfliCl} 'i1(\lgCt{rr>  IjaHC  !}atl  lit 

tijc  Ciuic  of  nil  W  li'rogcnftoriS,  aim  in  Dts  Ciiur  till  tljc  nintO  l^eac 
of  W  Ecian,  *  wljic^  luasi tijeit taken  aioa)',  to  tlic  Hnttoinn;  of  ijijs  t  o,i-  i^ 
fiiit!  Citicsi  nntJ  l^urgb^  i  tljcp  prap,  Cijat  it  plcafc  tij:  iiUmf  m  tlit£j(o.,e  Tour 
parliament  to  confirm  tiicic  jfransrlufcs  ijuantciita  tt)cjn,  uatiuitl>  f'u  toine  en 
ftantiiniT  tiic  s^tatutce  ano  ©rninances  nuinc  to  t[)c  contrary,  ano  Anicnti.-e- 
tijat  none  felt  at  Eetaii  iDitljiiUbe  wiD  Cities  anli  15urs{)0,  t  if  Ije  bCdl'sctr 
not  a  Q3an  mttancljireo  among  tljcm,  ann  chat  no  Merchant  alien  &c.)  ^^^ . 

buy  of  other  Merchant  alien  any  Mcrchandiies  nor  4:  Wares  '.vithin  the  r---^/^^.^^ 
Cities  and  Burghs  to  fell  again/    ^nflueretl,  It  i0  affcntctl,  tljat  tl)0fe  t^'"'  ^^^ 

of  LciiUfln  anb  no  otljei*  m  atEctail  JDirtual  onip,  ann  tfjis  of  tJjc  ^:^^7h>i/ 

efpecial  Grace  of  the   King  till  tl)C  liei't  J^atfiammt,   t!)at  It  OC  lUel!  (D'.i.cV) 

vuli'D  auti  ffoucrnen  in  tfjc  mean  time  to  tijc  Common  l^rofit;  ann 
if  13  tfjt  3 mention  oftije  umg,  tl^at  no  |i)rc3ul!ife  lie  cane  to  tijc 
^ilicnoi  tuijJ  ijiVoc  iTrnncljifrs  L-v  COKtcr-s  of  Uuiltp* 

ss  6,  ^  e. 


i62  Prerogative  of  the  King. 

6»    "€.  i.llot.  \t>i\u  S|9emb»5»  inDorfo,  Coninnffioii  ao  Jtv 
quirciraum  ft  nDacnmis  ifilm^  $  D^rcs  'wih  ^^  Ijabcic  DCDcac  Fur. 

Ciis  ad   Manerium  luLim  de  W.   &  Judicium   dc  Maklactori bus  ibidem 
captis  pro  Feloiiiis   &  aliis  Tranii2,rellionibus  litftis  £0  (jUOH  l3bDil0  'OZ 

(JfiafTcnburj)  ipfms  Ijujurmom  fufca^  nupcr  mnio  proftratas  itcrum 
IdJiirc  non  pcruattit 

7*  8  e.  u  Eot -i^at.  93cmb.  i.Cumr^cn,  quonUamEe!:  ^mlU 
\iximm  per  Cijartam  concaTicEumUpija  nc05ontcCaiuaa,quod  Ivr- 

rae ejus &;  homines  juijintquieci  de  Shins <?cHundred.&  omnibus  querclis 
qua?  pertinent  ad  Shiras  &  Hundred.  Excepto  Murdio  &  Thelauro,  & 
Willielmus  de  Monte  Canitio  &  omnesAnceceirores  I'ui  virtute  Concel- 
llonis  pricdicte  habuerunt  Vifum  Franci  Plegii  &Turnum  Vie.  in  omni- 
bus Terris  &  Feodis  luis  donee  nos  Vifum  &  Turnum  prteditlum  de  ho- 
ininibus  &  Tenentibus  luis  in  Curia  noftra  eoram  Julticiariis  noltris  ulti- 
mo Itinerantibus  in  Comitatu  Cant,  per  Conliderat.  ejufd.  Cur.  verliis 
priefat.  WilliLlmum  dilrationallemus  Occalione  abufus  earundem  Liber- 
tat.  Nos  nunc  Vifum  &  Turnum  prsediftum  in  Terris  &  Feodis  fuis  ilU 
rellituimus  &C. 

Pryntic-s  g.  Eot.  {5.111. 21  (£.  3.  M.  1 7*  'QCijc  Commonss  prav,  for  tijat  tljc 
Ab"  vt'^i  li'i^ncljifcg  imz  been  fa  iargclp  Qxmm  in  '3rtmc0  paflcD  bp  out;  fain 
E.  3. -No.  1-.  Icrc  tije  aiutj,  tijat  all  tljis  lanQ  10  *  aluioitall  initancfjUlQjtottje 
— *o.ig.  great  t  ^rcntoimit  antJ  eficnpfirtcnt  of  tlje  Common  Lam,  anu  m 
'^.^°r-^  wcat  ©pprcffion  of tlje  l^eopic.  \dkait  our  luru  tljc  ainn;  to  rcSram 
the  IJiilh  l'"cl)  (©raat0  foi-  tlje  time  to  ctmie*  anfuier,  Cbe  B^ms  taill  orber, 
,.f  thoi?  tijat  tlic  Irancijifc^  luljtdj  iljali  be  gtamtu  {i)au  be  inaBe  bp  go  jo 
Words.       ^iDbifcmcnt. 

9.  The  King  made  a  Corporation,  and  granted  to  the  Eailifis  and 
Citizens  their  Heirs  andSuccelibrs,?^^^  theiiailiff  and  Recorder  oi  iht  laid 
City  for  the 'tunc  beings  orfwoofttcm^  of  whom  the  Recorder  to  he  one^  Una. 
cum  biijiifinodi  aliis  Perjoms  per  vos  &c.  cid  hoc  yjffignatis^  Jhall  be  Jujiices 
of  Gaol-Delroery  for  the  faid  City^  and  that  m  Sheriffs  or  J  uliice  of  Peace, 
or  other  Miniiter  or  Commilfioner  of  the  King,  his  Heirs  or  Succelibrs 
Sec.  pall  in  the  faid  City,  in  any  Thing  therein  to  h&  done  tntermeddle 
under  the  Penalty  of  loo  1.  &c.  The  Queftion  was.  Whether  the  Juf- 
tices  of  the  General  Gaol-Delivery  of  the  County  might  try  Felonies 
committed  in  tiie  City ;  And  it  was  held  per  Popham,  Anderfon,  and 
Periam,  That  they  might,  becaufe  this  Patent,  as  to  holding  a  Gaol- 
Delivery  by  the  Baililis  and  Recorder,  is  void  j  lor  they  ha\e  no  Au- 
thority but  jointly  with  fuch  as  the  King  lliall  appoint ;  And  that  Ap- 
pointment the  King  is  not  obliged  to  make  ;  but  if  he  does  make  it 
it  mult  be  by  Patent,  and  not  otherwife  ;  and  therelbre  they  cannon 
have  a  joint  Authority  with  the  Bailiffs,  whofe  Authority  (if  they  have 
any)  mull:  arife  from  their  Patent  ;  and  fo  at  leveral  Times  i  fo  that 
the  King  is  deceived  in  his  Grant,  in  miltaking  the  Law  i  and  there- 
fore the  Grant  is  not  good,  i  And.  296.  Anon. 


See(i.  b)p!.  (X- c)  In  what  Cafes  they  fhall   be  exttnci  hy  coming  to 
''*'^'  theCro'wn. 

i.TiT  tlje  tKXWV,  wants  certain  Manors  which  are  within  his  Forelt  of  ■ 

X  ^  to  a  "Bifljop  anb  W  ^ucceflcrei,  and  grants  funi)er,  that 

r.hey  Ihall  have  the  laid  Manors  free  and  acquitted  ot"  the  faid  Foreit 

and  Pleas  of  the  Forelt  &c.  ^ub  after  tIjcfatQ  C^anors  come  into  tijs 
t}anb,s  of  tlje  Mm^  nnb  Ijc  rettores  tijcm  to  tfje  osnijop,  pet  tije 

'J3ifiio)j 


Prerogative  of  the  King.  16-^ 


a3ifljoi)  ajali  not  be  cmmt  ffomtljeiforcft  foi:tfjorea3anoi-s.  is  e,  i* 
iib.  pitrLiT;  Cijc  Qoiflja'p  of  Co\3mtrp  anti  LttcijticlD  0  Cafe* 

2.  A  Liberty  to  have  H'ycck  as  appciidaut  :o  his  Manor  Hull  be  extinct  Sc  a  Liberty 
by  i/c/^t^if  to  the  King.  Keilw.  137.  b.  Itin   temps  E.  3.  to  iiavc/'/eav 

'     •'  '^ 't'ii  '"- 

fangtbief  Sec  as  appendant  to  his  Manor  fliall  be  exiinft  by  Efcheat  to  the  King.     See  Keilw.  147.  a.  b. 
Itiii.  temps  E.  3. 

3.  It  was  adjudged  in  B.  R.  that  where  a  Man  has  Rctiirna  Rrevium  S.  C.  cited 
which  comes  to  the  Kw^  by  Ihiity  of  Pojjcfjioi:  or  otherwife,  the    King  ihall  f5''!^^'"=  Ch- 
ule  it  as  well  as  his  Tenant,  or  him  by  whom  the  King  claims,  and  fo    '    '^'^"^^ 
this  Unity  otToliclfion  in  the  King  doea  not  extinguilh  the  Liberty  ;  tgj  p^^  fur- 
Quod  Nota&c    Keilv\r,    72.  a.  nerj.  Vent. 

401.  who 
Hiys  it  is  only  a  Minifterial  Thing, 

4.  If  the  King  pttnhafi's  a  Manor  to  -johich  Frdnchifes  Royal  are  regard- B\:  Inci- 
a>it,  a/hi  ^ker  gives  the  Manor  Sunn  I  cum  Libert  at.  ad  ill  nni  [pedant,  no^-nts,  pi  • 
Liberties  pals;  For  by  the  Purchafe,  the  Franchiles  of  common  Right  ^^;_^^^;_ 
was  annexed  to  the  Crown.   Br.  Extinguilhment,  pi.  32.   cites   43  All:  t^^^  jf  i,, 
10.  per  Thorp.  gives  the 

*■  Manor  cum 

Liheri/tte  ad  Hlitti  fpcclavi.  Teriipon  cjuo  M.ttierium  f/iit  in  m.-ini'oui  of  thi:  Feof.^  }  For  they  were  extiii6t 

before  as  it  feeras,  ar.d  by  him,  by  thofe  Words  they  pais  as  Appendants.     Ibid. Br.  Incidents,  p!. 

I  z.  cites  S.  C. 


s 


5.  Unity  of  Poffejion  of  Liberties   in  the  King  is  an  Extinguifliment.  When  a 
Br.  Quo  Warranto,  pi.  11.  cites  15  E.  4.  7.  feiftd  mto" 

the  Hands  of  the  King  it  is  evtinft  ;  For  it  pall  not  be  fiid  Fr.rnch'fe  in  his  Hands.  _    Br.  Quo  Warranto, 

pi.  9.  cites  I  5  E.  4.  10. For  if  I  have  Fair  or    l/.irket  of  the  Grant  of  the  King,    aiui   I  grant  it  to 

the  Kirm,  betakes  it  of  me  by  Way  of  Extin;::;uifhment.      Ibid, 

Liberties  which  the  King  would  have  hirafelf  throughout  Eigland  if  not  granted  to  of  prefjribed  for 
bv  a  common  Perfon  are  merged  in  the  Crown,  if  a  commoi  Perlbn  that  had  them  by  Grant  or  Prclcrip- 
tion  commits  a  Forfeiture  of  them,  or  they  come  otherways  to  the  King,  and  the  King  has  them  by 
his  Prerogative;  and  they  cannot  afterv/ards  bi  granted  but  by  a  new  Greatioti, ^ as //'■'«;/, ^/r.-!;-, //^r^v^ 
&V.  But  liich  Liberties  as  a  common  Perfon  has  by  Grantor  Prefcription  which  the  Kings  (if  fuch 
Grant  or  Prefcrlption  had  not  been)  could  not  have  by  his  Prerogative,  as  IFarren,  P.jrk/Fair,  Afar- 
ket  '■^■iih  'foil  &c.  if  thele  come  to  the  Crown  &c.  they  remain  in  ElVe,  and  are  not  extinCt  ;  For  if  the 
King  fliould  not  have  them,  by  this  Means  they  would  be  loft.  Cro,  E.  591.  Mich.  59  8c  40  Elii.  B. 
K.  Heddy  v.  Wheelhoufe. 

6.  A  Manor,  to  -ishich  Wreck  belonged  by  Prefcription,  came  to  the 
King's  Hands,  who  granted  to  A.  the  Office  of  Admiral,  with  all 
Wrecks  at  Sea,  and  all  Profits  to  the  faid  Office  belonging  ;  this  does 
not  pafs  the  Wreck  Appurtenant  to  the  Manor.  12  Mod.  259.  Hill.  11 
W.  3.  B.  R.  W'iggan  v.  Branchwaite. 


(Y.  .c)     *  Liberties.     Serf/ire.  see  Fran- 

^  ^  -^  chire(F.) 

I.    A  ^ono;  t\)t  idttitm^  of  l^arlmmcnt  is  e.  i.  tljcre  10  fuel)  a  *  Liberties 

/\  i.t?Cttti9n,  Gives  London  petunc,  quod  Rex  velit  eis  concedere  ^?j,°j       |f 
prilHnum  Ibuum,  fCiliCCt,  Majorem  &Antiquas  Libertates    Rex  non  ha- -p,',';,',-^'  ' 
bet  inde  Confilium  quia  iunt  in  bono  Statu  ut  libi  videatur,  &  hac  Vice  which  are 
Statum  non  mutabit,  ex  quo  Omnia  bene  fuerint  ut  Omnia  fint  in  Pace,  .^wient 
&  nullum  Commod.  apparet,  SaZ  ^{ 

as  Felons  Goods  &c.  the  which  if  they  are  forfeited  Judgment  may  be  of  Oufter  or  Seifure  ;  Tor  the  King 
mav  have  them  again.  2dlv  A  Thing  newly  created,  the  wkich  the  King  cannot  bane,  Asa  Corporation, 
the  which,  if  ir  commits  a  Forfeiture  and  Judijment  of  Oufter  be  given,  in  fuch  Cafe  riiere  needs  no  Sei- 
fure; for  to  what  Purpofe  fhall  there  be  a  Seifure  by  the  King,  when  he  m  ly  not  hare  it !  The  fame 
Law  of  a  Judgment  o*  Seifure,  as  forfeited  ;  for  this  amounts  to  a  Judgment  of  Oulter.  Odierwife  of  a 
Seifure  ^cuf  tie.     3.  There  are  Things  newly  created,  as  Markets  5cc.  the  which  mav  fubfifl  aJUr  Seifure 

by 


164  Prerogative  of  the  King. 

l-y  t'lic  King;  and   in   fucli  Cafe,   tlio'  Tudpnent  oF  Oulhr  be  jjiven,  tlicre  fhall   be  :i  Scifure  for  tic 
Kirg.     i^kiii.511.  Hill.  3VV.&M.  B.R.  The  King  v.  the  City  of  London izMod.iS.  S.  C. 

2.  ajuonn;  m  fliiu  l^ctttionss  of  tljc  parluimmt  of  is  e*  i.  fol.  s- 

t!jCri?l.y  UlCijJ^CtltiOll,  Libcmiccs  de  Norwich  capts  I'uerunc  in  m;uiu.s 
Ijoniini  Regis  quas  pctunc  Homines  ejultiem  libi  reltitui  i  tiicianc  finem 
pro  tranfgreHione  &  limiliter  tenetur  debicum  integraliter  quod  Alloc'a- 
tionem  qua  &  fiat  eis  ad  Scaccarium  JulUcia. 

Quia  Hornines  de  Southampton  vcrbera\erunt  Sc  vulncra\erunt  ufquead 
Mortem  Gilb.  Canon  qai  exequcbatur  Pr^cepcum  Regis  in  diita  Villa 
pro  tranigrejiione  Villa;  capta  luit  Villa  ilia  in  Manum  Regis,  &  finem 
lecerunt.     Et  firmam  fuam  exaltaverunt  ad  20  1.  per  Ann. 

3-  13  <£•  I-  KOt  if  HI.  S^nilD.  10.    Pro  Civibus  de  NorvTico,  Refti- 

tution  after  taken  into  the  Hands  of  the  King  Pro  Combullione  Ec- 

cleiife  &c. 

if  the  De  4  If  one  who  has  a  Francliife  does  mt  come  at  the  firfi  .D:rj  of  the  Eyre 

^mjh'oe      '^'^^'^  '^'^  Franchilt;  ihail  be  leifed  into  the  Hands  of  the  King,  and  he' 

f'.'llt  in  (%io  ^^1^^^  "^^^"^  ''■  ^i"^5  '^"d  Ihall  have  his  Franchife  by  Replevin.     Keilw. 

Warranto,      152.  b.       6  E.  I. 
the  Fi\t) 

cl'ifepal 
?:ot  replez 

It  Cunc.  6  E.  2 


chifepall  hefeifedinto  the  Hands  of  the  !<m(r,  and  the   Kinz  pal!  be  avjivcred  of  the  Profit,  .ind  if  he  doej 
?:ot  repleiy  them^iithin  tie  Eyre,  he  ihAlioih   the  Franchue  for  ever.     Br.  Qiio  Warranto    pi.-,   cites 


5.  AfTife  of  Bread  andJk,  Pillory  cind  'tumbrel,  are  appendant  to  Vie-jo 
of  Fraf/kpledn,  where  a  IVlan  has  it  by  Grant  of  the  King-  and  if  he 
does  mt  i/fe  Pillory  and  -Tumbrel,  he  ihall  lole  his  Franchile.  £r.  Quo 
Warranto,  pi.  8.  cites  It.  Cane.  6  E.  2. 

6.  II:  one  vouches  Record  of  a  Franchife,  and  at  another  Day  fliews  the 
Charter;  quaere  if  he  fhall  forleit  his  Franchile  by  Failure  of  the  Re- 
cord.    Keilw.  138.3.  Itin.  Temps  E.  3. 

7.  Liberties  claimed  by  one  as  appendant  to  the  Manor  of  B.  were 
feifed  into  the  Hands  of  the  King,  becaufe  the  Franktenement  of  the  fiid 
Manor  ^t-i?j  net  in  htm  ivho  claimed  them.  Keilw.  139.  b.  pi.  7.  Jtin. 
Temps  E.  3. 

8.  In  Quo  Warranto,  if  o«e  claims  Warren  as  Jppeudant  to  his  Manor 
and  another  claims  it  as  appendant  to  his  Manor,  and  makes  Default^ 
Judgment  ihall  be  that  the  Franchife  be  feifed,  but  cej/et Executio  till  the 
Inquell  be  pafs'd.     Keilw.  148.  b.  Itin.  Temps  E.  3. 

So  the  Eipcp      9.  A  Prohibition  was  awarded  out  of  C.  B.  to  the  Bi/I^op  of  Ncr-wich 
cf  Durham     and  he  excommunicated  the  Perfon  ichoferved  him  ivith  the  Writ  \  and  there- 
I'rhave'ilfch  "P""  '^'^'^  ?'"'^y  brought  his  Aaion,  and  declared  upon  all  this  Matter 
Privileges,    ^."^1  ^^he  Billiop  beitig  foiind  Guilty,  it  was  .adjudged  that  his  Temporal- 
fhat  the       ties  ihould  be  feifed  until  he  abfolved  the  Plaintitl^',    and   iatisfied  the 

of 
R. 

i,7,prifinedone  ^^"-  ^-  ^J3-   i^*)^  '""-''  rieccticnL  was  inewn  or    inn.  Zi  iL.  3.   Rot.  46. 

becaiife  he         OX  46  O. 

brcs'.pht  the 

King's  W.it  thither  ;  and  therefore  an  Information  being  exhibited  againft  him,  ami  tlu,<  Offence  prov'd 

it  was  adiudged  that  he  fhould  pay  a  Fine  to  the  King,   Et  quod  capiatur,  and  fliould  lofe  his  Liberties 

for  his  Time:  »nd  the  Entry  upon  the   Roll  is,  That  he  ftall  lofe  his  Liberties,    becaufe  Juftum  elf 

ijtiod  punietur  in  eoquo  pcccat.     Cro.  C.  255.  in  Tyndall's  Cale.  cites  33  £■  i    Rot.  loi. 

S^P.  2  Inft.        10.  In  Qiio  W-arranto  the  Writ  -sas  returned  ferved,  and  ths  Defen- 
S  p  Keihv  ^"^"^  '^''^'  '"^^  '^d'ln^t  imd  Venire  jacias  tjfiied  returnable  in  another  Term  uj'hich 
j.;9'a  pi.  5'.  ""^'^-^  returned  fer-ved,  and  he  did  not  come,  and  tberelbre  the  Franchifes  -were,- 
Inn.Tcn-i'fs  feifed i  and  tor  the  Delault  of  the   Defendant  Judgment  was    that  it 
^-  3  -  be  *  feifed  into  the  Hands  of  the  King.     Br.  Quo  Warranto,  pl.^  cites 

6.  I.  And       J-  £_    .     jQ_ 

not  that  It         "^         ^ 

fhall  be  forfeited  ;  for  it  does  not  appear  wiiether  there  be  Caufe  of  Forfeiture     And  no  .Nfan  fhall 
finally  lofe  his  L.'.ud  or  his  Fr.iixhiic  upon  any   Default,  if  h;  has  never  .^p^c.u•cd.     Bv  the  Ju^i■-t■^  of 

''b.ah 


Prerogati\'e  of  the  King".  [65 

both  Benches.     Jcnk.  14.1.  pi.  91.  cites  l  i  £.  4.  ;. But  it  was  (aid,  tliat  if  a  Man  has  nfeci  Framli/e 

<iithoitt  '/'itle,   Jutlgmeiit  fhail  be  that  he  be  cnjied.     Br.  Qiio  Wai-ramo,  pi.  9.  cites  1 5  £.  4  to. • 

But  it"  he  inifiifes  a  Franchje  tvhkh  he  has  hy  ^litle,  the  Judgment  fhall  be  that  the  Franchile  ie  feifed  into 

the  H-.tndMit  the  Kiiif;.     Ihid. *  Britton,  cap.  19.  pa^e  50.  (55)  (5-.) 

Qiio  Warranto  was  hmw^ht  for  ufn 7  certain  Libei-tie-,  v\r.  r.tin,  Markets  andCourts  ;  At  the  D.iy  of 
Return  of  tke  IP'rit  Defendants  did  not  appear.  Jt  was  aj;recd  by  tlic  wliolc  Oxirt,  that  if  they  do  not  jbe-M 
good  Can fe  in  Exciife  of  thr:r  Default,  their  Libi-rties  fliail  be  (ciled  into  the  King's  Handy,  according  to 
liie  Book  in  i  5  ii  4.  i  Roll  Kep.  92.  Tiin.  1 7  Jac.  B.  R.  The  Kin^  v.  the  ^layol•  Sec.  of  VVy^ornc 
in  Lancalter. 

1 1.  \\'r!t  of  Error  to  remove  a  Record  out  of  E.  and  the  Bailiffs  did  not  Br.  Fraa- 
fendit,  mr  come  till  the  Pliiries^  which  is  a  Procefs  ot' Concempr,  andtook  ';'3''f''. ''i"p 
D.i]  to  iring  It  /«,  and  failed  at  the  D.iy  ,  and  by  Several  their  Fi:uichilc  "■ 

Ihall  be  rdeiled,   viz.  their  Conulance  ol' Picas  j  quteic.      Er.  Rellilerj 
pi.  29.  cites  20  E.  4.  5. 

12.  The  Abbot  ot  C.  had  a  Gaol^  wherein  divcrfe  Men  were  im-  \-^   '^"^'^ 
prilbned,  and  becaufe  he  detained  fome^that  ivere  acquitted  ot" Felony,  after  "I  \  f^y\ 
r>b«r /Vw/J^/i/,  the  King  leiled  the  (jaol  lor  ever.     21011.43.      '  9  lac.in^tr 

CPior-it 

llrpiuU's  Cafe,  as  :o  E  4.  5.  b   the  Abbot  of  Crowiand's  Ca'e. 

13.  If  Steward  of  a  Liberty  arraigns  a  Man  by  Colviir  of  Infangthief^ 
and  adjudges  htm  to  Deatk^  the  Liberty  ihall  be  ieiled  by  chis,  but  the 
Steward  Ihall  lufler  no  Painj  for  he  did  it  Colore  Libertatis,  and  there- 
lore  no  Felony  i  quod  nota.     Br.  Coronc,  pi.  173.  cites  2  K.  3.  9.  10. 

14.  If  a  Vilibe  incorporated  by  Letters  Patents  before  Time  of  Memory,  ><on-urer  of 
and  thofe  Franchifcs  never  itfedjince  7'une  of  Memory^  they  have  loll  their  '' ^''""'O' 
Franchiles.     Br.  Franchife,  pi.  10.  cites  14  H.  7.  i.  PerVa\iibur.  terwine  it,' 

nor  any  Pre- 
fcription  which  goes  with  it.     Arg.  Godb.  2;S.  Mich.  1 1  Jac.  C.  B    in  Cafe  of  Cowper  v.  Andrews. 

15.  li  a  Lord  does  not  tnake  Hue  and  Cry  within  his  Franchife^  Lord 
Coke  fays,  it  teems  that  he  Jh.ill  lole  his  Franchile  for  ever  ^  for  the 
Words  of  the  Statute  are.  That  the  King  thai!  take  to  himtelf  the  Fran- 
chife (viz.  as  tbrieited.)  2  Inll.  1731 

16.  The  Non  L'ler  of  a  F^/r,  or  Alarket,  or  Courts^  or  fuch  like  Li- 
berties, wherein  the  Subjetts  may  have  Interell  tor  the  Common  Profit 
or  Common  Juttice,  is  Caufe  of  Seizure  o'l  them  i  But  the  Non  Ufer  of 
Parks  or  Warrens^  or  fuch  like,  which  are  to  the  Proi'it  or  Pleafure  of  the 
Oiiner  ofily,  is  not  any  Caufe  of  their  Lois  or  Forfeiture.  Per  Coke,  Ch. 
J.  faid  CO  have  been  ioacijudged.  Cro.  J.   155.  Patch.  5  |ac.  B.  R.    Lei- 

cefter-Foreft's  Cafe. Aftirm'd  by  Popham  i  but  he  iaid,  it  had  been 

about  the  fame  Time  adjudged  otheru  il'e  in  the  Exchequer.     Ibid. 

17.  In  Cate  of  Preicripcion  for  Warren  within  Pore/is,  altho'  it  had 
not  been  tifedfor  divers  7 ears,  if  he  that  had  it,  had  it  by  Grant,  or  can 
prove  it  by  Prefcription,  a  Non  Ufer  is  no  Caule  oi  Forteiturc  thereof 
Relblved.  Cro.  J.  155.  in  the  Cafe  of  Leicetler-Forelt. 

18.  There  is  a  Diver/ity  where  the  Liberties  are  fubordinate  and  depend- 
ent the  One  upon  the  Other;  there  the  mifuling  and  abujing  ot  a  Liberty 
is  Forfeiture  of  all  the  Liberties ;  ^//f  otherw  ife  it  is  where  the  Liberties 
are  fevcral.  Arg.  And  Montague,  Ch.  J.  held  it  clearly  lb.  And  Do- 
deridge,  J.  accordingly  j  But  if  one  milufe  and  abufe  the  Fair,  he  for-- 
jcits  the  Court  of  Pie-po'-^ders,  becaule  it  is  incident  to  the  Fair.    2  Roll. 

I  Rep.  156.  Fiill.  17  Jac.  B.  R.  in  the  Cafe  of  the  King  v.  the  Warden 
cf  Maidenhead. 

19.  The  Franchife  Sic.  of  a  Body  Politick  may  be  feifed  or  furrendercd 
&:c.  and  the  ici'^'  itfclf  remain  untoucb'd,  as  appc'ars  in  the  '}3tfl30p  Cf 
jQCrUliClj's  Cafe,  and  more  clearly  in  the  fame  Cate  after  in  Jones,  j7lll= 
CljattI  anO  fpaj^lUOOD's  Cafe  -,  tor  Franchifcs  &c,  are  not  efTential  to  a 
CLrporacion,  but  a  Privilege  pertaining  to  it.  Skin.  311.  Hill.  3  W.  & 
M.  in  B.  R.     The  King  v.  the  City  ot  Loudon. 


T  t  (Y.  c.'  2.) 


1 66  Prerogative  of  the  King. 


(Y.  c.  2)  Pleadings  of  Letters  Patents,   Exemptions  &c. 


H 


E,  who  would  make  Title  to  a  Fra>tchife  !y  Grant  of  the   King 
mroird  III  Chancey^  without  lliewing  the  Charter,  ought  to  have 
the  Record  ready.     Keilw.  140.  a.     Itin.  temps.  E.  3. 

2.  In  Quare  impedit,  where  a  Man  is:oiild  uititle  hiuifelf  to  anJdvo-x- 
fon  bccaiife  th»  King  --joas  feifed,  and  granted  it  to  J.  and  E.  jor  Life  by 
Piitcnt,  and  after  granted  tte  Rcverjion  to  three  in  Fee  ;  there,  if  he  Civ// 
f  lead  the  firfl  Patent  or  Grant  fr  Ltfe^  he  ought  to  pew  certJinly  the  Date 
andtheicar,  Day^  and  Place ;  for  if  the  other  will  fay,  Nal  tul  Record^ 

^j^^,"g! £^;,j_  it  cannot  be  cercitied,*  [nor]  exemplified,  if  he  does  not  plead  it  cer- 
ons  of  Brook  i^^i"-  Per  Prifc.  But,  Per  Danby,  in  fulhces  to  lay  and  plead  the  Pa- 
the  Word  tent  of  the  Grant  ot  the  Rev  erlion  in  tins  Form,  Sc.  That  the  King^ 
(Ne)  is  in-  ly  hi^  Letters  Patents^  bearing  Date  &c.  reciting^  th.-.t  where  he  had  granted 
the  hrtrer  E- ^^'^  ^^^■TO-.i^/of/  to  J.  and  E.  fur 'Term  cf  Lije,  \\q  granted  the  Reverjiun  to 
dition  u  iso-  ^^^'^^  "^  F^^t  "'^^^  granted  it  to  the  Dejeiidant  &c.  and  then  well  ^  But,  Per 
mitted  Prifot^  if  he  will  plead  the  firll  Patent,  he  Ihall  plead  it  certain.     Br, 

Pleadings,  pi.  58.  cites  38  H.  6.   35. 

3.  In  Aliile  upon  Grant  of  the  Ojfce  of  Clerk  of  the  Crown  in  Chancery 
he  need  not  Ihew  it  there  was  fuch  an  OlBce  at  the  Time  of  the  Grant, 
or  not ;  For,  Per  Cacesby,  the  King  by  this  vV^ord  (Conccfftinus)  may 
grant  an  Oilice  which  had  Elfe  before  >  but  by  thofe  W  ords  (Conflitmmus 
&  Ordinavmns)  he  may  make  an  OlHce  and  Olficer  which  had  not  £fle 
before.     Br. Patents,  pi.  21.  cites  9  E.  4.   ir. 

4.  A  Patent,  or  Record,  pall  not  be  pleaded  by  Rehearfal,  but  by  Matter 
in  Fail.     Br.  Pleadings,  pi.  no.  cites  21  E.  4.  44. 

5  Le.  193.         5.  In  Trefpafs  the  Defendant  jujlijied  the  Taking  as  his  proper  Goodsy 

pi.  240.  cites  a^nd  pleads  a  Ipecial  Juftification  ;  the  Plaintiif  >"t/)//Viy,  and  made  T.tle  to 

Kam-^oY       ^^^  Goods  by  a  Seizure  i  tor  that  the  King  by  Letters  Patents   dedit  & 

Barn's  Cafe,    conceifit  to  the  Town  of  L.   Liberty  of  a  Market  &c.  and  Ihewed  a  fpe- 

cial  Caufe  of  Seilure,  as  an  Officer  there  ;  and  upon  Demurrer  the  Piain- 

tirt' had  Judgment.     Error  was  brought,  and  ic  was  affign'd  for  Error, 

becaufe  the  Plaintiff  had  made  a  Title  by  Letters  Patents^  but  did  not  fay^ 

Sub  niagno Jigtllo  Angliae  confefl:as ;  And  this  was  held  clearly  an  Errors 

tor  if  the  Grant  was  not  under  the  Great  Seal,  it  was  not  good  i    and 

tho'  he  faith,  that  it  was  inroll'd  in  Chancery,  ytr  this  is  not  good^  for 

any  Patent  may  be  iuroll'd  there,  and  theretore  tlie  Judgment  was  re- 

vers'd.     Cro.  E.  117.  Mich.  30  &  31  Elii.  B.  R.  Kingdon  v.  Barne. 

6.  King  James  by  Letters  Patents  inroJled  in  ^.^.  granted  to  the 
Earl  of  Southampton  all  Deodands  withm  the  Manor  of  Titchiield  i 
an  Inquifition  was  certified  in  B.  R.that  aDeodand  was  forfeited  within 
the  Manor,  and  Procefs  went  out  &:c.  Upon  a  Motion  in  Behalf  of  the 
Coheireffes  of  the  Earl,  for  the  Direftion  of  the  Court,  VV  hether  they 
ihould  be  oblig'd  to  fet  forth  their  Title  in  Pleading,  which  would  be 
inconvenient,  and  the  Charge  exceed  the  Value  of  the  Deodand,  the 
Court  laid.  That  if  they  could  fatisfy  the  Office  of  thsir  Title  without 
pleading  tt,  that  fliould  be  fufficient  //;  regard  the  Letters  Patents  were 
mrollea  inihis  fame  Court,  i  Vent.  142.  Tria.  23  Car.  2.  B.  R.  Earl 
of  Northampton's  Heir's  Cafe. 


(Y.C.5; 


Prerogative  of  the  King.  167 


(Y.  c.  3)  Pleadings  of  Letters  Patents  of  Grants,  Ex- 
emptions &c.  And  in  what  Cafes  there  niuft  be  Pro^i 
fcrt  or  Mor/jhance  of  them. 

I.  T  F  a  Gift  in   'fail  be  by  the  King  ly  his  Letters  Patents^  which  is  The  King 
y_  executed^  yec  the  Heir  IhiiU  not  h.ivc  Fonnedon  againlt   the  Let- -^'"'"j '^'l  ^'"^ 
ters  Patents.     Per  Martin,  clearly.     Br.  Monlbans.  pi.  2.  cites  2  H.  j^"„j  °„  cflfi 

6.     14-  and  after  in- 

tei.ded  to  give 
it  to  him  in  Fee-SinipU,  and  to  extihirutp  the  TaU  ;  and  it  was  doubted,  that  the  Surrender  of  the  Let- 
ters Patents  of  the  Tail,  and  the  Cancellinc;  therLof,  and  of  the  I:irollrnent,  and  Bill  a!iign'd  would 
not  extin^uifll  the  Tail  ;  for  the  I'.iil  exe.  uted  may  be  averr'd  v.  ithout  Ihewir'g  the  Patent,  and  Formi- 
don  lies  after  the  Tail  executed,  without  (hewing  the  Patent.     Br.  Patents,  pi. ;?;.  cites  52  H.  S. 

2.  Where  a  Man  brings  Debt  agatnjl  the  Ciiflomer^  or  Debt  is  affigned 
to  him  to  be  paid  by  the  King  and  'Tally  of  Kxchcqiier^  he  need  not  Ihew 
this  Tally  to  the  Court  upon  his  Declaration,  as  in  Debt  upon  Obligation; 
for  the  Debt  does  not  ariie  only  by  the  Tally,  but  by  the  Aifigninent  by 
the  Record,  and  the  Tally  is  only  to  deliver  to  the  Cultomer  to  take  Al- 
lowance of  it  upon  his  Account.  Nota,  Br.  Monlbans.  pi.  8.  cites 
27  H.  6.  9. 

3.  A  Man  c^x\\  juffify  as  Servant  of  the  King  without  Ihewing  Pa- 
tent.    Br  Aid  del  Roy.  pi.  12.  cites  33  H  6.  29. 

4.  If  a  Man  pleads  Letters  Patents  tn  the  Court  where  they  are  inr oiled .y  *^  S-  f-  Br. 
the  Party  may  plead  them  *  without  il^ewing  Deed,  and  it  is  fufficient,  '"^'PS";- pl 
not-Jiithflanding  that  they  were  never  pleaded  iejore  ^  quod  nota  i  Per  the  £  ^  ,^  "  ; 
Juftices.     Br.  Monilrans.  pi.  124.  cites  21  E.  4.  4S,  49.  6.  f  Bat  if 

retcrdad  in 
anv  other  Court,  he  muft  plead  them  with  a  Pro'ert  in  Curia,  or  the  Exemplification  of  them  u.idcr  ihs 
Great  Sea],    Per  Holt.  2  Salk.  4517.     ilcbcns  v.  Arthur. 

5.  Note^  If  a  Man  pleads  Letters  Patents  made  to  the  Abbot  of  St. 
Alban's,  that  he  fiall  make  Jufiices  of  the  Peace  inithin  his  Liberty^  and 
that  no  other  Jiijlices  frotdd  ititermeddle  there  ;  and  that  he  was  tfidicfcd 
there  bejore  the  Jujltces  of  the  Peace  of  the  County^  who  flit  within  the 
Libercy,  and  therefore  a  void  Indiclment  j  Per  FineuK,  Chief  Jult.  he 
Ihall  not  Ihew  the  Patent.  Br.  Monitrans.  pi.  172.  cites  13  H.  7.  14  & 
so  H.  7.    6. 

6.  Where  a  Man  is  a  Stranger  to  the  Patent,  and  does  not  claim  any  Gnir-.vhtrc 
^hing  VJitbin  it,  nor  doss  any  A:i  in  R'gbt  nf  the  Grant,  he  Ihall  plead  the  |'e  <'''''«.' -'^y 
Parent  without  lliewing  it  -,  Per  Pollard.  Br.  Monltrans.  pi.  172.  ^^^'^^'J"%ii;Js  by 
13  H.  7.  14.  and    20  H.  7.  6.  theGiantlb. 

7.  Formedon  o^  a  Gift  of  Land  by  the  King  by  Letters  Patents. 
Fifher  faid,  If  a  Man  lofes  his  Letters  Patents,  he  may  have  new  Letters 
Patents  out  of  the  Chancery,  if  he  Ihews  to  the  Chancellof  that  he  has 
loll  them,  Qusere  inde  ;  tor  it  feems  that  he  lliall  have  only  a  Conjlat, 
et  non  negatur  ibidem.  But  'twas  admitted  upon  the  Argument,  if  he 
iliews  the  Letters  Patents  of  the  Gift  of  the  King  or  [does]  not,  but 
[Ihews]  that  he  has  loll  his  Letters  Patents  and  has  a  new  Patent,  thac 
is  intended  a  Confiat,  as  it  feems  to  me,  that  in  thisCaie  it  j^^altferve  him  to 

y&ea'or/j/e^.'/ as  well  as  the  firil  Patent.  Br.  Patents,  pi. 58.  cites  22  H. 7. 12,11.. 

8.  In  'Trcfpafs  the  Defendant  faid,  that  the  Place  where  &c.  was  10  Acres  s.  C.  cixd 
of  Land,  of  which  the  King  inas  feifed  in   Fee  in  Right  of  his  Crown,  'o  Rep  92.0. 
and  by  his  Letters  Patents  granted  the  Land  to  the  I^idy  Carcj;  for  Term  ^'V^.^i-^"^' 
of  Life,  who  leas'd  to  the  Defendant  jor  Tears,  and  averr'd  the  Life  of  the  'ft).;^-^  Caic" 
Jirfl  Lefe:,  and  io  jultificd  ^  and    it   was  moved,    if  the   Plea  be  good 
without  Inewing  tnc  Leiters  Patents  oi    the  King;    and  it  was   held 

clearly 


168 


Prerogative  of  the  Kmg. 


clearly  by  Knightly,  Montague,  and  Fitzherberc,  that  he  ought  to  fhew 
the  Letters  Patents.  But  Browne,  Willowbv  and  Baldwin  econtra. 
And  it  feenicd  by  them,  that  there  is  a  Diverjity  when  the  Grantee  vji 
the  Kiug  gra/its  over  i^Il  bis  I/itcreJl  i  lur  there  the  Patent  belonga  to  the 
Grantee,  and  therefore  he  fhall  Ihew  them  ;  but  when  hegri-ifits  only  Par- 
cel^ it  is  otherwife  &c.     D.  29.  b.  pi.  199.   Hill.  28  H.  8.  Anon. 

9.  It  was  en;i£led  Anno  4  H.  7.  cap  9.  That  no  Man  jhould  convey  Wine 
into  the  Realm  cut  of  Gafcoignc  but  in  EnglijD  Ships  8cc.  and  where  the  Maf~ 
ter  and  Mariners  "jucrc  Englilh  &c.  upon  Pain  ot'  Forlciture.  And  H.  8. 
granted  Licence  to  3l  Man^  Anno  g.  That  he,  his  Deputies,  Factors,  or 
Ajligns,  might  cvnvey  &c.  in  any  Ship  whatfoever,  Non  Otjiante  the  faid 
Statute^  600  Tiinn  of  Gafccign-Uinc,  without  inentiomng  any  Thing  of  the 
Mariners  &i.c.  And  by  the  Statute  made  Anno  32  H.  8.  cap.  14.  it  is 
enaSed,  that  the  i'aid  Statute  ihall  Itand  in  full  Foree  and  Virtue,  ib 
that  trom  henceforth  no  Perfon  ihall  attempt  to  do  contrary  to  the  Tenor 
and  Elfeft  thereolj  upon  the  Pain  limited  in  the  faid  Statute.  And  one 
R.  was  fued  bv  Inlormation  in  the  Exchequer  tor  40  Tunn  imported 
into  the  Realm  Centra  Formam  &c.  R.  pleaded  this  Licence  as  Ajfignee 
for  the  4oTunns,  ivithout  Jhewing  the  Patent  of  the  King,  and  aljo  without 
pewing  Deed  of  JJfignmoit  ■■,  but  he  averr'd  by  Prefcription,  that  there  is 
a  Cujtom  among  Aiachants^  that  he  who  has  ftuh  Licence  may  ajftgn  it  by 
Parol  &c.  without  averring  the  Life  of  the  Jirji  Gravtee.  And  upon  this 
Plea,  it  was  demurr'd  in  Law.  And  by  the  bell  Opinion  the  Plea  is  not 
good  without  iliewing  the  Letters  Patents.  D.  54.  a.  pi.  17.  Mich.  34 
H.  8.     Richards's  Cafe. 

10.  The  Patentee  oi  the  Queen  made  a  Leafe  ot  the  Lands  to  another. 
Per  Periam,  J.  the  Leflee  ought  to  Ihew  the  Letters  Patents,  for  he  de- 
liveth  his  Intereft  therefrom  ^  and  he  laid,  that  if  any  Books  were  agaiijft 
his  Opinion  it  was  marvellous.  Godb.  iii.  pi.  133.  Mich.  28  &  29 
Eliz.  C.  B.  Anon. 

1 1.  Iho''  the  Patent  is  in  Court ^  yet  it  ought  to  be  pleaded  with  a  Hie 
in  Curia  Prolat.  3  Bulll.  58.     Trin.    13  Jac.     The  King  v.  Capell. 


Rr.  Grants, 
pi.  Sv  cites 
1  H.  8.29. 
That  Brian 
held  the 


'Tfi^^V;^  (Y.  c.  4.)     Grants  to  the  King.     Wont  mafy  he  gi-anted 

or  aJJ'ig7ied  to   him. 

I.  T3  RCOKE  makes  a  Qusere,  If  a  Man's  Beajls  are  diflraind,  if  he  may 
Ij  give  them  to  the  King   before  he  has  replevy'' d  them  ^  and  fays,  Ic 
feems  he  cannot.     Br.  Prerogative,  pi.  36. 

2.  If  a  Man  gives  Land  in  Tail,  Cum  ominibus  olliciis  ea  tangentibus, 
or  gives  to  J.  S.  an  Office  with  all  Lands  to  the  fame  belongings  the  Re- 
mainder to  the  King  in  Fee  ;   This  is  a  good  Remainder  (tho'  the  King 
cannot  be  Ohlcer  to  any  Man)  becaufe  he  may  grant  it  over.     Br.  Done. 
Giant  of  an  pi.  51.  cites  I  H.  7.  31.     Per  Brian. 

Difice  of  Fo- 
rever in  like  Manner  in  Tail,  Remainder  to  the  King  in  Fee,  is  not  good,  becaufe  he  can  be  OScer 
to  no  Jitan  ;  But  that  the  whole  Court  held  the  contrary  for  the  Reafon  above,  and  that  the  Office  may 

be  forfeited. Grant  of  an  Ofce  is  good  to  the  King,  tho'  he  car.mt  he  an  Officer  ;  for  Office  may  be 

forfeited  to  him,  and  he  may  gvuntover  the  Office;  and  fo  of  Annuity.  Br.  Prerogative,  pi.  U).  cites 
1  H.  7.  29.     Per  tot.  Car. 

Br.Recogni-      ^  The  King  cannot  receive  a  Surrender  of  Letters  Patents  to  himfelf^  nor 
Mi^e.  pi. 1 9.  Recognizance^  but  the  Chancellor  or  other  "Jultice  ihall  do  it.     Br.'  Prero- 
gative, pi.  135. 

4.  P.  was  CulleBor  of  the  Subfidy  granted  bv  Parliament,  and  by  rea- 
fon thereof  w/rj  indebted  to  the  ^iieen  ;  and  one  B.  being  indebted  to  him^  P. 
affign'd  the  faid  Delt  to  the  J^ueen  for  Parcel  of  her  Debt ;  upon  which 
Proccfs  ili'ued  out  againft  B.    And  now  at  the  Return  of  the  Proccfs,  it 

w.ts 


Prerogative  of  the  King.  169 

was  moved  in  Behalf  ol  P>.  that  the  Alfignment  was  not  good,  lor  that 
m  JD'tgnmait  of  Debt  to  the  Qiieen  is  c^eciiial  where  the  Goods  and  Lands 
of  the  Queen's  Debtor  are  fuffictent ;  But  here  Conltat  de  claro  that  P.  is 
iiifficient.  And  Per  Fenner,  there  is  not  any  Authority  in  our  Law  for 
i'uch  Aliignnients  oi  Debts  to  the  Queen.  4  Lc.  80.  pi.  170.  29  Eliz.  in 
thcExchequer.      Pigot's  Cafe. 

5.  li'  J.  he  bound  to  B.  bv  Obligation  with  Condition  for  the  Pcrjcrin~ 
ance  of  Ccvenants,  altho'  the  Covenants,  or  Ibmc  of  them,  be  lor  the 
■Payment  c!  AJoney,  yet  the  Alfignment  offuch  Bonds  to  the  Queen  ftall 
not  be  received  ^  and  if  it  be  allign'd,  it  Ihail  be  put  out  of  Court  j  lor 
»o  Bonds  piill  be  ajfi^n^d  as  above,  but  llich  as  are  made  for  the  Payment  of 
Money.  4  Le.  9.  Aiich.  33  Eliz.  in  the  Exchequer.  Sir  John  Hawkins 
V.  Chapman. 

6.  yi.  and  twehe  others  were  pc[refs''d  of  diverfe  Trees  by  the  Grant  of 
the  Owner  of  the  Soil,  and  the  laid  ji.  for  and  in  Satrsfacfion  of  a  Debt, 
which  he  ow'd  to  the  Jj^iitrn,  ajftgnd  to  her  by  Deed  inroU'd  all  the  Trees ; 
and  the  Queftion  was,  li  the  Queen  lliould  have  by  this  AHignment  all 
the  Trees.  Coke,  for  tlie  Deiendant,  did  agree,  that  where  the  Queen 
came  to  an  entire  Thing  bv  A£t  in  Law,  as  Attainder  or  other  Act  in 
Law,  Ihe  by  her  Prerogative  ihall  have  the  whole  ■■,  but  where  iLe  comes 
to  have  Part  of  the  Chattle  by  the  Grant  of  a  common  Perfon,  he  by 
his  Grant  flrall  not  prejudice  his  Companion  ;  and  theretore,  in  that  Cafe, 
the  Q^ueen  fliall  not  have  her  Prerogative.  Quaere  of  this  Difterence. 
The  Barons  did  not  fpeak  to  the  Cale^  but  they  faid  it  was  ftrong  againlt 
the  Defendant  ;  and  they  gave  him  Day  to  take  Advice,  if  he  could 
fay  any  other  Matter.  Cro.  E.  265.  Aiich.  33&34Eliz:.  The  Queen 
V.  Fairclough. 

7.  A  Man  reco-jer''d  Damages  in  an  Action  on  the  Cafe,  and  he  ajjign'd 
Parcel  of  this  Debt  to  the  ^ruen  beiore  Execution,  and  the  Queen  there- 
upon brought  a  Scire  facias.  JMan.vood,  Ch.  B.  and  all  the  Court  held 
clearlv,  that  Parcel  or  a  Moiety  of  this  Debt  could  not  be  alfign'd  over 
to  the  Queen.     Ow.  2.     The  Queen  v.  Allen. 

8.  7  fac.  cap.  15.    No  Debt  JhaU  be  aj/ign'd  to  the   King  by  ^^c.  any 

Debtor  or  Jccomptant.,  other  thanfuch  Debts  as  did  before  grow  due  origin-  ^  was  boun<3 

ally  to  the  King's  Debtor  or  Accomptant,  bona  fide.  ^e  ^f^^  { ^^ 

All  Grants  and  Alpgnments  of  Debts   to  the  King  tV.  contrary   to   r/ji?  C.who  dyirg 

true  Intent  of  this  Acf,  pall  be  -void.  Inteftate, 

Adniiniftra- 
tion  was  committed  to  lik  Wife,  ivlio  married  F.  ivhich  F  became  bound  with  others  to  the  Kinj;  in 
6co  1.  and  then  he  and  i:is  Wife  did,  by  Deed  inroli'd  in  the  Court  of  ^^'ards,  affiga  this  Statute  to  the 
Kin^  for  Paymenr  of  the  laid  Debt  of  600  1.  to  the  King,  which  was  p:iyablc  at  certain  Days  after  the 
Affignment  '  And  it  wias  refolv'd,  that  this  Afligrmer.t  was  good,  notwirhftanding  this  Statute  ;  for  the 
Purpofe  of  this  Law  was,  .iiat  no  Debtor  of  theKirg  fliould  procure  another  Man's  Debt  to  be  aff.gn'd 
which  was  a  common  PraClice  ;  but  this  was  F's  o::n  Vel/t,  the'  not  f^  his  cjan  f'j'e,  w hich   he    may  him- 

felf  releafc  ard  dilcharge,  and  by  the  fame  Reafon  may  affigii.     Hob.  253.     Breadman  v.  Coales. ?. 

Cro.  J   524.  Hill.  16  Jac.  S.  C.  by  Kame  of  Fawn's  Cafe. 


(Y.  c.  5)  Grants   to  the  King.  Aided  or  Conjlrucd.     How. 

I.  34^-''  ZS  TTNacls,  that  the  King  flrall  held  and  etijoy  all  Honours-, 
H.  8.  ::i.  g^j  Lands^  and  other  Hereditaments^  which  he  has  obtained 
Jincethe  ^h  of  i-eiruary  in  the  z-jth  I'ear  If  his  Reign^  or  pall  hereafter 
obtain,  within  7  I'ears  next  after  the  making  of  this  ACi,  by  Bargain., 
Exchanie,  or  Purchafe,  nolvfithf  anding  any  Mtf-recital.^  Non-recttal.^  or 
nut  naming  the  faid  Honours  ^c.  or  of  the  Place  where  they  lie.,  or  vf  any 
Part  thereof.,  or  any  other  Matter  or  Caufe  whutfoever. 

Tie  Right  of  ethers  is  f.i'ved.,  fave  only  jur  Rents,  Sei'viccs,  and  Rent- 
fecks. 

U  u  z.  The 


I  JO  Prerogative  of  the  King, 

2.  The  Words  of  Gijts  of  Snbje^s  made    to  the   King  by  the  Par- 

liawent  liuU   be  taktn  mojt  Jinngjor  the  King  where  they  have  two  In- 

tcndiiients;  Per  Saunders  one  of  the  King's  Serjeants,  who  faid  it  was 

us  a  Rule.  PI.  C.  1 1.  a.  Palch.  4  £.  6.  in  Cafe  ol  i<.eniger  v.  Fogafla. 

The  Prior         3.      >,$  Eliz.  3.  Enacts,  t\iAt  all  yiiby  Lamiswhich  came  to  the  Hands  of 

of  M.  wu'i     }-l  8.  Jball  he  adjudged  to  have  been  in  his  aliaal  and  lawful  Poffefjion^  not- 

a!!^'^  ")•  ii"    "Withjlandnig   any  Dfett^  IVant^  or   lnfi£iciency  of,  or  in  any  Surrender, 

and'ziA'a-es  Grant,  or  Conveyance  thereof,  or  of  any  Part  thereof  made  to  the  [aid  King, 

of  Lund,        or  any  ether  Afatter  or  Caiije  ivhatfoever  "whereby  he  might  ie  intitled  thereunto. 

J  TT     q 

the  Kin"-  licenfed  him  toa  ppropriate.     The  21  H.  8.  the   Bifliop  who  was  the    Ordinary  afT^nted,  that 
at'.er  the  Church  fhould  become  void,  the  Prior  miglit  hold  it  Appropriate.     The   27  H.  S.  the  Incum- 
bent died;  lo  that  the  Appropriation  took  Ert'ect,  and   was  united  to  the  Pofleliion  of  the    Reftory  Ap- 
pvopriatc^  and  alio  ot  the  Land  out  of  which  Tithes_  were  due  to  the  !iiid  Prior  in  refpedt  of  the  faid 
Rectory.'     The  Priory  isdilTolved,  and  the  Impropriation  and  Lands  given  to  the  King  by  the   51  H.- 
S.  who  granted  the  Impropriation  to  one,  and  the  Lands  to  another.  zBrownl.j,-.   Pri.ldle  v.  Napper. 
_— S.  C.  II  Rep.  S.  b.  Mich.  10  J.ic.   The  firft  Point  was,  If  the  Appropriation  was  good  or  not  ? 
zdly.  If  it  was  not  good  by  the  Common  Law,  Whether  the  Statute  of  55  Elii.  cap.  3.   has  fupplied 
t'he  Imperfection  thereof  or  not  ?     As  to  the  2d.  Point,  (.admitting  the  faid  Appropri.ation  had  been  void) 
it  was  ob/cted,  that  this  Act  of  5  5  Eliz.  had  made  it  good,  it  being  thereby  declared,  T'L\-it  all  Manorsy 
Layiih,  femmeiits,  and  Hereditaments,  which  at  anytime  heretofore  ivere  the  Pojfejftons  of  ati  Juhy,   Monaf- 
tery,  Priory  'cT-c.  ivhich  after  the  faid  l^  Feb.  Z-  H.S.  v;ere  granted  or  conveyed,  or  mentiojied  fo   to  he  in  or 
by  any  Letters  Patents  v.'katfoe-ier  by  H.  S.  to  any  Pe<fon  &c-   uers  and  pall  be  reputed  taken,  and  adjudged 
to  haze  been  lawjulh  and  ferjeHly  in  the  aHuat  and  real  Pojjefficu  oj   the  Jaid  late  King,  and  oj  his  Heirs  and 
Succefj'oi-s,  at  filth  time  as  tie  fame  ivere  granted  by  him.     And  where  it  was  anfwered   by   the  Plaintift''s 
Counfel,  that  this  Att  of  5  5  Eliz..  cxtend.s  only  to  Letters  Patents  made  by  H.  8.  and  that  the  Letters 
Patents  'in  the  Cafe  at  Bar  were  ra.idc  by  (^ueen  Eliz.  and  therefore  out  of  the   Statute  of  55  Elii.   it 
wa.s  refolvcd,  and  fo  the  Truth  is,  that  this  Statute  extends  not  to  this  Ca<e,  but  not  for  the   Reafon 
aliened  bv  the   Plaintiff's  Counfel  ;  Fortho'  it  be  true,  that  Queen  Elizabeth  granted  the   Inlieritance 
of  the  faid  Kettory,  yet  it  appears  by  the  Ipecial  Verdict,  that  H,  8.   by  Patent  indented  had  deraif-. 
ed  the  faid  Reftory  to  W.  P.  for  21  Years,  and  this  Act  of  55  Elix.  provides,  That  all  Manors  &c. 
mentioned  to  be  granted  &c.    in  or  by  any  Letters    Patents  whatfocver  m.adc  by  H.  S.   to  any  Perfon  or 
Perfons,  Bodies  Politick  or  Corporate,  fliall  be  reputed,  taken,  and  adjudged  to  have  been  lawfully  and 
perfectly  in  the  Actual  and  Real  Pcflcffion  of  the  faid  King,  his  Heirs  and  SuccelTors.     In  which  Pro- 
vifo  four    Things   are  oblervable :  i  ft.  The  favourable   Peninng  thereof,  viz.  mentioned  to  be  grunted, 
tlio"  in  Eflcft  Nothing  palled  by  the  Grant.     2.  The  generality  of  the  Words,  firft,  in  refpedl:  of  the 
Ouality  ot  the  Letters   Patents,  viz.  in  or  by  any   Letters  Patents  whatfoeiier,  be  they   under  the  Great 
Seal,  Exchequer  Seal,  the  Court  of  Augmentation  Seal,  the  Dutchy  Seal  &c.  Secondly,  In  refpeift 
of  the  Eftate  or  Intercft  meinioncd  to  pais  by  the  Letters  Patents  without  ReffriCtion  to  any  in  cer- 
tain ;  So  that  if  they  purport  Grant  for  Life  or  Years,  the  Statute  has  as  great  Operation  aj  to  the 
Prov'ifo,  as  if  the  Patents  had  purported  a  Tail  or  Fee.     Thirdly,  the  Generality  of  the  Provifo  ;  For 
it  extends  not  only  to  make  the  Grant  good,  but  alfo  to  veft  tlie  Manors  Sec.  of  the  late  Abbots  &c. 
in  the  Actual  and  Real  Poileffion  of  H.  8.  and  likewi!'e(  fourthly  J  in  his  Heirs  and  Succeflors.     And  fo 
the  Provifo  extends  to  three  other  Cafes.     I  ft.  W'herc  any  Lands  &c.  came  to   the  Ha.nds  or  PofeJJion  of  the. 
faid  late  King  H.  S.     2dly,  Or  -which  tvere  put  in  Charge  to  or  for  his  Hrghiiefs  in  his  Court  oj  Exchequer,   or 
any  other  Court  of  his  .U.-.jeJly's  Revenue.      ^d\y.  Or  by  any  Auditor   er  other  Officer  of  the  faid  late  King. 
And  in  every  one   ofihafc  Cafes,  the  Provifo  has  as  great  Operation  as  in  Cafes  of  Letters   P.itents,. 
as  to  the  veftin^  fuch  Lands  &c.  in  the  King,  his  Heirs  and  SuccelTors ;  But  yet  it  was  relblved.  That' 
this  Aft  of  55  £iiz.  extends  not  to  this  Caie  ;  For  the  Provilo  has  a  Qualification  or  Reftraint  whicli 
has  not  been  mentioned  before  at  the  Bar,  viz.   That  in  the  laid  four  Cafes  fuch  Lands  &c.  Hiall  be  re- 
puted, taken  &c  in  the  Adual  £jc.  PoflefTion  of  the  King,  his  Heirs  &c.  at  fuch  time  as  the  fame  did 
fo  corne  to  his  Hands  or  Pofleffion,  or  were  fo  put  in  Charge,  or  granted,  or  conveyed  by  H.  8.  as  a- 
forefaid,  notivithftandiag  ift.    any  Defect  Qfc.  oj  or  in  any  Surrender,  Grant,  or  ^Conveyance  of  the  faid  Aiat- 
nors  &c.  or  any  Part  thereof,  to  the  faid  H.  8.     2d!y,  Or  any  other  Adatter  or  Caufe  -lihatj'oever  by  which  his 
Hi\hnefs  was,    or  might  have  been  intitled  to  the  fame. ^  So  that  the  Scope  of  the  ACt  was  to  veil  in  H.  8. 
all  the  Lands  &c.  which   the  Abbots  &c.  had,  notwithlfanding  the  DefeCT:s  aforcHiid.     But  if  the  faid 
Appropriation  was  void,  and  was  not  given  to  the  King  by  the  Statutes  of  Monaftcries,  then  t'le  Pri- 
or had  nothing  in  the  faid  Reftorv  befides  the  Advowfon  and  Jus  Prsfentandi.     Xof.vithftandi.-.g  which 
thisAftof  ^'jEliz.   has  great  Eft'eft  ;  For  fince  the   51  H.  8.   gives  not  to   the  King  any  Monafteries 
8:c.  but  fuch  only   as  had  been  furrendered,  granted  &c.  or  diftolved,^  this  of  5  5  has   fuppli;d  the  De- 
fect: &c.  of  a  Surrender,  as  of  an  Infufficient  Surrender,  Grant,  or  Conveyance,  fo  that    be   there  any 
Surrender  &c.  or  not,  or  be  it,  if  any,  fufficient  or  not,  the  laid  Lands  &c   are  aftualiy  veftcd   in  the 
King,  his  Heirs  See.     2dly,  If  the  Abbot  &c   had  been  dijfeifcd  Sec.  where  an  Office,  Scire  Facias,  ' 
Scifure  &c.  h.id  been  requifite  to  veft  the  PolTeiTion   in   the   King,  there  the  laft    Words,  viz.    or  any 
ether  J  fatter  or  Caufe  whatfoever  by  which  his  Highnefs  was  or   might  have  been  intitled  to  the  fame,  fupplies 
all  fuch   Means   whereby  the    King  might  lawfully    have  been  intitled  and  put  in  Aftual  PolTellioa 
But  tho'  there  be  a  Defeft  in  the  Appropriation,    yet  if  the  Ileftory  be  in  Reputation  appropriated,  and 
been  ufcd  as  fuch,  it  was  given  to  the  King  by  the  Statute   27  H.  8.  cap.  38.  or  5 1  H.  8.  cap."i  5.     Note, 
that  in  the  Statute  of  Monafteries  there  is  a  laving  of  Rights  &c.   but  the  Founders,   Donors  &c.    are 
excepted  out  of  the  Saving ;  lb  that  they  arc  bound  by  the  Body  of  t!ie  Act.  1 1  Rep.  8.  b .  11  b.  Micb, 
to  Jac.  Priddlc  v.  Napper. 

4.   43  El:' 


Prerogative  of  the  King.  1 7 1 


4.     43  £//3.  I.  En.ifls,  xh'^r.  all  Grants  made  to  the  ^uesa  Jhice  the  ^th 
of  February  in  the  z^th  liar  of  her  Reign^  (except  by  Ecc'le/iaJUcal  Perfons, 
or  Bodies  Politick^  not  having  Power  or  Ability   to  make  j'ach  Grants)  are 
■  confirmed. 

'7'he  Right  of  all  others  is  faved,  except  of  the  Parties  and  Privies  to  facb 
Grants. 


(Z.  c)   Grant  to  the  King.     How  the  Grant  may  be.     In  See  (B.  d) 
what  Caies  without  Recwd, 


■A 


C^an  cannot  grant  Land  in  Fee  to  tlje  I^ins  tyitljaut  fatter  i^  «u,  heid, 
ot  Eecom.   Contra*  soM.  u  'iV'"^-„ 

JSIan  will 

give  Land  to  the  King  ar.d  io  his  Heirs,  tlic  luhich  he  iiill  veft  in  his  Body  Natural,  and  not  in  his   Body 
Politick,  the  King  cannot  take  it  hy  Livery,  hut  it  ought  to  be  Ly  Matter  of  Record.     PI.  C.  21  5    b.  Mich. 

4  tiiz..  m  the  Cafe  of  the  Dutchy  of  Lancafter. The  Prerogative  oi  the  King  requires    Matter  if 

Rec.^rd  to  brirg  Laims  to  the  Hands  of  the  Ai?tg  as  well  a.s  to  toll  or  remove   it  from  him;  Per  all  the 
JuiHces.  PLC.  4S4.  b.  I^lich.  17  ik  iS  £hz.  in  Cafe  of  JsicholL  v.  Nicholls. 

2*  ^  90m  cannot  grant  the  services  of  liis  Tenant  in  Fee,  ot  for 

Life,  to  tije  IMuS  U3itijaut  garter  of  iAecovO*  contra.  50  M.  u 

3.  The   King  cannot  be  iiiteoiled  but  by  Deed   inrolled  of  Ivetordi  S.  P.  Br. 
For  no  Livery  can  be  made  to  him  ;  Quod  nota  bene.  jBr.  Prerogative,  pi.  I^rerogativcj 

66.  cues  5.  £.4- 7.  ^£^^.^1 

In  Quire 
Impedit    it  was  agreeH,  that  Feofftnent  made  to  the  Ufe  of  tie  King  of  a  Manor,  vefls  nothing  in  him  ;  For 
he  cannot  take  unlefs  by  Matter  of  Record  ;  For  he  cannot  have  FcofFecs  to  his  Ufe.  Br.  Prerogative,  pi. 
41.  cites  21  H.  7.  21. 

4.  No  Parlance  fhall  bind  the  King,  and  he  cannot  take  any  thing  bat  Gifctothe 
by  Adatter  of  Record^  as  by  Deed  inrolled.  Brooke  fays  Qu^^re;   For  Kn.g  with- 

•  ,  ,-  '  r\    ■    ■  u       ri  •  I  •  r^    out  Deed  H 

others  are  or  a  contrary  Upinion.  lir.  Prerogative,  pi.  70.  cites  14  £.       j       j 

4    2.  tne  lame  of 

Gift  by  him 
of  GwA  without  Deed  aslbme  held,  hut  Contra  itfeems  of  L/irrf  clearly;  and  Gift  to  the  Kinj^  of  Chattier  ij 
good  as  it  fcems  clearly.    Br.  Prerogative,  pi.  56.  cites  57  H.  6.  1 1 Br  Done,  pi.  16.  citciSG. 

5.  The  King  cannot  take  Land  by  Gift  in  Pcffl'/f/on  or  in  Remainder 
unlefs  by  Deed  inrolled;  And  otherwife  it  is  by  -way  of  Conclnjion^  As  where 
the  Tenant  in  P'ee  Simple pr.rji  yfic/of  the  King,  alleging  that  he  liolds 
for  Term  of  his  Liie,  Remainder  to  the  King.  Br.  Prerogative,  pi.  56. 
cites  I  H.  7.  28. 

6.  If  a  M-xngir-es  Land  in  fail,  the  Remainder  to  the  King,  this  Re-  Br. Relation' 
mainder  fliall  not  pafs  to  him  belore  the  Deed  be  inrolled,  and  o-'/w/ /';  pl.  20.  cites 
is  inrolled  itjhallpafs  Ab  initio  ,  and  fo  f.e  that  it  lliall  not  pais  by  Livery  ^^■ 

to  the  Tenant  in  Tail,  and  yet  it  fliail  pals  by  the  Inrolment  after.  Br. 
Prerogative,  pi.  5^.  cites  i  H.  7.  30,  31.  per  Brian  and  CoUow. 

7.  The  King  cannot  take  a  Surrender  without  Matter  of  Record  ;  Per  KeeHngfiid, 
Whiddon  and  Portman  J.  Pi.  C.  103-.  a.  Micii.  2  M.  i.  in  Cafe  of  Ful-  ^j'^^ted'"    • 
merllon  v.  Steward.  \^^^  fkiV- 

rendcr  of  a 
Copyholder  to  the  Kinc:,  Lo:n  of  a  Manor,  was  good  without  ^Iattcr  of  Record     Keb.  720-.   Palch. 
16  Car.  2.  in  Cale  of  Lee  v.  Boothby. 

8.  If  A.  makes  a  Feoffment  to  the  King  of  Lands,  which  is  not  recorded, 
the  King  takes  nothing  bv  this  Deed,  ii  zn  Ff cheat  or  finds  an  Office  of 
this  Feoriir.enc  made  as  above,  and  not  recorded,  and  returns  the  fame 
Into  Chancery ;  l^  the  Land  be  in  the  King's  Hands,  the  Chanrellor 
upon  a  Motion  will,  by  a  Superfedcas,  icllure  A.  to  the  Land.     If  the 

Kinz 


iJ2  Prerogative  of  the  King. 


King  hjs  gnuitcd  it  to  another^  a  Scire  facias  lliall  be  awarded  againft  the 
Pacentfe,  and  the  Chancellor  Ihali  reltore  A.  For  it  appears  in  the  Chan- 
cery, that  the  laid  Office,  Patent,  and  Deed  are  all  void.    Icnk   12a 
pi.  50.  •'     "        ^• 


♦  S.  P.  Biv 
Tailc&Do 
nes 
;S.  cite 


(A.  d)  irhnt  fLall  be  faid  ^  fujfcient  Record. 

^c.  pi.  i*Tif*_  Tenant  in  Tail,  or  any  other  particular  Tenant,  furrenders 
5S  cites  95  X  their  Letters  Patents  in  Chancery  to  be  cancelled,  tllCire  ncell0  liat 
ttV U  W   ^^V  OtljCaurC  UlCnt  of  tl)l3  ^ItrrCnneC  ;  ifor  the  R^^ninVbrfncemade 

this  is  not  ^  ^  '^isi  fiuaqcnt  i^ccord  to  paijs  it  totfjet^inn;.  a3icli.  42. 43,  eu  '^. 

S.C  cited  D.  2,  So  lrS:cnant  ni  Cat!  fUrrcntlCr  I}t0  CffntCper  Chartam  fuam  de 
555a- pi.  57-  Libertam  de  Rccordo  in  the  Exchequer,  tlU'S  IS  fufficicnt  intHinilf  Tn- 

judged  ac- 

cordjngly^  For  the  King  t.kcs  not  by  the  Inrolment,  but  by  the  Deed,  To  that  the  Deed  is  the  Prin- 
cip.d,  atjd  the  Im-olment  but  Tefhmonv  th.t  the  D.ed  is  of  Record  ;  And  tho'  it  is  ufually  (bid  in  ti^e 
Book.,  tha  the  King  cannot  take  but  by  Deed  inrollcd,  this  is  ro  be  intended  only  th .[  the  De-d 
made  to  the  King  be  recorded,  yet  it  is  not  fufficient  to  make  Deed  of  Land  to  the  Kincr  .nA 
caftit  into  the  Exchequer  or  other  Court  of  Record,  or  after  that  fuch  Deed  is  made,  to  leas^' i?"a 
Court    but  the  Party  ought  to  deliver  it  of  Record  in  Court,  and  to  be  Mo.f.,i  by  the'  Olfi.er    «„  ^ 

v::'I^:!'Jiiio'^i!:^:^^^  '''""'"^^  -^^'--^  ^^-  -----'^  ^-i™ 

p;lt>f  the  1^*  ^  I  a^mt  makes  Leafe  for  Years  of  Land  to  the  King,  and  after 
Leffor  to  ^^'^■^"^'iedgcs  It  belore  certain  Commilfioners  appointed  Ibr  the  fime  Pur- 
have  it  in-  POie,  and  the  Lelior  prays  that  it  be  inroUed,  and  the  Commillioners 
rolled  was     return  it  accordingly,  ^t  Xl)Z  i^m0  fljall  UU  nOtlimtt  bP  tfllS  L^ft 

veiled,  and    ^"^S*  ^^*  ^  ^'^*  -^*  ^^aCC*  Sir  Edward  Dmock's  COft*     aUjUDgeH* 
yet  it  was  adjudged  againft  the  King,  that  the  Grant  was  not  good.  See  Lane  5  i .  5  5  &  ;6  a    the  Argu- 
ments of  the  Counfcl  and    cf  the  Court  6  Jac.  and  Trin.  7  jlc.  in  the  Exchequer'  S  C  ^ 

4.   Jf  LelTeetor  the  Life  of  the  King  renders  and  delivers  up  his  Let- 
ters 1  atents  in  the  Chancery  Ad  Cancellanduni.     Cil'Q  Ul!ti)Ollt  lllOrE  \^ 

SiS"f  ??'f-  "^''^^r  "  "•"*  *  «'"i5  to  .^-^ITs.  S 

a2)lC  Kouert  fohnfon  s  ^iuC^ 
i^.^-    A-  ^  ^/'^  orCiilBarg^m  and  Sale  was  made  to  E.  6.  by  the  late  Duke 
,rEliz.A-  '^J^^°'^^''^-^^^f^^,^^^''y^sackmijvltdgedtobehirolled  belore   a  Mailer  in 
non.  S.P.But  ^-'^'^^^'^^^  ^nd  alfo  belore  the  Chancellor   of  the  Augmentations,  [and 

Land  puffer  ^uTr-A  G^'«^^fl '^o,^ed  It  might  lawfully  be  enrolled  now,  and  thereby 
without  In-   the  Lands  to  veil  in  the  Queen  as  Heir,  or  Purchafor^  and  it  feemed  by 
rolmcnt,  and  ^he  Opinions  ol  \\  ray,  Dyer,  Bell,    and  Manvvood,    that  it  cannot  be 
e.ted  theO-  to  velt  any  Intercft  in  the  Oueen,  according  to   <&  7  E  a    &  ?,r    Tir 
^elkaap°'4,  ^""'^  ^7  H.  6.  D.  ^SS.  pi.  37.   Hill.  19.  eL  don.  ^        ^^    "^   '^''  ^''■ 

St#"-  r  ^' "  r  ^'-- "  ^'^^^  -  -  .iS^d^'v:t^a;?:r:^ 

t  e  Que  n  ^^toT:  tt^  ^nrnf^Tn 'V''=  ""''^^^""A' '  r'  >'"  '^^'^  ---■  Titkf  fuSdent  fo 
tnc^^ucen,  ^^nojcth.  ,jthof  Liu.  thisCaiecanieinCiiisilion   agai.T  b;rv,eep.  :he  *    B'-'-n  ail' 


jDran  ana 

a::o;ia 


Prerogative  of  the  King.  173 


Canons  of  CUinafor  anO  SBlDDlcmorf,  and  by  the  Kcfolunon  of;ill  the  Jufticesof  tiigland,  it  vun 
agreed  tliat  the  Deed  mif;lic  be  iiimllcd  now,  and  fo  it  was,  and  lo  Middlcmore  was  o lifted  oi  his 
l"'erm  '  and  it  was  alio  debated  in  the  I'arlmmcnt  Houfe,  and  there  alio  aj; reed  accordingly  5  And  it  was 
alfo  rclblved  bv  all  the  Jufticcs  that  the  Acknowledgment  of  the  Deed  before  the  Matter  m  Chancery, 
and  the  Delivery  thereof  into  the  Augtnentaticn  Court,  doe.s  not  make  it  a  fiifiicieiit  Record  before  In- 
rolment  to  veil  the Interelt  in  the  King;  But  when  it  is  inrollcd  now,  with  another  Date,  it  vcft.';  the 
Interelt  'in  the  King  with  Relation  ;  For  all  Perfons  ar.-  tltopped  to  lay,  that  it  was  not  inrolled  a.-cord- 
inc  to  the  Dave,  as  appears  in  the  Cafe  of  ?lUtforO  U.  (IJl'tttOn,  PI  C.  419.  b.  But  the  contrary  is  held 
at°this  Diy  •  For  if  it  be  in  Filaciis,  or  any  where  anion*;  theMemominda  of  the  Exche'iuer,   it  fc.fficcs 

for  the  King-  ^-  555-  Marg.  pi.  57- "  ^JC  cited  Mo.  6- (J  pi.  920.  by  Lord  K   Kgcvton,  atid 

faid  it  was  rclblved  ufon  Contercncc,  that  the  King,  by  the  bringing  an<l  leavingot  the  Deed  in  Court, 

took  «cll  enough  without  Inrolment. Hutt.  i.Palch    15    lie.   Clombf.SH.  ^UU'OOD,   the  Court 

delivered  their  (,)pinion,  that  ifthere  was  a  Deed  by  which  the  Land  then  in  Cliieltion  was  conveyed  to 
H  S  andthat  was  brought  into  the  Court  of  Augmentation.although  this  Deed  be  not  found  nor  inrolled, 
vet  it  is  a  fufficient  Record  to  intitlc  the  King,  and  it  is  a  RecovU  by  Lei?/^  broupht  into  Quit,  ai:d  there 
leceked  to  be  inrolled ;  And  the  Report  in  D.  555.  ly.  Eli'/.,  was  not  as  it  is  there  reported;  For  it  was 
for  Borme's  Inn,  and  it  was  adjudged  a  good  Conveyance.  ,,„      -    r-,  ,  ,  ,. 

A  Deed  to  the  King  0/ certain  Land  ackmivled'jed  before  a  J  udgc,  or  Matter  in  Chancery,  and  dehtered 
ir.to  Cent,  but  7;ot  recorded  hy  the  KegleH  cj  the  hwo's  Ofuer,  is  good  to  the  King.  Jenk.  124  in  pi   50.- 


(B.  d.)     HozD  the    King  may  take  ;     where  ^vhlmt  Re-  ^'^  CZ-c.) 

cord.     Cbnttds. 

1!r  11  QSan  devife  Goods  or  Money  to  the  King   by  Parol,   pet  tIjC  If  a  Man  A- 

and  iii,hci,t  Deed  or  Tefiume^t,  the  Ki»g  upon  Suggeftion  of  this  J7.W/  have  Miov,nnd  it  was  a-zi'-rrdedhy 
Tud™ta-.dnll  W.  C.  vho  was  Executorof  R.  C.  his  Father,  who  had  deviled  his  Goods  to  theki-.;; 
bv  P'arol  tfat  Excaition  ihall  he  made  of  the  Goods  of  the  Decenjed,  in  Kkcjoever  Hands  they  Kere  jcm.d,. 
and  ag.in(V  the  Occupiers;  For  the  Oe'cy.pation  of  Goods_  of  tie  Kivg  jUll charge  Um  agao^fi  the  Kirp  and 
The  Tetbtor  had  deviled  to  the  King  looo  Marks  which  were  in  a  Cotter,  The  Executor  jatd,  Th.at  at 
theTinT-ofthe  Death  of  the  Tcltator  he  was  at  London,  v.nd  never  had occupted  ilx  Goods  ot  the  King, 
£,.t  his.ilother  hrJ.  made  full  Ahnnnftration,  and  W.  after  ler  De.th  &c.  occupied  theGcods  oj  ns  .Vctler, 
'hfuuehoc,  thai  he  occupied  the  Goods  of  R.  And  af^er  he  ^^as  examined  upon  O.ith  andconfcl  ed  &c.  that 
he  had  occunied  two  Manors,  which  R.  and  his  Father  had.  and  pid  betore- hand,  bywhich  it  j^as 
awird-d  that  the  Kin*-  have  Execution  of  the  looo  Marks  of  the  Goods  ot  the  Decealcd,  and  that  firtl 
Fvecudon  fliall  be  made  of  the  Farms  which  W.  had  confelVd,  and  the  Jvermentthat  he  had  held  againji 
ti^cnrn  Conufance ^mll  he  held  for  N.l.  Br.  Surmife,  pi.  5-  cites  40.  All.  3  5— Br.  Prerogative  pi.  50.  S.  C. 
Br.  Prerogative,  pi.  145.  cues  S.  C. 

2    If   n  Sl3ail  leafe  Land  for  Years  to  the  King  by  Deed,  tljC  it^UlS  ^"-^  t'lo"  it 

fiifliitauenotljiusbpitujityoutjnvolmcut  ot  t!)e Dccii.  33£cniifc  itci,3Kear, 

is  Real.    Ct,  8*  iia.  ^CilCC*  ^11*  A^/lu./j  </  IhMock'cj  QiM  au)ll05CD»      yet  Chattel., 

Real  partici- 
pate in  divers  Qualities  with  Inheritances  and  Freeholds  ;  Per  Bromley  Baron.  Lane.  60.  S.  C. 

3,  Lcffcc  for  Years  CaiiUOt  furrender  to  the  King  in  Rc\erlion  UJltlj^  f|,L,£i^i: 

cutDccD  invoUeO*  Lane'^i. 

ill  Sir  Edward  Dimock's  Cafe. 

4,  Wa  Billiop  leafe  Land  for  Years  to  the  King  bv  Deed  inrolled,  and  ^^^;°  ^^^^l;,^ 
this  is  confirnied  by  the  Dean  and  Chapter.  <ill)Id  Conlirmacmn  is  good  .„  j,aj„,fj,,a. 
without  Inrolment ;  -BCCmtfC  tijtS  palTCd  HO  illUn^,  lUlt  10  Otllp  ait 

CTffOit  'Sir*  8,  la*  @)CaCC*  ^ir  Edward  Diumk's  Call%  \^'V:  CUrtatlU  P"t  '  ;,?.^l' 
"  5  3t- Lellee  for  Years  of  the  King  furrendcrs  1)10  patCtit  tO  t[je  UlnB'  \\-^;^  [[^^ 
in  the  Chancery  ad  Canccllandum,  and  pa>  s  the  i'ccs  VCt  ti)C  <i;itatC  Ifj  ^  ■f,,,,..-!,. 

not  futrcnBcixti before  Eecorn  or  Dacat  luatic tijcrcof,  cntern,  i,^.  u.,rcnv6 ot 
1  u  2a«  Qi5* E*  St.  Sciviours  Cafe*  Dili*  1 1. 2\ix.  15,  JOrahm s  (bale*    ^.  ^a - 

L  »C  III  ^ 

Cafe  It  was  refolvcd,  that  the  Dcliverv  of  Letters  Patent.-:  into  Oianccrv  to  be  rancelled  by  t!ie  llardi 
ofrhe  Partv,wuhout  V\^-iting wa.s  fntficicnt,  and  as  much  .s  they  ought  to  do,  a-vl  it  bc-Iongs  to  i  .c  Lord 
Chanccllol-,  or  his  Oiliccrs  to  cancel  tiitraj  and  every  one  ought  to  do  iliac  *  Inch  to  lum  belongs. 

X  X  6.  An 


174  Prerogative  of  the  King. 

— . MB ' — — ■ ■ — 

S  P.Br.  6.   An  Obligation  maybe  granted  to  the  King  by  the  Obligee,    tho'  it 

Prci-ogauve,  j^g  .^  Chofe  en  ABwn,  and  the  King  may  bring   an  Action  upon  ir,  rho' 
?[   H.  7   ii).^"^^  Gxxntht  by  Deed  without  Inrolment.  Br.  Chofe  en  A6tion.  pi.  4.  cites 
quodfuit       21  H.  7.  19. 
concellum. 

Brooke  fays,  and  To  fee  that  the  King  fliall  take  a  Cliofe  in  Aftion  by  Grant  of  another,  and  nuiy  fiie  in 
ill  his  ovjh  Name ;  Contra  of  a  Common  Person  ;  And  lb  it  feems  that  the  King  may  takcC'hattIc  orChole 
in  Action,  which  is  not  Frank-tenement,  -without  Deed  inrolled    Br.  Prerogative  pi.  40.  cites  51  H.  ;.  ly. 

7.  An  Vfe  cannot  vefl  in  the  King  by  Will  or  otherwife,  without 
Matter  of  Record,  anymore  than  Prank-tenement,  or  Inheritance  &c, 
D.  74.  a.  pi.  17.  ISJich.  6.  E.  6.  in  a  Cafe  of  Exceptions  taken  to  an  In- 
formation. 


■•A  = 


(B.  d.  2)  E?it)y  by  the  Kt?igj  Congcahk  in  what  Cafes. 

T'enant  jor  Life,  the  Remainder  to  the  Heir  in  Ward  of  the  King.  If  A. 
_  •  liad  aliened,  the  King  might  have  entered,  and  if  a  Condition,  which 
dejcended  to  ftich  Heir,  had  been  broken,  the  King  might  have  entered  for 
the  Heir^  quod  nota  j  but  Brooke  fays,  it  feems  that  the  Matter  ought 
to  be  found  by  Office.  Br.  Entre  Cong.  pi.  126.  cites  19  E.  3.  &;  Fitih. 
Garde.  113,  114. 

2.  A  Ma.n  kafed  for  Life  rendring  Rent  with  Re-entry.  T\iQ  7'enant  com~ 
mittcd  Felony,  and  Procefs  ilfued  to  the  Exigent  j  and  AJean  bttweeu  the 
Exigent  awarded,  a7id  the  Ontlaimy,  the  Lefjor  re-entered  for  Non-pay- 
ment, and  well,  becaufe  the  King  had  not  entered,  nor  was  feifed  belore  it. 
Br.  Entre  Cong.  pi.  1 14.  cites  27  Aff  50. 

Butviheyea        3,  WhcTt  a.  Cn?nmofi  Fcifon  may  enter  Jor  Efc/'^eat  Ward,  Mortmain  &c. 

%''isZt'iT  '^^  f'"^^  Matter  hQ  found  for  the  King  by  his  Office,  the  King  may  enter. 

hi'sJaL," As  Br-  Entre  Cong.  pi. 93. cites  12  H.  7.  20,  21. 

for  Waft, 

Ceflavit,    Debt  upon  Recognizance  for  a  Condition  broken  &c.  there  if  fuch  Matter  be  found  for   the 

King,  he  cannot  enter,  but  it  is  put  to  his  Scire  facias  ;  Quod  nota  ;  per  Frowike,  Mordant,  and  others. 

Br.  Entre  Cong.  pi.  95.  cites  2  H.  7.  20,  2i Br.  Prerogative,  pi.  65.  cites  12H.  7.  19  S.  C. 

4.  By  the  Statute  10  H.  4.  the  Pojfejions  of  the  Diitchy  were  feparated 
from  the  P off effinns  of  the  Crown;    fo  that   in  all  Things  concerning  thefe 

PoffcJJions  the  King  mufi  demeane\i\m.{t\i  as  aSiibjcff,  and  not  with  his 
Prerogatives  as  King.  But  a  Difference  has  been  held  upon  the  fiid  Sta- 
tute, That  where  the  King,  as  Duke  of  Lancafier  is  to  do  any  jiiiion  infe- 
parable  in  Perfon,  there  he  iliall  enjoy  his  Prerogative  to  excufe  his  Per- 
fon  ;  But  in  Aftions  concerning  the  Poffeffions  of  the  Dtitchy,  he  ihall  ha\e 
fuch  Advantage  only  as  theDukeof  Lancallerhad  ;  therefore  upon  great 
Debate  in  theDutchy  Court,  it  was  adjudged,  That  were  the  King  made 
a  Leafe  of  Dutchy  Lands,  referving  Rent  with  a  Clattfe  of  Re-entry  &c. 
that  hemtijf  demand  the  Rent  before  he  can  re-enter.";  becaufe  it  is  a  mate- 
rial Advantage  to  the  Tenant,  that  the  Rent  lliould  be  demanded  before 
he  ihould  receive  any  Damage  which  might  happen  for  Non-payment; 

*^^-  ^^5-     And  that  Demand  is  a  Thing  which  may  be  made    by  an  Attorney.     Arg. 

iud'^ed.'       -l^o.  161.  in  the  Cafe  of  Saffron- Walden.  — cites  it  as*  Bonny 's  Cafe. 

5.  Tho'  by  the  Statute  33  H  8.  cap.  20.  the  Lands  of  Perfons  attainted 
of  1'reafon  Jls'all  be  in  Aifual  Poffe£ion  of  the  King,  without  Office  found ; 
yet  if  a  Dilleifee  is  attainted  of  High  Treafon,  the  King  hath  only  a 
Right  by  the  Attainder,  and  fhall  not  have  the  Poffeffion  v.'ichout  a  Scire 
facias,  or  Seifure  at  the  leall ;  Becaufe  when  a  Stranger  is  feifed  at  the 
Time  of  the  Office  found,  the  King  ihall  not  be  in  Polieirion  till  Seifure, 
and  with  this  agrees  Stamf.  Prerog.  54.  17  E.  3.  10.  29  Afl^  30.  21.  E.  4. 
I.  Eelides,  all  Poffiif/tons  iycanjaved  by  the fiid  Aa,  as  if  the  Act  had 

not 


Preroaative  of  the  King.  175 


noc  been  made,  and  therefore  the  Poirelfions  oiWieDiJJcifor  is  fuvcd  there- 
by, in  the  ianie  Manner  as  it"  a  fpecial  Office  had  been  found  by  the 
Comnu)n  Law.  3  Rep.  11.  Trin.  26.  EViz.  in  the  Exchequer,  the  lecond 
Refolurion  in  Dowtie's  Cafe. 

The  (-'>!!ecfi  granted  Lands  rcfewiiig  a  Fee- Farm  Rait,  isJith  a  Condition 
of  Re-ciitry  for  Non-payment^  and  afterwards  the  ^iiccn  granted  this  Rent 
to  J.  S.  in  Fee  i  the  Rent  was  behind  i  and  adjudged,  That  the  Queen 
Itiall  Not  Re-enter,  becaufe  by  that  Means  iLe  would  delcat  her  own 
Grant,  which  would  be  a  Tort  to  the  Grantee  of  the  Rent.  Cro.  Eliz. 
69.  pi.  23.  Mich.  29  &:  30  Eliz,.  Cranmer's  Cafe. 


(B.  d.  3)  Entry  upon  the  King,  or   his  Patentee.     What 

is  to  be  done. 

I.  TF  the  King  feifcs  tht  Ward  ivbicb  belongs  to  another  VcxCon^  yet  he 
cannot  enter  at  full  Age,  h\itjhall  fiie  to  the  King.  Er.  Entry  Con- 
geable,  pi.  62.  cites  26  Alf.  57.  Ptr  Thorp  &  tot.  Cur. 

2    If  the  King  be  feifed  by  Reafon  of  an  ill  Office,  the  Party  who  is  -^^  where  it 
oufted  ihall  have  AtTtfe  i  Per  Huls  clearly.     Br.  Office  devant  &:c.  pi.  7.  '^^f^w-A  that 

-'tt  ^  the  Haiant 

Cites  7  H.  4.  46.  ,///.„A-;«^_ 

died  feifed  of 
my  L.irJ,  yet  his  Heir  Jhall  have  Livers,  and  1  cannot  enter  before  Livery  ;  but  after  Livery   I  niay  h:u'C 
Ailife,  ami  fhall  be  no  longer  bound  by  the  Office  ;  tor  the  Kinx  hy  his  Serfure  Jh.zH  yiot  have  Franktens- 
wi'«/,  but  only  Chattel,  andfo  the  Fratikteiiemeat  not  out  of  the  Party  ;  and  therefore oticccf/yi;  it  fecnis  w/'crj 
King  by  Office  is  intitled  to  tie  Fee,  and  gives  it  over,  there  it  (eeras  that  the  Party  cannot  enter.     Ibid. 

3.  Where  the  Efcheator  feifes  Colore  Officii,  or  by  Reafon  of  an  Office,  So  where  it 
which  is  infiifficient,  and  does  not  intirle  the  King,  As  byOiitla-jvry  in  an  i^  found  that 
Atfion  Pcrfoaal  &:c.  there  the  Entry  of  the  I'enant  is  llifficient  upon  the  ^'^^  '^j'°  " 
Efcheator  ;  for  the  King  ought  not  to  fcife  bat  io  take  the  Projits.     Br.  En-  °'cTre'fp.fs',"ias 
try  Congeable,  pi.  i.  cites  9  H.  6.  20.  fdfed  of 

my  Land, 

and  he  enters,  I  may   ouft  him.     Ibid. Ci)«<)-/i  where  the  Efheator  feifes  by  If^rit  ivhere  the  Kinr 

has  no  7itlc,  there  the  Paj-ty  cannot  enter;  note  the  Divcrfity.     Ibid. 

4.  Where  the  King  is  iutitkd  by  do/die  Matter  of  Record,  a  Man  has  no  -^<  ^^^  ^^^^ 
Remedy  unlefs  by  Petition.     Br.  Entre  Cong.  pi.  icS.  cites  10  H.  6.  15     ^'f,^t>'''>!''^< 

J  J       ->  or  oi  7  rc,'_/i7.'  or 

Felony,  and  it  \sfcund  by  Ojficc  that  he  was  feifed  at  the  Time  &c.  of  fuch  Land  &c.  and  the  Kiriir,  prai.ts 
it  over,  he  who  Rig'r.t  has  cannot  enter,  nor  have  JBion,  nor  Traverfe  to  the  Office,  but  is  put  to  his  P'.tJtion. 

Br.  Entrc  Cong,  pi,  i:.S.  cites  10  H.  6.  15. .4nd  it  was  agreed,  th.ii  if  the  Efcheator  or  other  enters  t» 

the  Ufe  of  the  Kiv?,  zciihout  Title,  yet  the  Party  can't  enter;  for  the  King  i.s  Ceiled,  and  yet  the  King  is 
no  DilTeifor.  Br.  Entre  Cong.  pi.  1  2S.  cites  55  H.  6.  61. —  5;;*  if  the  King  grants  it  over,  the  Purcy 
may  enter  upon  the  Patentee.  Br.  Entre  Cong,  pi  izS.  cites  ^5  H.  6.  61  • liut  where  the  King  is  in- 
titled  by  CJtp''ft  '"■"J  giants  it  over,  tho'  it  be  falfe  Office,  the  Party  cannot  enter  upon  the  Patentee,  but  is  put 
.to  his  Traverfe  of  the  Olfice;  Per  Laicon  &  Ncedham  ;  &  non  Negatnr.  Br.  Eutre  Cong.  pi.  1  28    cites 

55  H.  <5.  61. S.  P.  Br.  Eutre  Cong.  pi.  5.  cites  55  H.  6.  60 S.  P.  Br.  Entrc  Cong.  pi.  96.  cites 

4  E.  4.  21.  22.  25.- S.  P.  Bi-.Traveric  de  Office,  p!  32.  cites  S.  C. S.  P.  Br.  Traverfe  de  Office, 

pi.  52.  cites  10  H.  6.  I  5.  And  Brooke  fays.  Note  the  Divcrfity  thereof;  for  where  he  cannot  enter  up- 
on the  King  by  Reafon  of  a  Record  for  the  King,  which  ft.mds  in  Force,  thcrj  he  cannot  enter  upoit 

tl;e  Patentee;  iniod  nota  bene;  for  tlie  Title  remains,  and  the  Patentee  is  in  by  the  King. S.  P. 

But  where  the  King  is  intitled  to  Land  by  Office,  and  another  has  Rent-charge  or  Common  out  of  it,  and 
the  King  after  gr.mts  the  Land  to  J.  S.  tliere  he  who  has  Rent-charge  niav  diftrain  or  uf-  his  Common  , 
for  the  Grantee  nor  the  Commoner /.i  not  out  cj  Pofj'effon  by  fuch  Office.  Contra,  if  he  has  Title  to  thi 
Land  ;  note  the  Difference.     Ibid. 

5.  ItwTiS  enacted  by  Parliament,  T)??^/ the  Lord  Hungerford  _/&(;///;/ /e 
attainted  of 'Treafon,  and  forfeit  his  Lands,  with  a  Provifo,  that  of  fuch 
Lands  zchercof  he  ivas  fctledto  theUfc  nf  others,  that  Cc/fy  que  Vfe  might  en- 
ter ;  yet  where  the  King  is  ieifed,  he  cannot  enter  upon  him,  haifhal! 
fue  Oufier  le  Mam.  And  (o  itfeems  that  the  King  is  not  bound  by  any 
Statute,  unlefs  by  exprcfs  \\''ord5  of  the  King;  As  if  it  had  been  that  he 

mi  Si  he 


176  Prerogative  of  the  King. 

might  enter  as  well  upon  the  Poffeffion  of  the  King  as  upon  others.  Br. 

Entre  Cong.  pi.  134.  cites  4  E.  4.  21. 
So  if  a  .)/.rw        6.  It"  a  Ma//  c/.'/fafcs  the  King's  'Tenant,  and  the  DiJT^ifee  makes  continual 
gives  Lar.d     Qam^  and  the  Diffeifor  liies  feifed,  and  Office  is  found  ior  the  King^  by 
*Rett"wHh    which  he  feifes,  the  Difleifee  cannot  enter  upon  the  PoficlTion  oi  the 
Claufc  of     King  by  the  continual  Claim.     Br.  Entre  Cong.  pi.  97.  cites  5  E.  4.  4. 

Re-er.try, 

and  the  LnrJ  comes  to  the  King,  and  the  Rent  is  Jrrear,  the  Donor  can't  enter  upon  the  Pofleflion  of  tlic 

King.    Br.  Entre  Cong.  pi.  97.  cites  5  E.  4. 4. 

7.  A  Man  can't  enter  tipon  the  King  and  another ;  and  this  feems  to  be, 
where  the  King  and  another  htc  jointly  fei fed.  Br.  Entre  Cong.  pi.  loi. 
cites  14  E.  4.  2. 

8.  It  w^as  agreed  for  Law,  That  if  Land  efcheats  to  the  King,  which  is 
in  Leafe  for  I'ears,  or  charged  ivith  a  Rent-charge,  and  Office  is  found  tor 

.  the  King  of  the  Efcheat,  [but]  the  Leafe  or  Grant  not  fo:ind  in  the  Office, 
the  Leflee  cannot  enter,  nor  the  Grantee  cannot  diftiain  i  but  if  the 
King  grants  the  Land  over,  the  Leflee  may  enter,  and  the  Grantee  may 
diftrain.     Br.  Entre  Cong.  pi.  125.  cites  33  H.  8. 

9.  But  a  Man  who  claims  Franktenetncnt  in  the  Land,  can't  enter  with- 
out traverjing  the  Office,  as  it  feems.  Br.  Entre  Cong.  pi.  125.  cite* 
33  H.  8. 


(B.  d.  4)  Sej^n  of  the  K't?icr.  In  what  Gales  the  King 
fhall  be  faid  to  be  felfed  or  poffeis'd.  And  of  what 
Things  he  may  be  put  out  of  Polleflion. 

Br.  Refeifer,  i.  rTp  H  E  King  feifed  the  Pojfeffton  of  a  Prior  Alien  in  Time  of  War  ;  and 
pi.  10.  cues  ^    therefore  the  King  has  Polfelfion  there,  and  not  only  the  Pro- 

fits.    Br.  Seilin,  pi.  11.  cites  21  E.  3.  44. 

2.  The  King  Ihall  not  be  faid  feifed  by  Seijin  of  his  Servant,  unlefs  if 

he  in  his  Advantage,  and  by  his  c-wn  Agreement.     Br.  Error,    pi.   130. 

cites  39  Alf  18. 

Sr.  Seifin,         3.  None  can  gain  Tranktenement  by  any  Entry  made  upon  the  Pofficffion  of 

P.'-  ?7-  (^is)  ^j^g  King,  or  upon  Farmer  of  the  King  j  for  a  Man  by  Entry  may  dilleiie 

V'"  '  a  common  Perfon,  but  not  the  King.     Br.  Prerogative,  pi.  79.  cites  2 

H.  4.  7. 
But  of  4.  The  King  ?nay  be  put  out  ofPoJfcf/ion  of  Things  Tranfttory,  and  fliaU 

Things  Local  j^jjyg  thereof  Aftion,  As,  Ravijhment  of  Ward,  J^uare  Impedit  &c.  Br. 
hav'eTaion,  Prerogative,  pi.  SS-  cites  i  H.  7.  19.  and  4  H.  7.  i. 

At  Precipe 

quodredd.it,  EjeHmer.tofU'ard,  and  the  like;  for  of  thofe  he  cannot  be  put  out  of  Poflcffion.     Ibid. — 

!^/(rffo  lee  elfewhcre,  that  of  TIi/wm  ti-^jn/J/^ry  the  King  fhall  be  adjudged  in   PoflenTion  without   Office, 

As  Ward,  Villeiji,  Stray ,' Heriot  &c.  and  of  thofe  he  may  be  put  of  PolTeirion.     Ibid. But  of  Things 

Local  cr  Permanent,  as  of  Land  &c.  it  appears  there,  and  4  H.  7  i.  that  the  King  is  not  in  PoflTeirion 
till  Office  found  ;  and  there,  when  Office  is  found,  he  cannot  be  put  of  PolTe.Tion  ;  quod  nota.     Ibid. 

Jtid-mhtrt  j'.  Where  the  King  is  initled  to  [Land  by  Eeafon  0/]  7f<?/^  done  by  his 
it  is  found  fen  ant  for  Life,  he  is  not  in  Poireffion  of  the  Land,  but  Ihall  have  Scirs 
nantJl'/  facias.     Br.  Scire  facias,  pi.  122.  cites  14  H.  7.  23. 

hy  tivo  Te.irs, 

he  fhall  have  Scire  facias,  and  is  not  in  Poffeffion  of  the  Land.  Contra  ofOflce  of  .Hienatim  of  Mortmain, 

ir  of  Efcheat ;  note  the  Difference.     Ibid. 


But  Brook  6.  Where  a  common  Perfon  may  lawfully  enter  by  any  Title,  there  if 
makes  a  yj,^^  ^/^/e  he  found  for  the  King  by  an  Office,  'the  King  pall  be  ad- 
^o*!7    r       iud'/cd  in  Poffelfion  without  Scire  facias  againrt  the  Tenant;  but  where  a 

the  ydncel.cr    J      ^  J-'  u         ^         ^  <  c7  .  ,•       \ 

tfihe  King     ccmmon  PerfvH  by  his  Title  or  Matter  cannot  enter,  but  is  put  to  nis  Ac- 
tion, 


Prerogative  of  the  King.  177 


tion,  as  in  Cafe  oi  Ce[favit  or  JFa/,  there  iffuch  Matter  be  found  for  the  Tenant  in 
King  by  Office,   he  is  not  in  Poircilion  by  the  Office,  but  lliall  have  '^"'"'^^  dff- 
Scire  facias  againll  the  Teiiant  to  give  him  Anfwcr  3  note  the  Dilierence.  rh^^Kii^,; '^ 
Br.  Scire  facias,  pi.  143.  cites  21  H.  7.  iS.  being  now- 

Heir  to  it 
might  be  in  PoficflTion  by  Office  found  thei-eof,  orfhiill  have  Scire  facia?  in  Nature  of  Formedon.or  Cui 
in  Vita.     It  Items  that  he  fhali  have  Scire  facias.     Br.  Scire  facias,  pi.  143.  cite.s  21  H. ;.  iS. 

7.  Where  Ce/fy  que  Ufe  is  attainted  of  fraafon,  and  it  is  enaBcd  by  Par-  Contra  if  he 
Itamcnt  that  he  Jball  jorfeit his  Land  in  Pojjefjion  and  in  Ufe^  there  the  King  "l^*^  ^""'J 
is  only  a  Purchafor.     Br.  Livery,  pi.  jS.  cites  29  H.'S.  {t/had' 

been  att.rirt- 
ed  by  the  Common  L.iu; ;  for  there  the  King  has  the  Land  as  King.     Ibid. 

8.  By  Seizure  of  the  Land  of  Tenant  in  Tail,  or  for  Life,  who   is  at-  ■^'>  it  <eemsof 

tainted 'of  Felony,  the  King  has  the  Pofeffion,  and  not  the  Profits  only.    Bf.  ^''"'^',  '•^"'^'^ 

Refeifer.  pi  10.  cites  Vet.  N.  B.  Tit.  Efcheat.  Rmdiof  the 

King  for 
A'ien.rt/cn  tuithout  Licence,  where  the  Lands  are  I  eld  of  tie  King  inCapite.  Ibid.  —  So  it  fcems  el fe where 
of  a  ll'iird.   Ibid  —  Jnd  if  Anm,   die  et  vttflo;  but  quxre  of  thi.s.  Ibid  —  But  upon  Outhfivry  in  pevfon.il 
jiclicns  the  King  fliall  have  only  the  Profits.    Ibid. •  Br.  Seifm    pi.  9.  ciies  S.  C. 

9.  Il  the  King's  Tenant  for  Life  dies,  the  Franktenement  in  Law  is  in  So  if  the  Te- 
the  King  immediately.     Per  Brown.  Pi.  C.  229.  b.   3  Elii.  in  the  Cafe  '^'^"'  "f  '^'* 
of  VVilfion  V.  Barkley.  t",^  f"  . 

J  'U.'.'lh.ut  Heir, 

thcPofleffioti 
in  Law  i.';  immediately  in  the  King  without  Office  ;  for  Office  is  net  reqii'ifte  Itit  nihere  tire  Kin7  Conil  take 
thereby,  yh  it"  the  King  makes  a  Gift  in  'Tail  upon  Condition^  and  the  Couiilion  is  broken,  there  it  ou^'it  to 
be  found  byOffice.     Per  Brown.     Pl.C.  229.  b    5  Eli;,  in  the  Cafe  of  Willion  v.  Lord  Barkley. 


(C.  d)     ^0  frarrmito.      Of  'zvhat  *  Things  it  lies. 

I.  A  Oua  tiBarranto  Ut$  of  the  Wreck  of  the  Sea,  n0  appears 
£\  nnionn;  tljc  petitiongi  itt  pavlianient  of  is  e.  u  Jfo,  6. 

2.  The  Chio  Warranto  ivas  Jrai/icd  for  Franchifes  which  belong  to  the 
Crozvn ;  and  fuch  as  the  Subject  has  are  derived  from  the  Crown,  Liber- 
tates  Regales  ad  coronam  fpeftantes  ex  Conceffione  regum  a  Corona 
exierunt.     2  Inft.  496. 

3.  Quo  Warranto  lies  not  of  fuch  Liberties  as  do  not  lie  in  Claim ;  as  Fe- 
lon's Govds  Ztc.  which  lies  only  in  Point  of  Charter.  Per  Shute,  ]. 
who  faid  it  had  been  fo  holden  in  a  Reading  upon  the  Statute  of  (^o 
W'arrantOj  fuppofed  to  be  Frowick's.  3  Le.  184.  pi.  235.  AHch.  2j 
Elii.  B.  R.  in  Sir  Gervafe  Clifton's  Cafe. 

4.  Quo  Warranto  againll  the  Lord  of  a  Manor  to  know  by  what  Au- 
thority the  Defendant  holds  a  Court  Baron.  It  w^as  objeffed,  that  it  was  in- 
cident to  the  Manor,  and  is  not  any  Liberty  which  the  King  may  hai'e  dijlinif 
from  the  Alanor,  and  being  a  Aiatter  of  Common  Right  the  King  cannot 
have  a  ^'lo  Warranto  thereof.  And  of  that  Opinion  was  P'leniing.  Ch.  (. 
Fenner  doubted.  But  Yelverton,  Williams  and  Croke  held.  That  "a 
Quo  Warranto  well  lies  ;  for  it  is  a  Matter  of  Right  to  hold  Courts, 
and  to  adminijler  fiijlicc,  and  to  hold  Plea,  and  to  drazv  Aflhnblies  of 
Men  together,  and  to  fw ear  Officers ;  which  if  any  doth  without  Right, 
he  is  to  render  an  Account  thereof  i  and  therclore  a  Quo  Warranto  lie.s 
to  Ihew  by  what  Title  he  holds  it.  But  if  he  there  intitles  himielf  to 
the  Manor,  he  needs  not  then  fliew  that  he  is  to  liavc  a  Court  Baron, 
for  that  is  incident  thereto.  And  here  the  Judgment  is  not,  'That  the  Kinz 
pall  feize ;  bccaufe  it  is  not  any  fuch  Franchile  as  the  King  may  havc'i 

hut  it  is,  That  the  Defendant  Ihall  be  onjled  <f  that  Ltbertw     Cio.  J.   259. 
Mich.  8  Jac.  B.  R.     The  King  v.  Stanton. 

^^  y  5  A 


See  Hundred 

♦  See  Brir- 
ton.  cap.  19, 


lyB  Prerogative  of  the  King. 

5.  A  Quo  Warranto  was  brought /or  claiming  a  Fore  ft'  end  a  Court  of 
S-ivanmmote.  The  Defendant  made  his  Claim  by  a  Charter  granted  by 
H.  2  but  did  not  (hew  it.  But  Coke,  Ch.  J.  and  Dodcridt;;e,  J.  that 
no  Suh)e£l  can  have  aForefti  A  Svvannimote-Court,  Dcdeiidge  faid, 
a  Subject  mav  ha\  c,  but  not  a  Forell  ;  becaufe  none  can  make  a  Juttice 
in  Evie  but  the  King.  2  Bulit.  295.  .\Jich    12  Jac.  TheKingv.  Briggs. 

6.  If  Markets  were  kept  without  the  King's  Grant,  a  Quo  VVarranco 
lay  ajiainll  thofe  who  continued  them  ;  and  the  People  that  frequented 
fu'ch  Markets  were  puniihable  by  Fine.     Arg.  3  Mod.  127. 

Serj.Hawk-       y.  4  t?  5 /K  B  il/.  cap.  iS.  S.  3.     The  C/erk  of  the  Crown  in  the  Court  of 


ins  l-iys  It  Xjfjo^'s  Bench, /hall  not,  without  expnfs  Order  given  in  open  Court,  file  any 
'Yi^^iiWx^^^  Information  for  any  T'refpafs  or  Mifdemcanor  before  he  has  taken  a  Recognt- 
Stiumc  ex-    zance  from  the  Per/on  procuring  fur  h  Information  to  be  entered  into  to  the  Per- 


tcnds  to  all  fan  againfi  -whom  it  is  exhibited  in  the  Penalty  of  20  I.  that  he  will  ef'ctfti- 
I-foin  arions  ^/^,  pyQj'i,ii,f^  /u^jj  Information^  and  abide  by  and  obferve  fuch  Ordrrs  as  the 
^'^'^IhitJihv  Court  pall  direcJ.     Jnd  if  the  Per f on  againji  whom  fach   Information  is 


the 


,__'^\i'Aevoi  exhibited  fhall  appear  and  plead  to  IJJue,  and  the  Profeciitor  fJjall  not  at  his 
tlie  Ciovvn-  own  Cofls,  within  a  Tear,  procure  it  to  be  try'd  ^  or  if  a  Verdiif  pafs  for  the 
Office ;  ^and  J)cfenda!it,  cr  if  the  Injormer  procures  a  Noli  Prcfequi,  the  Court  is  aiithc- 
n^vVrob-  riz'd  to  award  the  Dejendant  his  Cofis,  tinlefs  the  Judge,  before  whom  fiich 
jeded,  that  Information  is  try'd,  fhall  at  the  7'rial  certify  upon  Record,  that  there  was 
an  Infoi-ma-  reafonabte  Caufe  for  Juch  Infortnation  ;  and  if  the  Informer  fhall  not,  within 
tioa  in  the  ^j^y^^.  J^joji^hs  after  the  Cojts  ta^'d  and  Demand  made,  pay  to  the  Defendant 
Ouo"wa°-  ^  the  faid  Cojls,  the  Defendant  fhall  have  the  Benefit  of  the  faid  Recognizance. 

ranto,  being  a  .  .     .      ^ 

proper  Means  to  try  a  Right,  is  not  within  the  Meaning  of  the  Statute,  which  mentioning  Trefp/tjfes, 
J,\itier;es,  ^nA  other  Mifdeme.ivors  may  be  reafonably  conftru'd  llich  other  Mifdenieanors  only  as  are  of 
an  inferiour  ^Nature,  lilce  to  thofe  fpecihed,  which  arc  generally  wrangling  and  frivolous  ones  ;  yet 
f:ein"  this  is  a  Remedial  Law,  and  therefore  ought  to  be  largely  cor:firuii,  and  iiich  Informations  may  be  as 
vexanousi's  any  other,  and  always  fuppofe  an  Ufurpation  ot  fome  Franchife,  and  every  fuch  Ufurpati- 
on  is  certainlv  a  Mifdemeanor.  It  hath  been  fettled,  that  this  Statute  doth  extend  to  them.  2  Hawk. 
PL  C.  z6z.  cap.  26.  S.  7. 

8.  It  was  moved  for  Leave  to  file  an  Information  againji'  the  Mayot 
and  Common  Council  of  Hertford,  in  the  Name  o]l  Sir  Samuel  Alhtree, 
to  know  by  what  \V  arrant  they  admitted  Foreigners  and  Strangers  to  the 
Freedom  of  the  Town  ;  allcdging,  that  this  \\  as  no  Quo  Warranto  in  the 
Name  or  at  the  Profecution  of  the  King,  but  only  a  Method  to  try  a 
Right,  Whether  the  Mayor  and  Common-Council  could,  contrary  to 
the  exprefs  \\  ords  of  the  Charter,  as  it  appear'd,  admit  thoie  to  the 
Freedom  of  the  Town  who  were  Strangers  and  not  Inhabitants  therein; 
and  produced  4  or  5  Precedents  in  the  Time  of  King  Charles  I.  After 
feveral  Motions,  the  Court  gave  Lea\  e  to  file  an  Information,  becaufe 
the  injured  Freemen  of  the  'Town  could  have  no  other  Way  to  remedy  theni- 
fehes,  or  to  try  their  Right.  In  this  Cafe,  Holt  faid,  that  a  Quo  War- 
ranto is  in  the  Nature  of  a  Writ  of  Right,  to  which  the  Defendant  can 
ha\  e  no  Plea  but  to  jtijiify  or  difclaim,  and  can't  plead  Not  Guilty  ;  a  nd 
that  Judgment  both  for  and  againft  the  King  is  final.  But  Judgment  in 
an  Information  tn  the  Nature  of  a  ^iio  Warrants,  if  againft  the  Defend- 
ant, is  final,  but  not  if  againft  tKe  King ;  and  that  in  this  Cafe  the 
Right  is  in  the  Corporation,  and  the  Execution  only  in  the  Mayor  and 
Aldermen.  12  Mod.  225.  Mich.  10  W.  3,  Anon. — cites  i  Sid.  86. — 
9  Co.  28,  a.  —  2  Inft.  282. 


(C.  d.  -.) 


Prerogative  of  the  King.  179 


(G.  d.  2)      Qlio    Warranto.      Of  what   Thing   it   lies. 

B^    ^tDhiit   JVurds. 

1.  r\\JO  Warranto;  ly  this  Word  (7c/V)   he  ehiiti'd Tallage  of  his  Vil-  *  g^,  j^  j,  j^ 
*^  Icins  ;    and  by  Word  *  {Term)  he  claimed  their  Progeny^  and  by  the  all  the  Editi- 
W'ord  (Socke)  he  claimed  Suit  of   his  TenantSy    and  by  tlie  VV^ord  {Sake')  o"s  ^^ 
he  claivi'd  Connfamc  of  Pleas  of  his  Tenant s^  ami  by  the  W^ord  {Murder)  f^'f^^'-^  ^'*' 
to  have  Amercements  of  Murderers y  and  ^j' the  Word   t  {Orcdclfe)   to  have  ra^^^^^^^ 
Ore  found  m  his  Soil.     Br.  Qlio  Warranto,  pi.  2.  cites  It.  Not.  19.  for  (Them) 

or  '('Tlieain) 
which  in  Somn.  Glors.  fignifies  Mancipiorum  Sobo'cm,  and  in  Spelm.  Glofs  the  Word  i?  Them.Team, 
•nd  Thcam  accordingly.  And  lee  Kcilw.  145.  a.  —  t  Br.  Prcfcnption.  pi.  1 10.  cites  S.  C.  Brooke  fays, 
This  fecms  to  commence  by  Grant  at  firft,  and  therefore  makes  a  Quire  if  a  Man  may  prefcri.e  in  it. 

2.  Turn-Toll  is  to  have  Toll  for  Beafts  driven  to  be  fold,  tho'  they 
are  not  Ibid.  Br.  Quo  Warranto,  pi.  3.  cites  It.  Not.  FoJ.  21  &  32 
E.3. 


(C.  d.  3)     Proceed i^f^s,  P leadings ,  and   Judgment   in    a 
Quo  Warranto,  in  general. 

I.  f  I  ^  H  E  Defendant  in  a   Quo"  Warranto  was  admitted  to  Imparle.  jt  v.as moved 
i      Keilw.  138.  b.  Itin.  temps.  E.  3.  foraficonil 

Imfarlar.ce  in 
a  Qlio  Warranto,  and  it  was  faid  that  it  ivas  grained  in  the  Cafe  of  the  City  of  London  ;  but  the  Court 
dcry'd  it ;  for  Aftry  faid,  by  the  Courfe  of  the  Court,  they  were  to  have  but  the  common  Imparlance  ; 
And  (Per  Cur.)  being  ex  gratia,  we  may  granl  or  devy  it  as  we  f;e  Caufe.  Comb.  12.  Hill.  1  6c  2 
Jac  2.    B.  R.     Anon. 

2.  A  Quo  Warranto  was  brought  for  Vexation  upon  48  Points  -,  and  the 
Court  being  moved  in  it,  ordered  that  the  Profecutor  Jhould  wave  that  Quo 
Warranto,  and  ftould  bring  a  ntw  one,  and  therein  infijl  only  upon  three 
Points;  but  that  he  mightproceed  to  a  Trial  upon  bis  New  Q^iio  Warran- 
to in  fuch  Time  as  he  might  have  done  upon  the  Old  (Hill.  22  Car. 
B.  R.)  to  the  End  he  might  not  be  delay'd  in  his  Proceedings  by 
bringing  of  the  new  Quo  "Warranto.  2  L.  P.  R.  414.  Tit.  Quo 
"Warranto. 

3.  There  is  a.  Difference  between  atfrit  of  Quo  ^\''arranto  and  an  //;- 
formation  in  Nature  of  a  Quo  Warranto,  as  to  the  Procels  upon  them  ; 
fbritfcems,that  the  Procels  upon  Information  areFtv/./itf.and  Diflringas. 
But  upon  the  Writ  of  Quo  Warranto  it  is  Summons ;  and  lor  Default  of 
Appearance,  that  the  Liberties  Ihall  be  feiz,'d.  Sid.  86.  in  the  Cafe  of 
the  King  v.Trinity-Houfe. cites  Co.  Ent.  527,  528    &c. 

4.  A  Vcrdiff  between  private  Perfons  may  not  be  read  as  any  Evi- 
dence againli:  the  King,  in  an  Information  on  a  Quo  \\'"arranto.  2 
Show.  4?.    Pafch.  31  Car.  2.  B.  R.  The  King  v.  Carpenter. 

5.  A  Yerdict  in  a  Quo  Warranto  on  the  mccr  Right,  concludes  the 
King,  but  on  Information  it  docs  not.  2  Show.  47.  Pafch.  31  C.ir.  2. 
B.  R.  The  King  v.  Carpenter. 


CC  d.  4.) 


I  So  Prerogati\e  of  the  King. 


(C.  d.  4)     Proceedings,   Pleadings  and  Judgment  in  Quo 
WarTanto,  as  to  Libert'tes  and  Frivichijes. 


* 


This  ex-  i  18  £.  i.  l^'NACTS,  thiit  if  any  can  verify  by  gcod  Inquejl  or  other- 
Lib-i-des  r  J  "ii^ifc,  that  they^  or  their  Anceflors  or  Predecejjors,   have 

as  well  to'  ^'f-''^  *  '^f'y  Liberty  "whereof  they  hai^ebeen  impleaded  hy  ^iio  Warranto  before 
thole  tli;it  the  Death  of  R.  i.  and  have  hitherto^  (not  having  ahiifed  fiich  Liberty) 
lie  in  Point  they Jku'.ll be  adjourned  to  a  reafonable  Day  Lefore  the  Jiijiues,  ivithin -which 
"  n  ^^7'^'''  'tune  they  may  ripair  to  the  Kin?  with  the  Record  thereof  hned  by  the 
Of  Fleas,  jujttces  ieal,  which  done,  the  King  will  conjirin  their  rjtate  ;  and  if  any 
Felons  Judgments  have  been  given  upon  fiich  Writs  by  the  J  aft  ices  at  Wefimmfier^ 

tToods,  and  mso;,  the  Complaint  of  the  Party  erieved  to  the  KinF^  he  -will  eive  them 
^^}^^  r   Remedy.         ^  ^  ■>  ^  ^.  L 

to  thole  that  -^ 

may  be  claimed  by  Prelcription,  a<;  Waif  and  Stray,  and  the  like.  2  Infl.  i!,<)6 tThis  Claufc  ex- 
tends not  only  to  Mif-ufer,  Dil-uler,  and  Non-ufer  ot  Liberties,  but  to  Falie  Claim  of  them,  and  the 
like.     2  Inll   496. 

Scrope  faid  that  a  Hundred  is  out  of  the  Cafe  of  this  Statute  ;  for  this  Statute  is  intended  of  Fran- 
chile,  and  a  Hundred  cannot  be  faid  a  Franchife  ;  for  Praecije  quod  reddat  lies  of  a  Hundred.  But 
6hard  faid  a  Hundred  is  no  other  than  a  Franchife  Royal,  as  View  &c.  by  which  he  thought  that  a 
Hundred,  which  comprehended  fuch  Franchife  Royal,  might  properly  be  claimed  as  other  Franchiles. 
Keilw.  145.  TenTps  E.  5. 

The  Cofts,  All  Pleas  of  ^tio  Warranto  fiall  be  frrjn  henceforth  pleaded  and  deter- 

^'d^'F-^  ''"'"^'^  "'^  ^^^  Crrcuit  of  the  Jiijlices  ;  and  all  Picas  new  depe/idnigjhall  be 

rences  "of  adjourned  into  their  proper  Counties,  until  the  coming  of  the  Jujlices  into 

the  Subjefts  ^^^/e  Parts. 

in  thefe  this  Statute  ivas  confirmed  by  another  Statute  de  .^to  Warranto  made  the 

Cafes  were  fame  Tear  and  to  the  fame  Eff'eCi. 

cxcellive,  J            M 

and  therefore  to  meet  with  this  Mifchief,  and  that  the  Subjeft  might  receive  Juftice  in  his  own  Coun- 
try, and  as  it  were  at  his  own  Door,  it   was  the  Kint^'s  Ipccial  Grace,  that  Pleas  of  Quo  VVarranco 

fliould  be  heard  and  determined  in  the  Eyres  of  the  Jnftices.     2  Inli  497. When  Julfices  in  Eyre 

ceas'd,  then  this  Branch  for  the  Eafe  of  the  Subject,  and  for  laving  their  Colts,  Charges  and  Expences, 
Io!t  its  Effect ;  for  with  Juftices  in  Eyre  this  Branch  lived,  and  with  them  it  died.     Jenk.  49S. 

2.  In  Quo  Warranto  he  claimed  Franchife  &c.  and  he  made  Default 
at  the  Day,  by  which  it  was  awarded  that  the  Franchife  be  feifed  into  the 
Hands  of  the  King;  and  that  the  Sheriff  anl'wer  the  Profits ;  and  after  the 
Defendant  came  by  Attorney,  and  prayed  to  replevy  the  Franchife,  and  had  it 
Salvo  Jure  Regis;  ;ind faid  that  he  claimed  the  Franchijc  as  appendant  Time 
out  of  Mind,  and  was  received.  Br.  Quo  Warranto,  pi.  5.  cites  It. 
Cane.  6  E.  2.  6. 

3.  In  Quo  Warranto  the  Defendant  claimed  Jfife  of  Bread  and  Ale  8ic. 
He  faid  that  it  was  Appendant  to  the  Manor  Time  out  of  Mind  &c,  and 
claimed/^  Fcofhient  of  the  Manor  cum  pertinenttis.  And  it  wrs  held  that 
he  may  vouch,  becaufe  the  Franchife  pafs'd  with  the  Manor;  and  ic  was 
admitted  alfo  that  he  m?.y  prefcnbe.  F>r.  Quo  \V'arranto,  pi.  6.  cites  It, 
Cane.  6  E.  2.  7. 

4.  In  Qiio  Warranto  it  a  Man  claims  Court  of  his  Demefne  Tenants  in  his 
Aiatior,  it  luffices  10 pew  that  he  has  Alanor  there  "Without  more;  and  there 
it  was  faid  that  he  need  not  aufwer  to  it.  Br.  Quo  \\  arranto,  pi.  4.  ciies 
T.  17  E.  2. 

Keilw.  14;.      j._  In  Quo  Warranto  he  claimed  to  have  Franchife  in  his  Manor  of  C. 

^'  ^  ■  and  faid  that  his  Father  "was  feifed  of  the  Manor  in  Fee,  and  died  feifed,  and 
he  entered  as  Heir,  and  prayed  his  Age,  becaufe  he  is  within  Age  ;  and  the 
Parol  demurr'd.  Bro.  Quo  Warranto,  pi.  3.  cites  It.  Not.  fol.  21. 
and  32  E.  3. 

Quo  War-        ^_  When  Franchife  is  allowed  in  Eyre,  the  Award  is  no  other  than  that 

Katureof     he  go  fine  Die  fnlvo  Jure  Regis;  and  lb  it  it  be  rightly  allowed  and  well 

iji'.;ci. 


Prerogative  of  the  King.  1 8  r 

iifcd,   it  Ihall  be  allowed,  but  if  it  be  not  well  allowed,  we  will  not  al-  the  Kmj^'s 

low  it.     Keilw.  139.  b.  140.  a.   Pei  Chaunt.  kin.  Temps  £.  3.  RiHufor 

Franchifes  and  Liberties,  wherein  Judgmevt final  fliall  be  given  either  againft  the  Kino;  for  the  Point 
adjudged,  or  for  the  King  ;  and  the  Sako  Jure  for  the  K\ng  ferveth  for  any  other  7'ille  than  that  whicli 
was  a'ijuds^cd  ;  and  therefore  William  de  Penbrugs^e  t'ne  King's  Attorney,  for  profecuting  a  Qno  War- 
ranto ag.iinft  the  Abbot  of  Fifchamp  for  Fr.inchifes  within  the  Manor  of  Stcynings  Sine  pix^epto,  was 
coniiniitcd  to  Gaol.     2  Inft  281. 

7.  A  Mafi  at  the  Commencement  of  the  Eyre  claimed  to  have  View  and 
IVa/f  in  his  Manor  of  L.  and  in  the  Writ  of  ^iio  Warranto  Waif  was 
omitted,  bv  wliich  he  prayed  that  he  might  plead  for  it  upon  his  Claim, 
Et  concelium  fuitei;  quod  nota.     Keilw.  147.  b.  Itin.  Temps  E.  3. 

8.  In  Quo  \\  arranto  againll  Sir  J.  C.  for  claiming  Wreck  Defendant 
pleaded  that  E.  Duke  of  B.  was  feifed  of  the  Manor  of  D.  to  lohich  he  had 
Wreck  appendant y  and  was  de  Aha  Proditione  debitomodo  attintttis,  and  that 
found  before  the  Efcheator ;  and  that  the  Manor  defcendcd  to  ^^lecn  M. 
who  nan  ted  the  fame  to  the  Earl  of  W.  who  granted  to  the  Defendant.  Upoa 
which  it  was  demurr'd,  and  Exception  was  taken  to  the  Plea,  that  the 
Attainder  was  not  fully  and  certainly  pleaded.  But  Plowden  argued 
contra,  that  it  was  certainly  pleaded,  viz,.  Debito  modo  attin6lus  ;  and 
it  IS  (hew It  that  the  Wreck  is  appendant  to  the  Manor,  and  then  if  he  hath 
the  Manor  he  hath  the  W^rec.k  alio  ;  and  if  Dcfndant  hath  the  Manor,  it 
is  not  material,  as  to  the  .^iieen.  Flow  he  hath  it ;  for  She  does  not  claim  the 
fame,  but  impeaches  the  Dejendant  for  itjing  ftich  a  Liberty  there;  but  if  the 
Heir  of  the  laid  Duke  had  demanded  the  Manor  there  againft  him,  the 
Attainder  ought  to  have  been  pleaded  certainly.  3  Le.  72.  pi.  1 11.  Hill. 
20  Eliz.  £.  R.  The  Queen  v.  Sir  John  Conftable. 

9.  Information  was,    'that  where  the  Dejendant  was  feifed  of  a  Manor,  ;  Le.  1P4. 
and  of  an  Hotife  withtn  it,  he  claimed  to  have  a  Court  or  Fiew  of  Frank-  P'-  ^^  I        • 
pledge  Injra  Mefiiagiian  pr^edicf.  and  alfo  that  Sine  aliqiia  Conceffionefive  ~fff'v\  ^iS. 
Authoritatetifarpavit  LihertatesprisdiHas.    Defendant  pleaded.  That  A'o// s.  c' 
Uftirpavit  Libertates  pradttf.  infra  Mefiiaiium  prxdiff.  jVkdo  S  Forma.     It 

was  infilled  that  the  Plea  is  not  good  ;  ibr  the  natural  Anfwer  to  a  Qtio 
Warranto  is  either  to  Claim  or  l3ifolaim,  and  Defendant  does  neither  of 
them.  Shute  j  faid  a  Qiio  Warranto  contains  but  two  Things  in  it.  ill. 
It  demands  Quo  Warranto  he  claims  fuch  Liberties.  2dly.  He  charges 
him  with  a  tortious  Ufurpation  of  them  i  and  here  the  Defendant  hath 
anfwered  to  the  Ufurpation,  but  not  ihewn  by  what  Title  he  claims 
them.  And  that  the  like  Cafe  was  adjudged  in  this  Court,  That  Noii 
Ufurpavit  Modo  &  Forma  was  no  fufiicient  AnAxer.  The  Cafe  was  ad- 
journed. God b.  91.  pi.  103.  Mich.  28  &  29  Eliz.  E.  R.  Sir  Jervis 
Clifton's  Cafe. 

10.  It  was  agreed  by  the  whole  Court,  That  in  a  Qiio  Warranto  it  is  2  Le  212. 
not  fiifficient  for  the  Defendant  to  fay  that  fitch  a  Siibje&  hath  lawful  Interefl  !'•  2-^'5-S.  R. 

.to  hold  Leets  without  making  Title  to  himfelf;  for  the  Writ   is  Quo".^^^^', 
Warranto  he  claims  them.     2  Le.  28.  pi.  31.  Trin.30  Eliz.  B.  K.  The  N^fmeof    ^ 
Queen  v.  Partridge.  Patiidge's 

Cafe. 

11.  Quo  W-arranto  &c.    the  I)t{<tnd.AX\t  pleaded  that  the  Abbot  of  B.  ^  l^ep  ,^ 
was  feijed  of  W'aifs  and  Strays  ly  Prefcriptwn,  and  had  rifed  and  exer-  Mich  5;  & 
cifed  the  Liberty  to  have  Catalla  Felonmn  within  three  Adonths  before  the  ^4 '^'■^'^'■■'^^'^'^ 
Stippref/ion,  without  pewing  by  what  Title,  Grant  or  Charter  j   and  that  by  ^''^'°^°/ 
the  Statute  32  H.  8.  for  reviving  the  Liberties,  and  by  Patent  of 'Tot,  Talia,  fella's  Cafe. 
Tanta,  Cenliiiiiiia  Libertatcs&c.  as  the  Abbot  had,  he  concluded  Eo  War- 
ranto he  ufed  and  claimed  the  Liberties  aforefaid,  as  pertainifig  to  the  Ma- 
nor.    Two  judges  were  of  Opinion,  That  the  Defendant  had  let  forth 

a  luilicicnt  Title  by  Way  of  Ufage  in  the  Abbot,  without  fhewing  the 
Grant  made  to  the  Abbot ;  As  a  Man  may  plead  a  Difcharge  of  Tithes  of 
Abbey  Lands  by  the  Statute  31  H.  8.  that  the  Abbot  held  difcharged  at 
the  Time  of  the  DilTolation,  without  flicwing  how  he  was  difcha'rged  ^ 

Z  z  but 


i82  Prerogative  of  the  King. 


buc  Popham  Ch.  J.  e  Contra,  bccaule  Felons  Goods  could  not  pafs  from 
the  Crown  without  Matter  ot  Record  ;  now  it' an  Ufage  Ihould  be  plead- 
able in  fuch  Caie,  and  liiuc  fhould  be  taken  upon  a  Traverfe  ot  Legi- 
time ufus  fuit,  this  mull  be  tried  by  a  jury  ;  and  by  Conlequence  they 
mull  find  what  the  Law  is  upon  that  Record,  which  is  againlt  the 
Ma^'ims  of  the  Law  ^  but  the  Calt-i  oi  Tithes  are  otherwifc,  becaufe 
they  may  be  diicharged  by  Unity  ol  Pollcliion,  or  by  RealCompolition,' 
■which  is  Matter  en  i'ais,  or  by  the  Pope's  Bulls,  which  are  not  Re- 
cords in  our  Law.  But  they  all  agreed  that  he  ought  to  jhrjj  the  FJtate 
of  tha  ALbct^  becaufe  the  Statute  re\ives  no  other  Eitate  in  the  Liberties 
in  the  Crown,  than  fuch  as  came  to  the  Crown  by  the  Diliblution  of 
the  Abbey.  Aud  as  to  the  Concluiion  of  Eo  Warrcjito^  they  all  agreed 
that  it  was  good,  becaufe  it  ivas  taken  dijinhuti'vely^  viz.  That  he  us'd'"; 
fuch  as  Appurtenant,  v\  hich  might  be  Appurtenant,  and  the  others  by  the 
other  Title.  Mo.  297.  pi.  443.  Pafch.  32  £liz.  The  Queen  v.  Yaughan. 
5  Balft.  155.  j2.  A  Quo  Warranto  againll  the  Bilhop  of  Durham  to  know  why 
^- '^■-r  he  claimed  to  have  the  Goods  and  Chattels  oj'  Felons  and  Pcrfons  ficmding 

Tnn  14'^^'  Mute.  He  pleaded  that  Durham  -was  a  County  Palatine,  and  had  Jura 
Jac.  S.  C.  Regalia,  and  by  Reafon  thereof  he  claimed  that  Privilege.  Per  Coke,  and 
the  whole  Court  agreed  thereto.  That  tho'  a  Man  cannot  prefcribe  to 
have  P"elons  Goods,  becaufe  i'uch  Prelcription  is  only  ibr  Matters  in 
Fatt,  yet  a  Man  may  prefcribe  to  ha\e  a  County  Palatine,  and  by  Con- 
fequen'ce  to  have  all  thele  as  Incidents  to  it.  2  Built.  226.  Pafch.  12 
Jac.  Sir  jerom  Bows  v.Bilhop  of  Durham. 

13.  Quo  VV^arranto  was  brought  to  lliew  why"  they  claim  divers  Li- 
berties &c.  within  the  Palace  of  the  Archbijbop  of  Canterbury.  The  De- 
fendants as  to  Part  in  fuch  a  Place  jtijlify  in  the  City  Pretcrquam  in  Staple- 
gate  and  WeJi-gatCy  S  quoad  Rejiduum  locorum  difclaim.  It  was  refblved 
that  the  Difclatiiier  extends  to  Staple-gate  and  Welt-gate,  notwithltand- 
ino-  the  Preterquam ;  and  Judgment  of  this  Part  was  gi\  en  immediately 
for  the  King.  2  Roll.  Rep.  482.  Mich.  22  Jac.  B.  R.  The  King  v.  the 
Citizens  ot  Canterbury. 

14.  In  Qj.10  Warranto  for  claiming  of  a  Market.  The  Defendant 
claimed  the  fane  by  Letter's  Patents  oi' E.  ■}.  made  to  the  Abbot  of  G.  but 
did  not  plead  Hie  in  Curia  prolat'  as  he  ought  to  do.  The  Attorney  General 
confejjed  this  ;  whereupon  the  Court  was  moved  for  Judgment  for  De- 
tendant.  But  though  the  Patent  was  in  Court,  Doderidge  J.  fiiid,  it 
did  not  appear  fo  to  the  Court  Judicially,  it  not  being  pleaded  v\'ith 
Hie  in  Curia  prolat'.  And  this  cannot  be  amended  without  the  Attorney. 
GeneraPs  Confent,  and  without  Amendment  Judgment  mull  be  for  the 
King  ;  And  alterwards  a  Rule  was  entered  by  Confent  ot  the  Court, 
it  beino-  moved  by  Coke  Ch.  J.  viz.  That  the  Opinion  of  the  Court  was, 
That  the  Plea  in  Bar  here  is  not  good,  neither  in  the  Manner  nor  Mat- 
ter of  it  j  And  this  was  done,  becaufe  other  wife  this  Matter  hereatiier 
might  be  Evidence  againll  the  King.  3  Buls.  jS.  Trin.  13  Jac.  the 
King  V.  Capel. 

15-  -^  Qi^°  \Varranto  was  brought/or  claiming  divers  Liberties,  Privi- 
leges &c.  without  expreffing  any  Certainty  of  what  they  conlilted,  as 
VV  aife,  Eltray,  Frank-pledge  6cc.  fo  as  Defendant  might  make  a  parti- 
cular Anfwer  to  them,  and  therefore  the  Court  held  it  naught.  .3uc 
Mr.  Waterhoufe  the  Prothonotary  fiid,  that  there  are  Precedents  ac- 
cordingly i  Whereupon  a  Day  was  given  to  fearch  the  Precedents,  and 
Procefs  vVas  ordered  in  the  mean  time  to  ceale  againll  the  Defendant. 
Nov.  121.  Sir  Henry  Cheverell's  Cafe. 

16.  A  Ouo  W^arranto  was  brought/or  nfurping  certain  Privileges  with- 
in the  Ala  nor  of  Linton,  llfue  was  joined,  whether  John  Abbot  of  P, 
ever  ufed  Privileges  of  Court  Leet  and  Court  Baron;  and  found  that  he  had 
not  ufed  them  &c.  It  was  moved  in  Arrell  of  Judgment  ^  i.  Becaufe  they 
find  that  the  Keeping  of  the  Court  Leet  and  Baron  is  an  Ujirrpation,  whereas 
thy  alfo  find  that  fuch  Courts  are  ufed  as  within  the  Manor  (finding  the 

Mar.or) 


Prerogative  of  the  King.  1 8  3 

Ma. 'lor J  which  is  impoffiblei  For  a  Court  Baron  is  a  neceJiiiry  Incideni: 
to  it  as  it  is  a  Manor  and  cited  6  E.  3  11.  No  Judgment  was  given.  2 
Sid.  68.  Pafch.  1658.  B.  R.  Wildmore's  Cafe. 

17.  In  a  Quo  Warranto  again ll  the  Town  of  Farnham,  for  tt^ag  a 
Fair   and  Market^  and  taking  'foil  &c.  IJJac  was  taken,  whether  they  had 
'Toll  by  Prcfcription  or  not,  and  it  was  lound  that  they  hud  ;  but  it  was 
moved  in  Arrell  of  Judgment,  that  here   was   a  Difcontinnance,  btcatife 
there  was  No  I[[Ue  as  to  the  other  Liberties  claimed  by  them',  (viz.)  a  Fair 
and  Market ;  and  this  Atlion  is  not  helped  by  the'Statute  of  Jeofails, 
Qiiod  fuitconcelfum  ;  But  the  Chief  Baron  faid,  that  they  were  too  foori 
to  urge  that,  becaufe  Judgment  was  not  yet  given,  and  before  Judgment 
there  can  be  no  Difcontmiiance  againji  the  Ktng^  becaufe  the  Attorney  Gene- 
ral may  yet  froceed,  by  the  King's  Prerogative,  to  take  IJJiie  upon  the  rejf,  or 
mzy  enter  a  Nolle  Profeqiii,  butif  he  will  not   proceed,  the  Court  may 
maice  a  Rule  on  him  Ad  Rcplicandum,   and  fo  there  may  be  a  fpecial 
Entry  made  of  it,  wherefore  non  Allocatur.  Hard.  504.  Pafch.  21  Car.  2. 
in  the  Exchequer.  Attorney  General  v.  Town  of  Farnham. 

18.  Upon  a  Quo  Warranto  when  the  Liberties  irQfetfedquoiifqtie'Szc. 
and  they  do  not  replevy  them,  (per  Aftry)  the  Courfe  is,  That  Judgment: 

Jmal  ihall  be  given  Nili   they  plead  within  fuch  aDay.  Comb.  19.  Pafch, 
2  Jac.  B.  R.  Anon, 

19.  \\'herever  any  Judgment  is  given  for  the  King  for  a  Liberty  ufurp- 
ed,  it  is  .G^iiod  extingtiatur,  and  that  the  Pcrfon  ivho  iifiirped  Libertates  &c. 
Nullatcnas  tntromtttat  &c.  which  is  the  Judgment  of  Oulter,  but  the  Quo 
Warranto  muft  be  brought  againft  particular  Perfons.  But  where  it  is 
■{or  a  Liberty  claimed  by  a  Corporation,  there  it  muft  be  brought  againll  the 
"Body  Politick,  in  which  Cale  there  may  be  a  Seifure  of  the  Liberties  which 
will  not  warrant  either  the  Seifure  or  diliblving  of  the  Corporation  it- 
felf  Per  Curiam.  4  Mod.  58,  Tvlich,  3  W.  &  M,  B,  R.  in  Sir  J  a.  Smith's 
Cafe, 

20.  If fezrral  Privileges  &re  granted  m  ^-.  Charter,  and  there  is  a  For- 
feiture ot'  the  Charter  tor  an  Abufer  0^  one  of  the  Privileges,  and  a  Quo 
VV^arranto  is  brought,  and  Judgment  upon  it,  this  is  a  Forfeiture  of  the 
whole  Charrer.     2  L.  P.  R.  414.  tit.  Quo  Warranto. 

21.  It  was  moved  for  an  Information  in  Nature  of  a  Quo  Waranto  a- 
gainji  the  Steward  of  a  Court  Leet,  and  againji  the  Bailiff   and  Conjlables 
for  tmpannelling  a  Jury  not  duly  Jummoned,  the  Bail i if  being  the  proper 
Officer  to  fummon  them  who  Ihould  be  all  Freeholders,  lor  they  only 
have  a  Right  to  be  Jurymen,  but  there  were  none  fummoned,  and  6 
Perfons  who  had  no  Right  being  prefent  in  Court  were  fvvorn  of  the  Ju- 
ry,  and  6  Freeholders    being  likewife  prefent  in    Court  refuted   to    be 
fvvorn  becaufe  not  fummoned,  neither  would  they  fervc  with  thole  who 
had  no  Right  to  be  of  the  Jury,  whereupon  the  Steward  fwore  6  more  ; 
and  the   Jury  thus  conjlituted' oi  12,  not  ha\ing  Right  to  be  Jurymen 
chofe  the  Bailiff' and  Conflables.     The  Steward  lliewed  tor  Caufe,  tliat  the 
6  Freeholders  who  appeared  in  Court  were  duly  I'ummoned  but  retufedto 
be  fworn,  whereupon  he  fwore  a  Jury   out  of  fuch  as  were  prefent, 
which  he  infilled  was  a  good  Election,  and   that  this   Jury   chofe  the 
Bailiff  and  Conllables,  and  that  this  Wits  the  conflant  Courfe  of  chiifing  fuch 
Officers:  And  that  it  would  be  dangerous  to  make  a  Precedent  of  trying 
the  Right  of  chufmg  fuch  Men  by  a  Qiio  Warranto.  The  Court  thouo-ht 
there  was  no  Room  tor  any  Complaint  againlt  the  Conflables  or  Baililfi 
but  if  any,  it  is  againlt  the  Steward  ^  and  fo  a  Rule  was  made  for  him  to 
attend,  and  lliew  Caufe  why  an  Attachment  fliould  not  go  j  and  the  Rule 
for  the  reft  was  in  the  mean  time  enlarged.  8  Mod.  130.  Trin,  9  Geo. 
1724.  The  King  v.  Harrifon. 

(C.  h.  5) 


184 


Prerc)2ative  of  the  Kin  2:. 


(C.  d.  5)  Proceedings,  Pleadings,  and  Judgment    in   Quq 
Warranto,  as  to  Corporations. 

I.  JX  a  Quo  VVarranto  brought  ctgahijl  the  BaUifs,  AJdcrmen  ^c.  they 
appeared  hy  Warrant  of  Attorney^  but  one  of  the  Bailiffs  named  in 
the  \V  arrant  did  not  appear  nor  agree  to  it.  The  Appearance  by  the  major 
or  greater  Part  being  recorded  was  held  fufficient.  And  alfu,  that  tho' 
the  V\  arrant_  of  Attorney  was  under  another  Seal  than  their  common 
Seal,  yet  being  under  another  Seal  and  recorded  it  cannot  be  annulled 
Godb.  439.  Kaiiiffs  &c.  of  Yarmouth's  Cafe. 
It^v3s^aid         2.  Information  in  Nature  of  a  Qiio  Warranto  againft  the  Defendants 

th'tt'he''£iI-''^''\^''-'^''"'^'^''''"^^  ^'''^'''  'I^anusjor  Ballafi ;  xh^v jnjh/ied 

of  al!  Kavi-  ^^'  /  ^'^ue  ol  a  former  Patent  to  them  by  the  King  of  the  Office  of  L:ijlage 
gable  Rivers  "^^  Ballajiage  of  all  Ships  in  the  River  7'hames  ;  and  the  Opinion  of  the 
in  England  whole  Court  was,  that  the  Defendants  had  a  good  Title  to  take  Sand 
the  Kma°  -^^D^  tor  Ballalt,  without  faying  Cum  pertinentiis  ;  But  upon  a  B^itct 
and  the^'Re- 'y  ^^'-^^'"S'  Judgment  was  given  agamll  them;  i.  That  they /)/.W^i 
porter  adds  ^'^"''  Patent  as  a  Grant  and  Confirmation,  which  made  it  double,  (it  being 
aNota,  that  upon  Demurrer)  and  cited  D.  115.  But  the  Reporter  fays.  Vide  the  Cafe 
been'ina  °*  [J^  ^^i^ff^^  'BtlBgett  in  Quo  Warranto,  in  17  Jac.  where  it  was 
Quo  War-  "^^d  good,  sdly,  They  did  ;;o/  allege  that  it  belonged  to  the  faid  Office 
ra-ito,  the  ^0  take^  Sand  and  Gravel  in  that  River,  sdlv,  They  did  not  fay  that 
Judgment  the  Office  ivas  an  ancient  Oifice.  Sid.  86.  Trin.  14  Car.  B.  K  the  Kine  v 
had  been  .fi-  Trinity-Houfe.  ^    ' 

na!,  becciu'e 

that  IS  a  Writ  of  Right;  but  it  being  in  an  Information  in  Nature  of  a  Quo  Warranto,  it  is  not  con- 
clulive,  and  It  appears  by  Precedents,  that  there  is  a  Difference  in  Proceedings.  /,:  the  ^rolfayy.jm  is 
a  S„mn,c,u,  ^ndjor  Default  of^pfearance  JuAgrrn.t  u  that  tie  Liberties  le  feife^.,  hut  i„  tl^fnUrmat.on  the 
1-roceis  IS  a  Ur.m  Facias  ar,d  Difiringas.  iid.  86.  Trin.  14  Car.  z.  B.  R.  The  King  v.  Trinity  Houfe. 

6f"ss  ^^"  ^'  ^^  ^  ^"°  Warranto  againfl  the  Mtiftcians  Company  in  London  the  Re- 
turn was,  that  they  were  a  Corporation  &c;  but  the  Court  took  Excepti- 
ons to  the  Retina,  i.  Becaufe  it  appears  that  the  Name  of  their  Corporation 
zvas  TheMaffer  and  Wardens,  whereas  in  their  Rettirn  they  made  themfehes 
Guild  or  Fraternity  ;  For  they  muft  be  the  one  or  the  other.  2dly,  They 
returned,  that  they  may  eleci  Perfons  of  the  Fraternity  into  the  f aid  Frater- 
nity, which  IS  contradiElory ;  For  they  ought  to  elt-a  into  the  Society 
fuch  as  were  not  of  it  before,  and  not  fuch  as  were.  Sid.  290.  pi.  7 
Trin.  18  Car.  B.  R.  The  King  v.  Berd well. 

4.  The  King  brought  Quo  Warranto  again/t  J.  B.  C.  and  D.  ^  alios 
Periclitatores  &  Plantatores  pro  prima  Colonia  London  in  Virginia,  to  know 
by  what  Warrant  they  claim  divers  Liberties.  The\'  come  and  plead  infuf- 
ficiently,  upon  which  the  King  demurs.  The  Queition  is.  How 
Judgment  Ihall  be  entered?  For  the  Alajler  and  chief  of  the  Company 
were  left  out  in  the  Quo  W'arranto,  and  the  Judgment  was  given  againll 
A.  B.  C.  and  D.  &  alios  Periclitatores  &c.  But  G)^iicere  tf  this'^binds 
the  Corporation  ?  2  Roll.  Rep.  455.  Trin.  22  Jac.  B.  R.  Virginia  Com- 
pany's Cafe, 

5.  A  Corporation  aggregate  may  be  forfeited  and  feifed  into  the  King's 
Hands  upon  a  Breach  of  TrtiJ- repofed  m  them  for  the  good  Government  of 
the  King's  People.  And  in  the  principal  Cafe  a  Seifure  is  plainly  implied 
in  the  Statute  ol  28  E.  3.  cap  10.  which  enafts.  That  on  the  firji  Offence 
of  the  City  of  London,  it fhall  forfeit  1000  Marks,  on  the  fccond  2000,  and 
for  the  third,  the  Liberty  and  Franchife  of  the  City  of  London  pall  be  taken 
into  the  King's  Hands,  which  plainly  argues  that  "there  may  be  a  Seifure 
oithe  Corporation  i  and  as  to  a  Forfeiture  the  Ad  of  Oblivion  proves 
n,  where  12  Car.  2.  cap,  1 1.  S.  <;.  is,  "  That  all  Bodies  Corporate,  Ci- 


"  ties. 


Prerogative  of  the  King. 


*'  ties,  Boroughs  &c.  are  pardoned  and  acquitted  of  all  Forfeitures  8cc." 
And  lliould  the  Law  be  othervvile,  it  would  ereft  fo  many  independent 
Rcpablicks,  as  there  are  Corporations  now  in  England,  which  would 
be  ot"  niilchievous  Conicquence  to  the  King  and  Kingdom.  2dly,  The 
aff.rmifig  n  Power  to  make  Ej-Laws  for  levying  Money  as  they  have  done 
is  a  great  Oppreffion  of  the  People,  and  coniequently  a  Breach  of  that 
Trult  rtpoied  in  them  lor  the  Wellare  of  the  King's  Subjecfs,  and  con- 
fequcntly  a  jull  Caule  ot  Forfeiture.  3dly,  A  Petition  (mentioned  in  the 
Pleadings)  fcandahns  to  the  King  and  his  Government,  and  tending  to  icget 
in  the  People  an  Hatred  of  .thetr  Sovereign  is  a  jult  Caufe  of  Forteiture.  Re- 
folved.  2  Show.  278,  279.  Hill.  34  &  35  Car.  2.  B.  R.  The  King  v, 
the  Mayor  &c.  of  London. 

6.  Il  the  Corporation  in  a  Quo  Warranto  appears  fiot  thereto,  Judgment 
fliall  be  enter'  d  lor  a  Seij'nre  ^^lotifque,  and  ij  tn  the  mean  time  they  come  not 
and  replevy  their  Corporation  and  appear,  then  Judgment  Jinal  fhall  ie 
green  againft  them  in  the  Term  after  i  And  it  ihall  not  be  a  good  Appear- 
ance, unlcis  the  Warrant  of  Attorney  be  made  under  the  Corporation  Seal,  z 
Show.  365.  pi.  356.  Trin.  36  Car.  2.  B.  R.   The  King  v.  Chefter  City. 

7.  9  Ann.  cap.  20.  S.  i.  JFhere  any  U'rit  of  Mandamus  Jhall  ijfiie  out 
of  the  J^z/eeiis  Bench,  the  Courts  of  Sejfions  of  Counties  Palatine,  or  the 
grand  Sejjions  in  Wales,  to  admit  and  refi ore  Eiirgefjls  w  Officers  of  Corpora- 
tions, pJch  Perfons,  -who  by  Law  are  required  to  make  Return,  pall  make 
their  Return  to  the  firjl  Writ  of  Mandamus, 

S.  2.  yls  often  as  tn  any  cf  the  Cafes  aforefaid  any  Mandamus fhall  iffue, 
and  a  Return  pall  he  made,  it  pall  be  lawful  for  the  Per  funs,  filing  fuch  Man- 
damus, to  plead  to  or  traverfe  all  or  any  material  Faffs  contained  in  the  Re- 
turn, to  zvhich  the  Perfons  making  Return  Jhall  reply,  take  Iffue,  or  demur, 
and  fuch  Proceedings  Jhall  be  had  therein,  as  might  have  been  had  if  the  Per- 
fons fn'ng  fuch  Writ  had  brought  their  Ail  ion  on  the  Cafe  fo-r  afalfe  Return, 
(Did  if  IJfiic  fhall  be  joined  on  fuch  Proceedings,  the  P'erfcns  filing  fach  lint, 
may  try  the  fame  in  fuch  Place  as  an  Ijjiie  joined  in  fuch  Action  on  the  Cafe 
mfht  have  been  tried  j  and  in  Cafe  a  Verdict  be  found  for  the  Perfons  fuing 
fuch  Writ,  or  Judgment  given  for  them,  they  pall  recover  their  Damages  and 
Cofts  as  they  might  have  done  in  fuch  Aclion  on  the  Cafe  to  be  levied  by  Ca- 
pias ad  Satisfaciendum,  Fieri  Facias,  or  Elegit ;  and  a  peremptory  Writ  of 
Mandamus  pall  he  granted  without  Delay,  as  if  fuch  Return  had  been  ad- 
judged infifficient;  and  in  Cafe  Judgment  fhall  be  given  for  the  Perfons 
making  fuch  Return,  they  foal  I  recover  Cifts. 

S.  3.  If  Damages  be  recovered  by  Virtue  of  this  Acf  again fl  any  fuch  Per- 
fons making  fuch  Return  to  fuch  Writ,  they  pall  not  be  liable  to  befucd  in  a- 
fiy  other  Action  for  making  fuch  Return. 

S.  4.  /«  Cafe  any  Perfons  pall  tifurp,  intrude  into,  or  unlawfully  hold  any  hiformatk-.is 
cf  thefaid  Offices  or  Franchifes,  it  Jhall  le  lawful  for  the  proper  Officer  in  each  •"  Mature  of 
of  the  f aid  Courts.,  with  the  Leave  of  the  Courts,  to  exhibit  Informations  in  1t"        '" 
the  Nature  of  J^uo  Warranto,  at  the  Relation  of  any  Perfons  dejiring  to  pro-  be  brou'Wit 
fecute  the  fame,  and  who  fhail  be  mentioned  in  fuch  Injormations  to  be  the  Re-  ivith  Len-ce  of 
lators  again  (I  fuch  Perfons  fo  ufurping,  intruding  into,  cr  unlawfully  holding  ^'^^  ^^"'' ^} 
the  faid  Offices  or  Franchifes  ;  and  if  it  pall  appear  to  the  Courts,  that  the  fe-  olffper'^n 
veral  Rights  of  divers  Perfons  to  the  faid  Offices  or  Franchifes  fiiay  properly  deMwrlo' 
be  determined  on  one  Information,  it  pall  be  laswful  for  the  faid  Courts  to  piorccure, 
give  Leave  to  exhibit  one  fuch  Information   agatnjl  fveral  Perfons,  in  or^ytr '^'.^ ''''■'' '^tiy 
to  try  their  refpeflive  Rights  5  and  fuch  Perfons  pall  appear  and  plead  as  of  tijg"^"^^"^^ 
the  faid  T'crm  and  Sepons  in  which  the  Informations  fhall   be  filed,  unlefs  the  of  9  ,^v.v.,c 
Court  pall  give  further  Time,  and  fuch  Perfons  who  (ball  -profecute  fuch  Infer-  20  the  End 

mations  (hall proceed  thereupon  with  the  mfl  convenient  Spied.  "f  which 

•'         ■^  _  Stauiie  was 

to  prevent  Frivolous  and  Vexatious  Controverfies.  Pcv  Cur.  S  Mod.  ;5i.  PaCch.  11  Geo.  the  Kirg  v. 
Eutler. 

A  a  il  S.  s. 


Ib6  Prerogative  of  thcKinir. 


S.  s-  In  Cafe  any  Per  foil  s^agaifiji  ithom  any  Informations  tn  Natttrc  cj  :■'. 
3iio  PVarraiito  Jhall  iH  any  oj  the  /'aid  Cajes  Le  eshitited,  jhallbe  joiind  gn::- 
ty  of  an  i'fhrpaticn^  or  Intru/ion,  or  tinlaiifiilly  holding  any  of  the  fa  id  OJfices 
or  Franchifes,  itjhall  be  iazi^liil  for  thefaid  (Marts  to  give  Jiidgineni:  that  the 
Relators fhall  recover  their  Cofh  ;  and  if  Judgment  he  given  ] or  the  Defen- 
dants, ihcy  fijall  recover  their  Cofts  againf  fiich  Relators. 

S.  6.  It  jhall  he  la-nfiilfor  the  fatd  Courts  to  allow  to  fitch  Pcrfons,  to 
■whom  any  Writ  of  Mandamus  floall  be  dinged,  or  againfi  zvhom  any  Injor- 
ination  in  Nature  of  a  ^iio  Warrant o,  in  any  oj  the  Cafes  aiorcfaid,  Jfjail  be 
profcc/ited,  or  to  the  Pcrjhiis,  ivhojhall  jrrofecitte  the  fame,  fiich  convenient  'time 
to  make  a  Return,  Plead,  Reply,  Rejoin  or  Demur,  as  to  the  faid  Courts 
P^all  feem  juji. 

S.  7.  TheAB  4  Ann.  cap.  16.  for  Amendment  of  the  Law  and  all  the  Sta- 
tutes of  Jeofails,  (hall  be  extended  to  Writs  of  Mandamus  and  hijormations 
in  Nature  of  a  .^10  Warranto. 

S.  8.  The  Mayor,  Bailiff,  or  other  Officer,  to  ivhoni  it  belongs  to  prejide  at 
the  Elefiion,  and  make  Return  of  any  Member  to  ferve  in  Parliament,  and 
vjho  ought  to  be  annually  eletled,  and-'diho  has  been  in  fuch  annual  Office  for 
one  Tear,  fljallnot  be  capable  to  be  chofcn  into  the  faid  Office  for  the  2  ear  tm- 
inediately  enf'.mg;  and  ivhcre.  any  fuch  annual  Officer  is  to  continue  for  a 
Tear,  and  until  fome  other  Perfon  be  chofen  and  fivorn  into  fuch  Office,  if  any 
fuch  Officer  fhall  voluntarily  and  unlawjully  prevent  the  chufing  another  Per- 
fon to  fucceed  into  fuch  Office  at  the  time  appointed,  he  jhall  jorjeit  100  /.  to  be 
recovered  ivith  Ccfls  of  Suit  by  fuch  Perfon  as  iicilljucfor  the  fame  in  her  Ma- 
jeffy's  Courts  of  Record,  one  Moiety  thereof  to  be  to  her  Majejiy,  and  the  other 
Moiety  to  him  that  zvill  ftiejor  the  fame. 

8.  Information  in  Nature  ot  a  Quo  Warranto  againft  S.  for  ufurping 
the  Office  of  a  common  Burgefs  of  the  Tcwn  of  the  Dcvifes  in  Wiltfhire ;  and 
upon  a  Trial  at  Bar  upon  this  Illue,  Whether  Sutton  "was  chofn  a  Capital 
Burgefs  by  Mayor,  Recorder  and  Capital  Burgcff'cs?  the  IbJlovving  Points 
aroic  i  the  Recorder  had  made  a  Deputy  Recorder  by  Writing  under  his  Hand 
and  Seal,  and  ajterwards  had  revoked  this  Deputation  by  another  Writing,  a 
Copy  of  ivhich  -was  offered  in  Evidence  of  the  Revocation.     £ut  this   held 
not  good  Evidence,  becaufe  it  did  not  appear  but  they  might  haA  e  pro- 
duced  the  Original.     Deputation  of  an  Officer  is    in  its  own  Nature 
grantable  by  Parol ;  and  therefore  tho'  it  Ihould  happen  to  be  granted 
by  Writing,  yet  llnce  it  is  in  itfelf  grantable  by  Parol,  it  may  be  revok'd 
by  Parol,     iij' /^/u' CV:7^rr/6T  that  incorporates  the  Town,  the  Mayor,  Re- 
corder, and  in  his  Ahfence  Deputy-Recorder  and  Capital  Burgeffes,  vel  ma- 
jor pars  eorundem,  arc  impowercd  to  chufe  Capital  Eurgeilcs  :    Now  the 
Queftion  was,  Whether  upon  thefe  \\  ords  ot  the  Charter,  Acfs  done  by 
the  Mayor  and  Majority  of  the  Burgeffes,  ivithout  the  Prelence  ol  the  Re- 
corder or  his  Deputy,  were  good  ?     And  the  Court  feemed  to  incline  that 
they  were  good,  becaufe  the  Word  (Eorundem)  refers  not  only  to  the 
Capital  Burgeli'es,   but  Mayor,  Recorder  and  Capital  Burgefiesi  and 
yet  the  Realon  why  the  Pre  fence  of  the  Mayor  is  neceffaryto  Corporate  Atis^ 
is  not  becaufe  he  is  particularly  named^  but  becaufe  he  is  the  Head  of  the 
Corporation;  and  if  this  were  not  i'o,  the  Addition  of  thefe  Words  ia 
Charters  (Quorum  Recorder  unus,)  would  be  ufelei's  and  unneceiiary. 
10  Mod.  74.  75.  HiJI.  10  Ann.  B.  R.  I'he  Queen  v.  Sutton. 

9.  Another  ^V/c/?/o// was.  Whether  fuppojing  it  not  nectffavy  by  the  Char- 
ter, that  the  Recorder  fjould  be  prejent,  yet  the  Iffue  did  not  oblige  them  to 
prove  him  prefent  at  the  Ele£lion  ?  To  this  it  was  faid  by  the  Council, 
thatConcelFo  the  Charter  did  not  require  the  Prelcnce  of  the  Recorder, 
the  Quellion  was  no  more  than  this,  W  hether  they  lliould  be  obliged  to 
prove  an  immaterial  Part  of  the  Iffue  ?  It  was  faid  further,  that  by  a  Pa- 
rity of  Reafon  it  might  be  expefted  that  they  fhouid  prove  the  Prefence 
of  every  one  of  the  Common  BurgefTes  ;  That  by  the  IJfue  no  more  was  . 
meant,  than  that  the  Ele&icft  ivas  made  by  thoje  i<iho  had  a  Pczicr  to  do  it ; 

'i'hat 


Prerogative  of  the  King.  187 

Tiiat  Ubi  major  pars,  ibi  toca,  viz.  the  Authority  of  the  whole.     And 
of  this  Opinion  was  the  Court.     lo  Mod.  75.   The  v^uceii  v.  Sutton. 

10.  Another  Quellion  ftarted  was  ^Whether  in  aCorporatm  that  vv;is  by 
ChiUiCY  to  conjifi  ofJUayor^  Recorder^  Common  BiirgeJJcs  &cc.  the  fame  Per- 
fcii  might  net  be  both  Mayor  and  Deputy  Recorder.  lo  .Mod.  75.  I'hc 
Queen  v.  Sutton. 

1 1.  Another  Point  v/as  moved  upon  the  Words  of  the  Charter^  which 
appoints  the  S-ivcariiig  of  a  Common  Burgcjs  to  be  done  before  the  Ahyor^ 
Recorder,  Common  Bnrgtjfcs,  or  the  Majority  of  thein  'Tunc  ibi  prefentiiim  ; 
whether  or  no  a  Majority  of  the  whole  Eody  was  by  thefe  Words  neccl- 
fary  to  be  prefent  at  the  Swearing,  or  whether  a  Alajority  of  thofe  ih-dt 
were  prefent  was  only  rcqiiifne,  thd"  they  lliould  not  be  the  Majority  of  the 
whole}     It  was  laid,  that  upon  the  Reafon  of  the  Thing  it  was  notne- 
cefiary  that  the  Swearing  in  Ihould  be  done  with  the  iiiiiie  Solemnity  as 
the  Chuling  in;  tor  the  Choice  is  a  voluntary  deliberate  Act;  the  Swear- 
ing in  on  the  contrary  is  what  a  Perfon  once  chofcn  may  challenge  as 
his  Right,  and  may  by  Mandamus  compel  them  to  do.   And  it  this  Con- 
ftruttiondid  not  prevail,  the  Words  in  this  Claufe  of  the  Charter  con- 
cerning the  Swearing,    Tunc  ibi  prsfcntium,    which  are  not  in  the 
Claufe  concerning  the  EleQiion,  would  Jigniiy  nothing.     As  for  the  Ob- 
jection, That  it  feems  abfurd  to  fay  a  Man  muft  be  iWorn  before  a  Ma- 
jority of  thofe  that  are  prefent,  lince  if  they  are  prefent  he  mull  unavoid- 
ably be  f  \  orn  before  them  all.     The  Anfwcr  is.  That  this  Claule  is  to  be 
underjiood  of  being  [isjorn  in  by  the  Confent  of  a  Majority  of  thofe  that  were 
prefent.     10  xMod.  75.  76.  The  Queen  v.  Sutton. 

12.  i^nother  Qiieition  was,  IVhetbcr  by  a  Charter  that  requires  ABs  to  be 
done  by  a  Majority  of  the  Corporation,  a  Perfon  might  not  be  removed  by  a 
Majority  of  that  Body,  excluding  the  Perfon s  that  are  to  be  removed.,  and 
cannot  vote  in  their  own  Caufe  ?  hat  the  whole  Court  were  of  Opmion, 
that  a  Removal  being  an  Act  of  an  odious  Nature,  all  Claufes  concern- 
ing it  mull  receive  a  itrict  Interpretation  i  and  that  therelore  the  Word 
Majority  fhoti'd  be  nnderjlood  of  a  Majority  of  the  whole  Corporation.  10 
Mod.  76.  The  Queen  v.  Sutton. 

13.  Another  Quellion  railed  w&sJVhcthcr  not  fammoning  to  a  Meeting, 
Members  de  Faiio  disfranchised,  tho'  afterwards  upon  Re-examination  it 
t3;ould  appear  they  were  Jfill  laivful  Members,  fhoitld  vacate  ylcfs  done  in 
thofe  Meetings  '  Court  inclined  to  chink  it  would  not  vacate  them.  10 
Mod.  76.  77.  The  Queen  V.  Sutton. 

14.  Some  of  the  above  Points  were  dirc6led  to  be  found  fpccially.  Ibid. 

1$.    An   Inibrmation  in   Nature  of  a  (^o   ^Varranto    was  brought  ^''''^-  '^^  ^• 
againft  W.  for  exercijing  the  Office  of  Mayor  in  Portfmoitth.     W.  pleaded  ^'Y''      fo,. 
the  Charter  of  King  Cha.  i.  incorporating  tjie  Townof  Portfmouch  &c.  Txerc^'his'the 
^nd  Jets  forth  a  particular  Claufe  on  the  Charter,  declaring,    That  iftheOfpceofJl- 
Mayor  Jhould  die,  or  for  jull  Reafons  be  removed,  it pould  be  Lawful  for  the  '^'''men- 
Alder.mcn  to  chafe  another  Mayor  for  the  remaining  Part  of  the  Tear,  un- 
til the  Time  to  eleft  came  about  again  ^  then  he  fets  forth,    that  the 
Mayor  died,  and  that  he  was  chofeu  by  the  Majority  of  Aldermen,  Secun- 
dum formam  Chart  a:  prxdiif.     The  Attorne}'  General  replied,  Non  eletius 
Modo  &  Forma  ^c.     Upon  Trial  at  the  Ailifes  it  was  inlilled.  That  the 
Defendants  to  pro- e  the  Illue  mttjl  frfl prove thcmfelves  qiialijied  by  receiv- 
ing the  Sacrament  according  to  the  Act  of  King  Cha.  2.   v/hich  Point,  in- 
ilead  of  being  Ibund  fpecially,  was  faved  by  the  Judge  wlio  tried  the 
Caufe.     It  was  alcerv.ards  argued  for  the  Defendant,  but  no  Judgment  is 
mentioned.     10  Mod.  64.    Mich.  10  Ann.  13.  R.  W'hitehorn  the  Mayor 
of  Portfmouth's  Cafe. 

16.  An  Inibrmation  in  Nature  of  a  Quo  \V Avranto  was  for  exerci/ing  IhM.  2<)6. 
the  Office  of  Port-reeve  in  the  Borough  of  Hon i ion.      The  Defendant  in   his  ':;'''^"'''-  i 
Bar  fet  forth  a  Right  to  that  Office,  and  concluded  with  a  Traverfe  abfque  *^.^°  dfv 
kcc,  that  the  Dejendant  ujurped  the  Offiice.     The  Crown  in  its  Replication,  tht-  Dc'fcn- 

taking 


j88 


Prerogative  of  the  King. 


d.inr,  and 
i  ill!>cd   (a- 
nionj;  orlier 

i  hat  the 
Defendant 
by  Jetting 
Jorth  bhTitle, 


taking  110  Notice  of  the  fpccial  Ijfiic  fct  forth  by  the  Defendant,  joined  JJfue 
tipofi  the  Iravcrfe  J^iicd  tifnrpavit  ^c.  and  upon  this  Dcmnncr  is  joined. 
Powis  jun.  J.  laid,  He  ever  took  it,  that  in  this  Cafe  the  Abfque  hoc  &c. 
was  but  a  meer  Matter  of  Form,  and  a  relpectful  Way  of  conciudinu- the 
Pka.     And  Parker  Ch.  J.  fiiid,  The  Qtieltion  turns  upon  this.  Whether 
jonr,mH,t,e  ^^"''^  Tra\ erfe  be  only  Matter  of  Form  ?  lor  if  fb,  the  Crown  cannot  take 
'iMdarfwe-.-ed  ^'1"'=  "P?"  ^^  i   t>ut  it  It  be  a  material  Plea,  moft  certainly  the  Crown 
th  Ki-i,„!e       may  do  it.     lo  Mod.  210.  Hill.  12  Ann.  B.R.  The  Queeri  v.  Bla^den 

Charge  of  the  ° 

/nfonn.^'tion,  which  was  for  him  to  (hew  Quo  Warranto  &c.  And  the  Court  were  all  of  Opinion,  that 
Defendant  fliouldjiave  Judgment.  And  Parker  Ch.  J.  (aid,  No  Body  ever  thougi.t  Non  Ulurp.'ivit  a 
good  Plea,  becaule  it  evidently  appears  from  the  Nature  of  the  Charge,  which  is  to  fliew  by  what  War- 
rant or  Authority,  to  which  that  Plea  is  no  Anfwer.  And  if  this  could  not  have  been  pica.lcd  in  Bar 
then  that  Replication,  which  in  Elfcft  fets  up  that  Plea  acrain,    muft  be  nau,;;ht.     And  to  this  Powis 

and  Pratt  J.  agreed. An  Objedtion  havin;^  been  made.  That  in  an  Informa'tion  of  fntrifjion  tie  Kin" 

maytake  Ijj're  iipcn  the  Ufurpatio}!,  tho'  the  'Title  ie  fet  forth.  It  was  anfwered,  That  an  Information  of  In- 
trulion  is  of  a  different  blainre  from  that  of  a  ^:o  IVarranto,  becaufe  it  does  not  follow  from  his  havinw 
a  Title,  that  he  i.s  no  Intruder  ;  but  it  does  that  he  is  no  Ufurper.  And  the  Conrfi  of  Precedents  is  fo  m 
Intrufion,  but  orhcrwile  in  this  Kind  of  Information,  which  is  a  prefumptive  Argument  that  there  is  a 
Difterence.  And  there  i.s  another  Difference,  That  in  an  Information  of  fntriiftcn  the  Cretin  fets  forth  iti 
'Title,  and  ccrclndes  De  Pr^mijps  Scc-  Arg.  10  Mod.  297.  &  Ibid  299  P.irkcr  Ch.  J.  approved  the 
Dillmftion  .  for  tho'  the  Defendant  fhould  have  a  Title,  yet  it  is  very  polliblc  he  may  be  an  Intruder 
but  impoffible  that  he  fliould  be  an  Ullirper.  * 

17.  Upon  a  Rule  to  lliew  Caufe  why  an  Information  in  Nature  of  a 
Quo  Warranto  fli.ould  not  be  granted  tojlsez^  by  -jcbat  Authority  he  claim' d 
to  be  Mayor  of  Lefiivithiel  in  the  County  of  Cornii-all^  it  was  lliewn,  That  by 
the  Charter  of  Incorporation  a  Mayor  is  always  to  be  elefted  out  of  the 
C:apital  Burgeifes,  and  to  continue  in  his  Offce  till  a  new  Mayor  be  duly 
chofen  ;  That  the  Defendant  the  preient  Mayor  never  was  a  Capital  Bur- 
gels,  and  confequently  never  could  be  duly  chofen  Mayor  out  of  thofe 
Burgeliesi  and  therefore  is  no  Mayor.  To  this  it  was 'anfwered,  That 
he  was  chofen  a  Capital  Burgefs  in  1697.  ^"^  that  as  many  of  the  Inhabi- 
tants as  are  now  living  fiw  that  he  was  duly  elected,  e.Kcept  one  Joha 
John,  who  now  complains  againlt  him  ;  and  that  having  now  lb  long  ac- 
qmefced  tinder  that  Eletlion^^itjhall  not  now  be  brought  in^iiejlion^  it  beinga 
Ihmding  Rule  in  Cafes  of  this  Nature,  that  tliey  fliall  not  be  examined  in 
fuch  remote  Degrees.  That  Defendant  was  chofen  Mayor  in  1706.  and 
that  the  Corporation,  for  fome  Differences  among  the'mfelves,  did  not 
proceed  to  any  Eleclion  of  Capital  Burgeffes  lince  that  Time  3  fo  that  the 
Borough  wanted  a  fnffictent  Number  of  fuch  Burgeffes  to  chafe  a  new  Mayor, 
and  for  that  Reafon  the  Defendant  had  continued  Mayor  ever  Jince.  The 
Chief  Juftice  was  of  Opinion,  that  the  Fact  was  plain  that  Defendant 
had  been  Mayor  for  16  Years  together,  which  is  a  fufficicnt  Caufe  for  an 
Information;  fo  that  the  Rule  was  made  abfolute,  and  the  Parties  were 
left  to  try  their  Right  upon  this  Inlbrmation,  tho'  one  of  the  Judges 
was  of  Opinion,  That  a  Mandamus  to  ele£t  a  Capital  Burgefs"  and  a 
Mayor  had  been  a  good  and  proper  Method.  8  Mod.  132.  Trin.  9 
Geo.  1724.  The  King  v.  Alexander  John. 

18.  On  a  Rule  to  lliew  Caufe  why  an  Information  in  Nature  of  a  Quo 
Warranto  Ihould  not  go  for  claiming  to  be  Capital  Burgeffes  of  Brecknock, 
it  was  objefted  that  they  never  were  duly  chofen  B/irgcfes  ^  and  tho'  one 
had  been  Burgefs  de  Faffo  12  Tears,  and  the  other  \(y  Tears  ;  and  tho'  it 
was  urged  that  it  would  be  of  fatal  Confequence  to  this  Borough,  after 
fo  long  an  Acquiefcence,  to  make  all  the  Corporate  A6ts  done'by  them 
during  all  that  Time  void,  yet  it  was  anfv,  ered  that  the  long  Acquief- 
cence could  be  no  Colour  againll  this  Rule,  which  is  made  on  the  meet 
Right,  and  that  Length  ot  Time  will  ne\er  eftablilh  a  Right  gained  by 
Ufurpation  ^  that  'tis  true,  in  Cafes  of  not  taking  the  Sacrament,  or  the 
Oaths  of  yllkgiance  and  Supremacy,  the  Court  after  a  long  Acquiefcence 
will  intend  that  they  were  duly  taken  ;  but  a  Right  fhall  never  be  in- 
tended when  the  Merits  of  it  are  controverted  (as  In  the  principal  Cale) 

and 


The  lil<e 
Rule   wa.s 
made  on  P. 
to  flicw   by 
what  Au- 
thority he 
claimed  to 
be  Recorder 
of  thefasne 
Borough  ; 
But  as  to  his 
Cafe,  he  was 
elefted  29 
April  1722  ; 
but  finding 
that  Elcc- 


Prerogative  of  the  King.  i8p 

and  no  collateral  Point  difputed.      And  the  Court  being  of  that  Opinion,  tionnot  to 
the  Rule  was  marie  abfoluce.     8  Mod.  16?.  Trin.   9  Gee.  1724.  The '''' f^°"'^'  ''= 
ing  V.  PoucU  6c  al.  .itl.cM.v 

following;  ; 
and  before  he  tt'.rf  fzi'syii  into  the  O^ce;  the  Court  difcliarged  the  Rule  made  to  t?ic  like  Pui-pofe  as  to  the 
llccoi-der,  bccaufe  he  did  not  rely  upon  his  f.rfi  but  upon  his  fccovii  EkBion.     Ibid.  Price's  Cafe. 

19.  Stat.  9  Jnn.  20.  is  not  exclulive  of  a  Qiio  Warranto  in  all  Cafes 
not  recited  in  the  Preamble  oi  the  Aft;  and  in  the  principal  Cafe,  which 
was  for  excrcillng  the  Office  of  Bail  {[I'  of  the  To-xn  of  D.  which  was 
avcrr'd  to  be  an  Oliice  for  the  Adminiltration  of  Juftice,  and  therefore  ok'' 
a  Publick  Nature,  Judgment  was  given  pro  Rege.  Gibb.  82.  I'rin.  2 
&  3  Geo.  2.  The  King  v.  Boyle. 

20.  If  the  Party  on  whom  a  Rule  is  made  for  an  Information  in  Na- 
ture of  a  Q_Lio  Warranto,  can  /hew  to  the  Court.,  ihat  his  Right  to  the  Fran- 
chife  in  ^Hcfiion  has  already  been  determined  on  a  Mandamus  ^  or  that  ic 
hath  been  acqnicfced  in  many  Tears  without  any  Difpnte  ;  or  that  it  depends 
on  the  Right  ofthofe  who  voted  for  him^  '■juhich  hath  not  yet  been  tried ;  or 
that  the  Franchife  no  -ivays  concerns  the  Pitblick,  (as  all  thofe  which  re- 
late to  the  Government  of  a  Corporation,  or  the  Eleclion  of  Members  of 
Parliament,  and  Fairs  and  Markets  &c.  arc  wont  to  do)  but  is  wholly 
of  a  private  Nature,  as  a  Cony-zvarrcn  ^c.  or  that  the  Elelfion  by  isjhichhe 
claims  is  agreeable  to  Charter ;  or  that  he  has  ncjer  aBed  under  it.,  the  Court 
will  not  grant  the  Inibrmation  unlefs  there  are  fome  particular  and  ex- 
traordinary Circumllances  in  the  Cafe,  the  Determination  whereof  be- 
ing lett  wholly  to  the  Diftrction  oi  the  Court  cannot  well  come  under 
any  ll.ited  certain  Rules.     2  Hawk.  PLC.  262.263.  cap.  26.  S.  9. 


(D.  d)     Fi/z.-^/^^/jj  [and  Tenths.]     //-7W. 

I.  TT' JlftCCUtlj.Si  illlt!  'Ccnt?JSi  are  a  certain  Tax  anciently  by  Parliament  Spelman's 

jj    impolita  lingulis  Civitatibus,  Burgis  &  Oppidis,  ^\\t  not  upon  ^'o'^*- Vcrbo 
every  particular  Man,  but  generally  according  to  the  Rate  of  the  ijch  ^'flvs  '^'" 
Part  of  the  Goods  and  Polfelfions,  as  it  fcems,  of  the  Place.     CliniDfll  That 'it  was 
llbCr  ClUnalUim  So*   a  jfiftCntt!)  was  granted  to  E.  u  a^  nppcarS  bi)  Tnbutum 

>?  €.  u  Eot,  ciaufo  ^z^,  5-  s  €,  u  a^cmb.  3*  5.  6,  3  e>  i\  'v^s'^i'^  ci- 
Koti?au^emD.6.  ^^:^^i^; 

totiu.s  An- 
glix  ab  antiquo  Impofitum  ;  cemim  autem  &  definitum,  quod  tamen  nee  annuitim,  nee  fine  Pari i;)- 
inentario  decrcto  exigatur.     Alia.s  Talla^iuin  &   Taxa.  Gal,   Qiiiniieme,    Ad^I.   The   Tax.  Ori"incm 
fumpfit  e  Sarionum  Danegeldo,  quod  vide,   &  Hid  igium  :   nam  cum  c>:  hidarum  plcrunque  coliigeren- 
tur  delci-iptionc  Hidaj^ium,  utique  £c  pari  rationc  Carucapum  dicitur  ab  Authoribus.    Vide  (Inquain) 

has  voces.     Literae  lid.  i.  VVillielmo  Spileman  &  W.  Gilbert!. ^Venire  faciatis  coram  Vobis  tot  & 

tales,  tarn  Milites,  q\iam  alios  probos  &  lcn;ales  Homines  de  Com    prxdicl'o,  tain  infra  Libertates  quani 
extra,  pro  Quintadecima.     Dat.  24  Oct.  Reg.  5.  Clauf.  Rot.  ejufdcm  auni. 

£♦  ^Thirtieth  and  Twentieth  was  granted  to  E.  i.  Hot*  Ptlt*  34, 

3.  By  the  Expofition  of  thofe  of  the  Exchequer,  T'ax  and  Tallage  is  no 
other  but  Tenth,  Fifteenth,  or  other  Sub/idy  granted  by  Parliament,  and  the 
Fifteenth  is  of  the  Laymen,  and  the  Tenth  is  uf  the  Clergy,  and  is  to  be  le- 
vied of  their  Land  j  and  the  Tenth  and  the  Fifteenth  of  the  Lay  Gents  is  of 
the  Goods,  viz..  the  Tenth  Part  of  the  Goods  in  a  City  and  Borough,  and  the 
Fifteenth  Part  of  the  Goods  of  the  Laymen  in  the  Country,  zahich  was  levied 
in  ancient  'Times  upon  theirGoods ;  that  is  to  fay,  of  the  Bealh  upon  their 
Lands,  which  WaS  very  troublefome  i  but  now  it  is  le\  icd  according  to 
th'  Rate  of  their  Lands  by  the  Tards  cf  Land,  and  other  Qtiantitics  i  fo 
that  now  all  know  their  Certainty  in  every  Vill,  and  pav  throughoac 

B  b  b         '  'the 


ipo  Prerogative  of  the  King. 

the  Realm  ;  but  it  is  yet  levied  in  ibine  Places  upon  their  Goods,  but 
in  (everal  Places  upon  their  Lands  j  which  was  agreed  by  the  Barons. 
Br.  Quiniime.  pi.  9.   cites  M.  34  H.  8. 


(E.  d)     Hozu   it    may 

See  CD.d)m  I,  ^^  l^  (Q  1  iFtCentl)  \^  not  any  Inheritance  in  the  King^  fat  l)C  Cait= 
the  Notes  of       J_    nQt  IjStiE  It  UHtiJOUt  the  Grant  of  his  People.  1 1  ip.  4.  35.  b. 
pl.  I. 


(F.  d)    How  the  Taxatmi  ihAl  hz. 
There  is  no[i.]  v^^DC  the  Form  of  tijc  Natation.    I  €.  2.  Hot.  Pat 

Roll    "  *"        ^-  The  Prior  ofE.  in  London  hrou^t  yittachnient  upon  a  Prohibition 
Br.Imprifon-  ^g^-i''fi  the  Colkcfors  of  the  Tenth  and  Fifteenth  in  London,  and  cotuited 
ment.  pi.  ii- that  he  had  delivered  the  Prohibition  in  the  Prefence  of  certain  People^  that 
cites  S.  C.      they  po'tld  not  dijirain  for  Rent  of  certain  'fenements  held  of  him  in  London  j 
and  notwichltanding  they  had  taken  certain  Sums  of  the  Rents  of  cer- 
tain Tenements  of  the  Prior  for  the  Tenths  wrongtully  &:c.     The  Col- 
kfforsfaid,  that  their  Commiffton  -zvas  to  collet  the  Tenths,  among  other  Goods 
and  Chatties,  of  Goods  ariftng  of  Lands,  and  Tenements  purchased  of  Reli- 
gious, as  appears  Anno  21  £.1.   and  becaufe  the  Lands  and  Tenements' 
was  purchafed  in  forma  prxdicta,  and  becaufe  the  W^ards  where  &c. 
were  not  fufficient  in  Goods,  they  took  the  Rents  of  the  Tenements  of 
the  Prior  after  the  Day  of  Payment  tiiereof  i  and  the  Prior  alledg'd, 
♦  All  the  E-  x\yxt  they  had  levied  the  Fifteenth  *  of  the  Goods  oH  the  Tenants  inha- 
fj"i°h^  "^     biting  in  the  faid  Tenements,  fo  ought  he  to  be  difcharged  from  paying 
et Tenements  fot  the  Rent.     And,  Per  Curiam,  becaufe  the  if:  Tenants  paid  for  their 
Inhabitants    Goods  in  the  Tenements,  the  Prior  ought  to  be  difcharged  from  any  Payment 
in  les  &c.)    fr  the  Rent  of  the  fame  Tenements  i  by  which  it  -was  awarded,  that  the 
:^  Orig.  IS      p.f,Q./-  recover  Damages  tax'd  to  10 1,  and  that  the  Collector  capiat ur.     Br. 

(Tenements )  r\    •      ■  ^  ■  tj 

^  Quinzime.  pl.  2.  cites  7  H.  4.  33. 

j«<  Per  Hill;      3.  \Vhere  Granges  &cc.  are  charged  to  the  Fifteenth,  and  after  are  tnade 
fh}i'^^h'^"     ^'^^^  and  are  inherited  with  Lay7?ien,  yet  they /jail  not  be  affefs'd  to  the 
dwreed  for  Fifteenth  for  their  Goods  ■,  for  the  Lord  is  charged  to  the  Tenth.'    Per  f  hirn. 
ihdr  Goods     Br.  Quinzime.  pl.  3.   cites  11  H.  4.  35. 
to  the  Fif- 
teenth, and  lie  Lay  Tenants  for  their  Land.     Ibid. 

4.  If  Fifteenth,  Tenth,  Tax,  Tallage,  or  Subfidy  be  granted,  and  the 
Vill  of  D.  IS  tasti  to  10 1,  and  y.  S.  of  D.  is  privileged  therefrom  iy  Grant 
of  the  King,  there  his  Sum  pall  be  recouped,  and  the  Vill  ihall  be  charg'd 
of  the  relt.     Per  tot.  Cur.  Arguendo,  quod  nota.  Br.  Quinzime,  pl.  5. 
cites  19  H.  6.   63. 
4  Le.  III.         5.  It  was  held,  that  Fifteenths  are  to  be  levied  of  Goods  and  Chatties 
pl.  227.  ^-^^ properly,  and  one Townfliip  fometimes  is  richer  than  another,  and  there- 
fore it  is  not  Reafon  that  they  pay  their  Fifteenth  always  according  to 
the  fime  Proportion.     But  by  Clerk  Baron,  where  the  Ciiflom  has  been, 
that  the  Fifteenth  ihould  be  tax'd  according   to  the  .Quantity  of  yicres, 
there  the  Rate  and  Purport  fliall  be  always  one,   wholbever  holds  the 
Land.  4  Le.  185.  Trin.  32  El.  in  the  Exchequer,  Bartafe  and  Hind's  Cafe. 
6.  -Since  the  Time  of  Aiagna  Chart  a,  the  Manner  of  the   Fifteenth  is 
alter'' d  \  for  ?/ote;  the  Fifteenth,  which  is  alfo  called  the  Task,  is  not  ori- 
ginally 


Prerogative  of  the  King.  1 9 1 


ginnllyfet  upon  the  Polls  as  at  that  Time  it  was,  hut  now  the  Filteenth  is 
certanily  rated  upon  every  'to-wn.  And  this  was  hy  Virtue  of  the  King's 
Commijfion  into  every  County  of  England  in  8  R.  3.  Taxations  were 
made  of  all  the  Cities,  Boroughs  and  Towns  in  England,  and  recorded^ 
in  the  Exchequer  ;  and  that  Rate  was  at  that  Time  the  Fifteenth  Part  ot 
the  Value  of  every  Town,  and  therefore  retaincth  the  Name  of  Fit- 
teenth  iHll.     2  Inlt.  77. 


(G.  d)     n%   lliall  pay  h. 


There  Is  no 

K umber  to 
this  P!eu  ia 


Ex- 


C 


[!■]  \T  3iD(£  the  Form  of  aflcffing  it.  34  €.  u  EOt.  PatC^CUllJ.  If >^ /''=^ 

V   12.    I  (Q.  3. 2»  Rot  pat.  part  u  Q^uU.  7>    ^,, ,   ^  s  p  Br  .x 

2.  Note  that  Cities  and  Boroughs  fh all  pay  to  the  Tenths^  and.  Uplands  ^^^^^^^    pl_ 
to  the  Fifteenths.     Br.  ()uinzime,  pi.  8.  cites    11  H.  4.  2.  and  fays,   this  15. 

was  likevvife  agreed  in  the  Exchequer,  Anno  34  H.  8.  d     S  P  Br  Ex 

3.  And  lee  in  theRegilter  181,  that  none  Jh all  pay  to  the  Tenth  but  Bo-  ^;^^^i^^[  ^^ 
roughs.,  and  Tenants  in  ancient  Deinefne  and  others  jh  all  pay  to  the  Fifteenth.,  15. 

and  none  (ball  be  double  charged^  nor  compell'd  to  pay  to  the  one  and  tlie 

other.  I6id.    and  cites  F.  N.  B.  ,     r  r       ^f. 

■4.  A.  was  alfefs'd  to  a  Fitteenth,  but  upon  Refufal  to  pay  the  fame,  \^^_-  ^o-^ 
the  Colleftor  diltrain'd  his  Bealts  and  fold  them.      A.  brought  Trefpals.  t  ^  ej,,  ^  q 
The  Colleftor  exhibited  a  Bill  againll  A.  who  Ihew'd,   that  the  Statute  by  Name  of 
29  Eltz.  which  enachd  this  Fifteenth.,  Provides,  That  it  fljould  be  levied  of  Stedd'.  C*!c, 
the  Moveable  Goods.,  Chatties,  and  other  Things   ufual  to  fuch  Fitteenths 
and  Tenths,  to  be  contributory  and  chargeable.     And  lh;:w'd  turther. 
That  his  Beaffs  difirain'd  were  tempore  Diflnffionis  upon  the  Glebe-Land  of 
a  Parfonage-Prefentative,  which  he  had  in  Leafe ;  which  Glebe-Land  is  not 
chargeable  ufual  If  to  Fifteenths  granted  by  the  Temporalty,  nor  the  Cattle  upon^ 
it.     It  was  theOpinion  of  the  Juftice.^   That  tho'  the   Parfon  himlelf 
iiiall  pay  Tenths  to  the  King,  ytzt\\<i  Lvy- Farmer  \\\A\  pay  Fifteenths, 
and  his  Cattle  are  dijlrainable  upon  the  Gkbe-Lands  of  the  Parfonage.   And 
fo  the  Diltrefs  and  Sale  were  awarded    lawful.     3  Le.  2/9.  pi.  344. 
Mich.  32  Eliz.  B.  R.  Sledd's  Cafe. 


(H.  d)     /;;   refpeB  of  othr  Charge. 

I-     A  Ji2    Sl-'bOt  Of  OtIjCt  Religious  Man  Hiall  not  be  charg'd  to  the 

x\  Fifteenth  lor  thofe  Goods  of  which  he  pays  a  Tenth  among 

the  Spiritual.     (0i5e  tl)i0)    i  €♦  2,  EOt>  pilu  ^^CUlb,  7»     3  €.  2, 

Hot  }3at>  ^cmlu  27,  ^imeT-.; 

2,  If  an  SiilOt  lie  CijargCll  for  Tenths  for  his  own  he  iliall   not  be  ^j^j's'^q'' 
charged  for  the  fime  for  a  Fifteenth.   1 1  I)»  4.  35,  ^D)Ui!!ii"Ci3t 

3.  Jf  Land  tZ  difcharged  of  Fifteenths'  in  the  Lands  of  the  Abbot  Br.  Quin- 
in  relpect  ot  Tenths  pilltl  bj?  ijlUt,  tf  tljC  lailtl  alter  comes   into  the  ^!["^j;P'(^'' 
Hands  of  Tenants,  and  aftCr  comes  back  to  the  Abbot,  JJCt  It  (0  ItOt  i4/Tiurn, 

cljnrgcabie*  iitp*4. 35^*  37*  And  the 

King  m.fv  be 
Terved  of  his  Sum  of  tlie  Goods  of  other  Lay-Tenants.—  It  fliall  be  dirhavg;ed  of  the  Tenths.  Per 
Thirn.  And  therefore  it  fccms  that  it  fliall  pay  the  Tenth  again.  Br.  Extiiiguifhments.  pi.  12.  cites 
uH.  4.  34,  55. 

4*3;f 


1 9'^  Prerogative  of  the  King. 


4»  3f  HilUtJ  has  been  charged  oi  Fifteenths  in  the  H.inds  of  the  Ab- 
bot, and  there  are  no  Inhabitants  upon  the  Land ;  it  alter  there  are  In 

habitants  3115  (I  mi,  I'ct  tijc  3'nl)abitant0  fljall  pav  Mccmm,  tfta" 
mil  Loin  pnyss  ^nitDs  for  tljc  fame  um.   1 1  ip;4»  36.  h. 


ir.'"''-^  (I.  d)     Fifteenths.     Tuffbs. 


p).  5. 

^*  ILJ^  ^^fi'^   's  affeffed  in  one  Vill  by  his  Bcafts  or  Goods  tO  tfiC 

in  -f  Utccntfis,  cannot  bz  mm  nlfa  in  nnotljer  mi    1 1  fo.  i 
2.  21  mn  tanmt  m  nircOcli  to  t!je  i^iftccntfj  for  certain  Beaits,  if 

Br  Oum-     y^  '''^5.!?"i  f">'  ^e=ii^s  at  the  Time,      u  i),  4,   36,   Iv 

zime'pl.  4.        3»  It  i  mU  Terretenants  lU  il  JDlU,  auU  tljCi?  pay  for  their  Goods 

ckcSC  per  to  the  Fifteenth,     3,  tDljQ  IjnllE  nOtljUlO;  III  tijC-DlIt  tJtlt  tijC  R ent  Of 

Ha:^.ic  _     nip  'is:cmm,  ih.u  not  pay  to  tlje  jftfceaitt)-    1 1 1).  a.  45.  b. 
cit«s.cp'cr  ^Pi  m  to  tije  Jfiftccnt!)  tot  m  Goods,  nun  3  n>iU  paP Nothing  tS 

Skrene.  the  IvenC.^     1 1   i^.  4.    45.    [).  -  d 

Br.  Qiiin-         5-  So  if  my  Tenants  pay  Fifteenths  for  their  Chattels,  I  fhall  not  pay 
chesS^c''     ^^"^/^'■jheP.ent  of  the  fame  Land.     7  JP  4-   33- fa-     aHmOsm 
cueso.c..  6_  ^^  jj  Manor  UC  annexed  to  the  Spiritualty  of  a  Priory,   and  the 

Prior  is  taxed  after  among  the  Clerks  for  this,  p£t  tlje  Tenants  in  Fee 
of  the  Manor  ihall  be  taxed  to  the  Fifteenth  among  the  Temporal  Men 
29  (25  3.   28.   h.  1^  r  ' 

7.  !3nU  fo  the  Prior  Ijiinfeif,  if  any  of  thofe  Tenements  in  Fee  come 
to  *  him  by  Efcheat,  fijflU  Uc  tatCtl  tO  tljC  MiCtlltii  fOt  tfjCm.  29 
iC*  3-  28.   ti» 

8  But  if  any  Cciicuicntjs  loljidj  iucrc  iit  tDc  fpantid  of  tije  Tenants 

by  Bondage,  Oi;  Ci  '(E^^eurUltjS  lor  Life  or  Years  at  the  Time  of  the  An- 
''^""^l'^^^^  the  Manor  to  the  Prior\-,  fijall   afCCC   COJlte  tO  tljC  BUOt 

in  IpoMfion,  ijc  fiiail  not  be  taccn  to  tijc  jriftccutij  fot  tijcnu   29 

(L-  3-  2S.  13. 

9.  9  //.  4.  7.  Enafts  that  Goods  pall  be  chargeable  towards  the  Payment 
of  Tenths  or  Fifteenths  in  the  Place  -where  they  zvere  at  the  Time  the  fame 
-ivere  granted ;  howheit^  none  fhall  be  tivice  charged] or  his  Goods. 

10.  The  ancient  Way  was  by  Tenths  and  Fifteenths^  then  hv  Stibftdies 
and  after  by  Royal  Aids  ^  and  at  lalt  by  a  Pound  R:7te  ;  the  former  were 
ail  on  the  Perfon  or  Perfonal  Eltate,  and  were  much  the  fame  Thin»-  j 
the  latter  was  upon  Rents  and  Lands.  In  8  £.  3.  a  Valuation  was  made 
on  all  the  Towns  in  England,  and  returned  into  the  Exchequer.,  which  b^^- 
came  the  Standing  Mcafiire  for  taxing.  The  firit  Sublidy  was  in  and  by 
32  H.  8.  50.  which  was  a  Tax  on  the  Perfon  for  his  Lands  and  Goods, 
payable  by  the  Party  wh&re  he  lived  ;  and  this  continued  till  15  O.  1. 
The  Alfeflment  of  Tax  according  to  a  Pound  Rate  came  in  in  17  Car.  i. 
and  there  was  a  Claufe  impowering  the  Tenant  to  deduft,  and  fo  it 
was  in  1642,  44,  49.  and  thence  it  came. to  be  pro\  ided  in  Conveyances, 
that  there  fhould  be  no  Deduftion  of  Taxes,  2  Salk.  6i<.  Hill.  9  \Y . 
3.  B.  R.  Brewfkr  v.  Kidgell. 


(K.  d.) 


Prerogative  of  the  King*.  ipc^ 

(K.  d)     For  'what  Goods  they  fliall  be  taxed, 
[i.]  r\^  m^  CiTi-ation  of  mm^  of  tijc  ComminaltP  of  nil  tijc  SiXiT 

\y  Counties   fijilU    ht  fOiCpmCD   Armour,     *   Horfe  Furni- this  Pka  i.i 
ture,    Hud  Robes  to  Knights,  and  to  Gentlemen  and  their  Femes,  and  ^°": 
tiieirVcilclsot'Goldjof  Silscr,  andot'Bralsi  gjltl  in  Cities  and  Boroughs  ^^.^'''S-  ]'^ 
are  to  be  excepted   one  Robe  for  the  Man  and  another  Ibr  the  Feme,  )ueux".)"'^' 
and  one  Bed  fot  tiOtl),  one  Ring  and  one  Buckle  or  Clafp  of  Gold  or  j  Orig.  is 
Sil'.cr,  or  one  Girdle  f  of  Silk  which  Ihe  always  ufed,  and  nlfO  one  ( '^c  S=y-) 
Cup  of  Silver  or  of  ^  Na7.re,  OUt  Of  lUljICl)  tljCP  DtinU.   QuH  Of  Goods  Jg^^^;',^  J 
of  %  Houfes    there,  where  they   are    governed   by  Sovereign,    they  fics  (^Mofhcr 
are   not  to  be  taxed  nor  prifed  ,  and  if  they  be  Jkoufe  governed  by  of  Pearlc.) 
a  II  Mefne  Lord,   their  Goods  Oiall  be  taxed  as  well  as  others  are.    $lnb  +'  ^'.'K  '' 
of  Goods  of  People  out  of  Cities,  Burghs,  and  Demefnes  of  the  King,  (^^^'j^''^l5.) 
which  Goods  are  found  by  Taxation  not   to  exceed  the  Value  of  ten /M-^ftfeO 
**Soudes,  nothing  is  to  be  demanded  or  levied  ;  nor  of  Goods  of  Peo-  '■*  Soudesor 
pie  oi  Cities,  Burghs,  or  Demefnes  of  the  King,  which  do  not  pafs  the  Soudis  h 
Value  of  I?  Soudes,  is  any  Thing  to  be  demanded  or  levied.  ''"''"  ^^^^'^Y 

•"  ■'  °  current  at 

Orimi>,  in 
the  Perfian  Gulph,  and  is  of  the  Value  of  about  lo  French  Sols.-      Richelct's  Dift  — A  Sol  is  about 
an  Engliih  Penny.     See  Boyer's  Diet. 


(L.  d)     y^t  uhit  FliKC  it   may  be  taxed, 

i»TJr  a  93iin  has  Land   in  a  Vill,  fow'd  with  Corn,  and  has  ufed  The  Cafe  ^ 
^   Time  out  of  Mind  to  carry  the  Corn  to  another  Vill,  and  fpend  ^vas  thatF//- 

it  there,  if  tljc  Cotii  ttas  sjroiuiuo;  tljcre  ut  tl)c  Cinic  of  tfje  &xmt  'XLTZ 
of  tlje  ifUtcentl)^  anD  at  tfje Cniie  of  tijc  aiTernnn;  of  tIjc  ^Mm,  aiiQ  the  Ktncr,  at 
Ijc  tatcti  for  tijisi  Corn  tfjerc,  tijo'  {)c  carries  it  into  tlje  otijer  a^iil  af=  ^^'^ich  T.me 
ter,  nccorDmiT  to  ti)E  J>)rcrcnptiO'T,  anti[itis]  tljeretarcn,  vtttlKr>f^';'^''"i"- 
fljaii  be  r!ini<u-t«  'iDjcrc  tljr  firft  Star  uia^.   21  e,  3*  4-  ^^  "  i^'l  cZ   ' 

2.  But  OtnU iDllt  it  !)aB  been,  if  i)e  had  brought  the  Corn  after  the /rrowh?,  in  H. 
Grant,  and  before  the  Taxing  Of  tfte  POlCS  aCCOtHiUS  tO  tijC  l^Xt=  "'"^ kf-'^-'  *h' 

fcription,  anti  tijcre  fjau  been  tareu  toctijem,   21  c.  3  42-  b»  bp  ^^'rf;--^-" 

J>\wA%,i,  and  earned 

his  Corn  to  IV. 
as  he  and  his  Jncffrcrs  had  ufcdto  do^ime  out  of  Ifind,  and  was  .iJJ'i'Jfed  for  that  Corn  and  hit  ^ther  Corn  in  /f 
and  ye^  was  affeficd  fhr  the  fame  Com  in  H.  and  the  Collector  dilh'aiu'd  him,  and  he  fucd  Replevin,  and 
the  other  avowed  for  the  Fifteenth  &c.  and  the  fjfue  was  taken,  If  he  had  Corn  in  H.  at  thsTitns  of  tbi 
JJfeJfment  or  not.     Br.  (^inzimc.   pi.  6.  cites  S  G. 


(M.  d)   How   it    may   be   kvkd. 

I.     A    COHeCtOC  of  a  JfiftCentlj  may  levy  all  the  Tax  of  a  Tow  n-  Manwood, 
£\_  Ihip   upon  the   Goods  ot  one  Inhabitant  only  if  Ije  lUlU,   ailtl  ^-li  B  gave 

tlje faiD  ^nljabitnnt  fljaU  Ijaue  atO  of  tlje  Crcljiciuer  to  \m\\t  cuerp 'iH^'^FZ' 
otijer  Sutjabitant  to  be  coutributorp.   Cr.  8  Jiac.  ^cacc    li^eraucounfci- 

CUrianU  lor^  at  Law, 

That  they 
did  not  »dvife  any  Colli-ftors  of  Subfidies  or  Fifteenths,  to  hrin^  Bills  in  the   Exchequer  Chamber  fcr  the 
Non-payment  of  ijublldie.s  &c.  for  iuch  Bills  fhould  not  be  allow'd  hereafter,  hecaufe  they  had  Remedy  iy 
Diprefs.    Itwa^allb  holden,  that  if  any  bcalieft'd  for  the  Fifteenth  whicli  he  ought  to  p.iy,  or  if  two 

C  c  c  Towns 


ip^  Prerogative  of  the  King; 


Towns  are  to  pay  too;etlici-,  and  the  one  I'own  is  taxed  more  th^n  it  cuplt  to  be,  or  had  been  accullomed, 
thote  w.  hich  aie  "i-ieved  by  flich  SeiTmcnt  niny  have  a  Ccmmijfien  out  of  the  Excher^usr,  v/hich  is  ralled^i'^i! 
a(4ualitrr  taxat.d-  and  that  was  put  in  Urc  in  a  Cafe  between  ©filtaft  and  ifjUD,  where  ore  of  them 
was  I-ord  of  the  Town  of  Liitlc  Marlr.c,  and  the  other  of  Hcdford.  And  as  to  tlii.sConiminion,  Jd 
xijiir.liter  t.rxand.  Manwood  and  Fanfltaw  faid,  that  they  could  fliew  above  20  Precedents.  4  Le.  185. 
pi.  1S6.   Trit!.  32  Eliz.  in  the  Exchoiuer. 4Le.iii.  pi.  2i;.  S  C. S.P.zInft.;^. 

2.  The  King  is  not  inheritable  to  the  Fifteenth,  but  yet  when  it  is 
granted,  the  King  is  inheritable  to  dijirain  for  it.  Per  Hill  [and 
Norton.]  Br.  Quinz.ime.  pi.  3.  cites  11  H.  4.  35. 

3.  At  a  Convocation  the  Clergy  gave  to  the  king  ly  the  Hands  of  a  Jl^c- 

tro-politan,  T-wo  Shillings  in  the  Found  of  the  Temporal  Po[]effions  0/   Rcligi- 

OHS^  and  Tisoo  Shillings  in  the  Pound  Jor  the  Tenths,  in   the  Defence  of  the 

^^..   .  Church  of  'England;  &nA.  the  Exchequer  awarded  Fieri  facias  againft  Ab- 

(E.b)^        bo'^s  &:c.  to  levy  it,     Br.  Quinzime.  pi.  1,  cites  2S  *  H.  6.  ii. 


(N.  d)     Suhfidj. 

%  lX\pAX\m\m\U  the  Commons  were  fpared,  fintl  tlje 

_  _^^  Nobles,  Biihops,  Abbots,  Judges,  Efquires,     Parfons, 

Knights,  Vicars,  and  all  Spiritual  Perfons  charged  \XAt\}  tIjC  ^UbfllltCSi. 

^pcca  590. 

2.  I  ©r  2.  Kiel).  2,  a  g^UbflO))  Uia0  granteU,  That  every  Man  or 
Woman,  under  a  certain  Age,  Ihould  pay  by  Poll   12  d.    UlljICi)  UlilSi  t|)C 

prcten'ocD  Caufc  of  muclj  93ifcf)tef  after* '%  ^txmz.  ©occb.  594* 

3.  Sitf^Cime  of  f))»  s,  a  @)iibfitip  uiass  grantcn,  ta  luit,  the  Tenth 

Part  ot  all  Temporal  Subltance  ^  auH  CarDilUll  JIBOOlfCP,  UlijO  IjaB  tlje 

CijargC  to  ICHP  would  [have]  had  every   Man  fworn  tor  his  Wealth, 

buttijc  Ctti^en^ot  Lontion  refufcn  it, 'aim  tijc  Bins  tuag  UifpIcafeD 
mt\)  ilBoolfcp  for  it.  g^pceo  761. 

4.  4.  c  3*  5.  Cljere  ina^  a  fpecial  (J5rant,  fcilicet  for  every  Knight 

&c.  lor  every  Trown  an  armed  Man,  to  go  into  Gafcony  $C.    aitU  tt)i0 

par^oneu  bp  tije  l^tug. 

5.  i8.C»  3*  cap.  I,  2»  Tenths  and  Fifteenths  granted  tO  tijC  MW^ 
to  go  into  Frances  So  that  the  Money  lc\)ICO  Of  tfjCfaUIC  be  difpendedin 
the  Bufmefs  fliewed  to  them,  in  this  Parliament,  by  the  Advice  of  the 
great  Men  thereto  affigned:  And  that  the  Aids  beyond  Trent  &c.  be 
put  in  Defence  of  the  North. 

6.  The  Sublidy  is  uncertain^  becaufe  it  isfet  upon  the  Perfon  in  refpeif 
of  his  Lands  or  Goods,  which  commonly  do  ebb  and  flow.     2  Inft.  77. 

*  See  the  7-  -^K^^Hi^  at  the  Time  of  the  Confirmation  of  Charters  &c.  *25  E.  i.  was 

Statute  at      a  general  W^ord,    not  only  including  Aids  due  by  Law  and  Tenure,  as 
(E-  a)  Aid  to  make  his  Son  a  Knight,  to  marry  his  Daughter  &c,  Butyf/Wj  alfo 

granted  ly  the  Free-will  of  the  Suijcffs  in  Parliament^  which  afterwards 
were  called  Sublidies.  2  Inft.  528.  in  his  Comment  upon  the  A£l  of  the 
Confirmations  of  Charters  of  the  Liberties  of  England  &c.  made  25.  E. 
I.  where  Lord  Coke  ftys.  That  yet  the  Matter,  upon  which  that  Ait 
was  made,  was  never  in  quiet,  until  it  was  more  particularly  explained 
by  divers  Acts  of  Parliament,  which  we  have  drawn  into  one  Body  of  a 
Law  divided  into  feveral  Branches,  i.  No  Manihail  be  charged  to  arm 
himfelf,  or  to  find  Men  of  Arms,  or  any  Hoblers  or  Archers  (other  than 
thofe  who  hold  by  fuch  Services,  or  Devoires  of  the  King,  or  of  other 
Lords)  if  it  be  not  by  common  Confent,  and  grant  in  Parliament.  2, 
No  Man  fhall  be  compelled  to  go  to  the  King's  War  out  of  his  Shire, 
but  where Nece/lity  offudden  coming  of  (Irange  Enemies  into  the  Realm 
3.  No  Man  fliail  be  charg'd  to  give  any  Wages  either  to  the  Preparers  or 

Conveyors 


Prerogative  of  the  King".  ip; 


Conveyors  of  Soldiers,  or  to  the  Soldiers,  to  go  into  Scotland,  GiilLoii;n, 
or  elfevvhcre  ;  but  that  Men  of  Arms,  Hoblers,  Archers,  chulen  to'go 
into  the  King's  Service  out  of  England,  Ihall  be  ut  the  King's  W^iges 
from  the  Day  they  deprirc  out  of  the  Counties  v/here  they  w  ere  cholcn, 
till  they  rerurni  which  Afts  of  Parliament  are  but  Declarations  of  the 
ancient  Law  ol  England  ;  And  according  tothis  imtient  Law,  the  Com- 
mons after  the  laid  declaratory  Afts  of  Parliament  did,  when  this  Point 
concerning  Maintenance  of  Wars  out  of  England  came  in  quellion,  make 
their  continual  Claim  of  their  antient  Freedom  and  Birth-right,  as  ia 
I  H.  5.  and  in  7  H.  5.  See.  the  Commons  made  Proteltation  chat  they 
were  not  bound  to  the  Maintenance  of  War  in  Scotland,  Ireland,  GJice, 
France,  Normandy,  or  other  foreign  Parts,  and  cauled  their  Protelta- 
tions  to  be  entered  into  the  Parliament  Roll,  where  they  yet  remain; 
which  in  effect  agreeth  with  that,  which  upon  like  Occallon  was  made 
in  this  Parliament  of  25  E.  i.  But  here  may  be  obfervcd,  that  when  any 
antient  Law  or  Cultom  of  Parliament  is  broken,  and  the  Crown  polieHed 
of  a  Precedent,  how  diificult  a  Thing  it  is  to  rellorc  the  Subjeit,  aguin 
to  his  former  Freedom  and  Safety. 


(O.  d)  Martial  Affairs,  J/ifls   and  *  Turnaments. 

i.  ilrTlEX  Comitibus  Baronibus  Militibus,  f  OmmlUlS  itHiS  (lOC  ttt^  *^^  ^-"""II- 

Ix  ftanti  'Oxz  npuG  laingScn  con\3cnrar»   aa  ^^abacncaiiujifcuni  tl^nm' 

ib!5Cin  @)aIlltCU1.    Prohibemus  vobis  fub  Poena  Amilfionisomnmin  Tcr-  d-curfjs   of 
rarum  %  %iU\\mmm\\\^  QiUe  III  EefJlIO  UyftiO  tCnCtI0,  \\Z  ibl  l!tt  ailOi  Taininfj'and 

Hiito  Die  ijel  alifSDieliug  tumeare,  iuitosi  faccrc,  CtUfntuix  tiu-^rcrr,  ^"^^-^iing,  in 

feu  ailO  ^3^atJ0  an  l^rUia  ire  praefUUlCtl^  line  ll  licentia  noltra  fpeciaii,   u  the^A'^Htv- 

€♦  u  £vct  pat  Q9eiu!3>  15. Conrimilc  ^zxi\%  17.  ©uniie 2,  (£♦  u a.. weuof 

EOt.  PatC^Cmlj*  19*   22,  24.  theHoi-fe  as 

r.f  the  Mun'; 
For  in  thofe  Days  this  Deed  of  Chivalry  v/as  at  Random,  whereupon  great  Pei-il  enfucd.  Therefore  in 
the  Rei^nof  £  ;.  for  Safety. :^  There  is  no  Number  to  this  Plea  in  Roll. 

II  But  if  the  King  makes  Proclamation,  ^hat  there  pall  he  J^ufis  andl'iim.inietus  &c.  And  cr.e  kills  an- 
ther in  Juftint;  &c.  it  it  not  Felony.     Contra  where  it  is  without  Command  or  Proclamation  ot  the  King. 

Br.  Proclairation  pi.  15.  cites  11  H.  7.  25 Br.  Corone.  pi  228.  (229)  cites  S.  C.  per  Fineux. <- 

S.  P.  ;  Inft  56.  cap.  S.  cites  11  H.  6.  22. S.  P.  ;  Inft  160. 

In  the  Keignof  H  2.  it  was  enadtcd,  that  if  in  fuch  Cafe  one  was  (lain  it  fhould  b:  no  Felony  ;  For 
that  in  a  friendly  Manner  thev  contended  to  try  their  Strength,  and  to  be  able  to  dothe  King  Service  in 
that  Kir.d  asOjcafion  ihould  be  oft'jred.  5.  Inft.  56.  cap.  8.  cites  Mirror,  cap.  i.  S.  i;.  Des  Aventures. 

Bacon  of  Government,  in  his  fecond  Book  cap.  11.  pag.  107,  108.  lays  that  this  of  Turnamenc 
crowded  at  length  among  other  Things  to  be  uvder  the  Determination  of  the  MarfvArs  Court-,  ihj  Jime- 
times  under  t'^e  VirecUoii  of  tie  Conflable  of  England,  as  well  as  at  other  Times  under  the  Muifliall;  And 
calVs  it  a  A  Sport,  t:i ich,  like  a  Sarcafm,  tickles  the  Fanc)\  hut  'Jjoiuuh  the  He.irt,  and  being  of  as  little 
Ufeina  Commonwealth  asof  Beaelit,  is  therefore  laid  afide. 


(P.  d)     *  Mimige.  t'^'P.S' 


I.    \£d^B^t\)t liJctitiouj)  or i:i)ailtamcnt of  i s  e.  i ,  tijere i.s * ^^^."sf, -^ 

£%.  fUttj  prCJttOn,   Civcs  London  pecuut  Muragium  propter  JX-te-  ^^'fto  be 
riorationem  -\Jurorum  ;  Rex  non  vidit  quod  lit  Neceliarium.     i,  (J^»  2»  tat^n  ofe- 

EotliJtU.  part*  2«^.  17,  l^ro  $^iirag>  Lonn*  4»  <25, 2,  Eot,  pat  v.ryCart, 
^*-°*  '  hS^ 

coming  to  that  Town,  j:r  the  incMin^'r  of  that  'fiivn  mih  If^alls  of  Defence /ir  tht  Safeguard  oj  the  rcopli 
in  Time  of  War,  InfurrecHon,  Tumults,  or  Uproars,  and  is  due  cither  by   Grant  or   Prcicription.   2 

Inft  222  But  if  a  Wall  be  made  which  is  not  dcfenlible,  nor  for  Safeguard  of  the  People,  then 

ovightnot  this  Toll  to  be  paid  ,  For  the  End  of  the   Grant  or  Prefcription  is  not  pcrfirmed.  Ibid. • 

M  urage  is  only  a  Toll  payable  for  tl:e  Reparation  of  Walls  out  otThiiigs  fold  in  Market  overt  by  Re- 
tail 


196  Prerogative  of  the  King. 

nil,  and  does  mt  lie  in  Grant  hut  in  Prrferipicni.  Dav.  Rep.  13  a.  Mich  5  Jac  B,  R.  in  the  Calc  of 
Cuftoms. 

There  is  no  ("2  J  23,  ^  i»  Kb.  \^^lxh  104^  Ad  Petitioncm  Hominum  Wigorum, 
eh^nea^n  ^"°'^  Rcx  vclic  eis  coiicedere  Ai  urygium  pro  Villa  lua  claudeiida  ad 
the  Roll.       -ecuritatemejuldem  Villse.     3;ta  EClpOUfUm,  fiilt  pcr* 


(Q^  d)     Trofiiige.     P(p^e. 

There  is  no  [^i.]  r-|-Ronagium  ticbct  1330  de  Lanis  f  Pcfagium  deMercibus,  antl 

the  Roll.     'B«E»rvOi\  124* 


(R.  d)     u4uhnge. 

p7ynnVs^  I.  Tl  C)-^.  X^Xti,  22,  C,  3»  B»  3I5  32,  -^DberC  10  a  Petition  of  the 
Cott.  Rec^        J|[\    VVorkersofClothesofWorltedinJi^OrfOllt,  againft   the  Office 

^i '^2 's  c  '^f  tyc  Map  oftljc  aulnagc  ot  jJBorftcti  gcantcn  to  Eobcit  ce  polcp, 
'"  ■      UJljicOmg  after  repealed  b)JtljeCoiinfd0ftl)el^mga.3tt)crc  appears. 

Prynne's  2,  KOt.  I^ati,  27.  (£,  3,  It,  1 1,     %\)Z  Commons  piav  to  take  away 

cntt.  Rec.  the  Office  Of  aulnasc  anfiucc,  Cijcj)  fijall  treat  to  si^e  Eccouipence 
Abr.  ;i.  §- {Q  ttje  ©fficer, 

Pi7nne-s^' '^'      3 »  EOt,  Patl,  25  C,  3»  »  Patt.  B,  4°'  Cf)C  Commons  pray  that  the 

Cott.  Rec.     Office  ot"  Auhiage  be  taken  awav. 

Abr  -6. 

N*^.  46    Is  [vi/]  a  Motion  touching  the  Auinage  and  Mcafu re  of  Cloth.    Anfwer,  by  a  Special  Statute 

made  thereof  in  this  Year. 

4.  25  Ed.  3.  1.  AU  Mixnner  of  Cloths  vendible^  fJjc.Il  be  meafuredby  the 
King's  Atthuiger^  or  his  Deputies^  and  all  Ckths  which  pall  be  found  of 
lei's  Alt  af lire  by  a  Tard  than  the  yijfize  pall  be  j  or  felted  to  the  King. 
Aninforma-  '  5-  27  Ed.  3.4.  Cloths  pall  HOt  be  Joifeited.^  alt  ho'  they  ivant  of  the  JJife; 
tion  was  but  the  Ktiig's  Aulnagcr pall  meafure  the  Cloth,  and  mark  how  much  it  con- 
broughta-  taiuf.,  and  jor  fo  much  as  the  Cloth  ^vants  of  the  Affife^  an  Allowance  pall 
frr'd*^^  ^f  »/.?</<? /-o  the  Buyer,  and  the  Aulnagcr  pall  ha-ve  for  his  Fee,  an  Halfpenny 
■vvhe^rein"he  /<""  ^  '''I'hole  Clctb,  and  a  Farthing  for  half  a  Cloth,  and  7iothing  for  Cloths 
Informer  that  are  lefs  j  but  Cloths  offered  to  Sale  before  they  are  marked,  pall  be  forfeit- 
fas  forth,  g^  fQ  the  King,  and  taken  into  his  Hands  by  the  faid  *  Collc(for  or  Aulna- 
tliat  onluch  ^^^^  ^^  ^^  ^^^.,  jy^pufy  (f  one  of  them,  or  elfe  by  the  Bail:ff's  of  the  -toivn  where 
Places  Te     /"^'^  vendible  Cloths  not  fealed  (hall  be  found. 

didfeifeas  6.  There  were  feveral  other  Statutes  concerning  A uhiage,  As  3  i?.  2. 
forfeited,  a    c^f.  2.  which  enafted.  That  //  the  Aulnager  fcal  f.uilty  Cloth,  or  fcal  it 

^dMe'i'fs "  /"'■  "'^^'^  ^^"'^''^  ''  "'  ^^''  ^^^^^^P''-^^  be  forfeited,   and  he  puittpjed. And 

^"rfandano-  ^Ifo,  I'i  R.  2.  cap.  II.  which  exempted  coarfe  Cloths  from  being  of  the  Affife  of 

thcr  called  a  Other  Cloths. And  alfo,  17  R.z.  cap.  2.    which    enafts,  That  e^jer)^ 

jhjs,k  Bays,  Man  of  the  Realm  may  make  and  put  to  Sale,  and  fell  Cloths,  as  ivcll  Kerp'es 
of  pfrfons*"^*  ^j  other,  offuch  Length  and  Breadth  as  hmfelf  pleafe,  paying  the  Anlnage 
unknown,^  Suhfidy,  and  Other  Devoyers,  that  is  to  fay,  of  every  Piece  of  Cloth  after  the 
made  and  Rate,  notivithftanding  any  Statute,  Ordinance,  Proclamation,  Rcfiraint,  or 
wrought  to  Defence  made  to  the  contrary,  and  that  none  Ih  all  fell  or  put  to  Sale  any  Clothes 
fell  and  ^^-  i^^jQfg  that  they  bc  meafured  by  the  King's  Auhiager,  and  fealed  with  the  Seal 
■tt'l'ichwere  to  that  ordained,  upon  the  Pains  contained  in  the  Statutes  thereof  made,  and 
pHttoS/zie,     that  no  Man  pall  put,  meddle,  caufe,  ncr  make  other  Difcat  in  tic  Clothes  of 

not  being        Kcrftes,  Upon  Pain  of  Forfeiture  of  the  fame. And  alfo,  5  £r^  6  E.  6. 

^T^^A^^A     f '^■•^P-  ^-  which  ^r.vj  a  Forfeiture  of  zo  s'  for  not  paying  ihe  Aulnager' s  Fee, 

and 


Prerogative  of  the  King.  197 

and  prohibits  Cloth  to  be  exported  without  the  Aulna'rer's  and  Ozvncrs  Seal,  th"  Mal-cf, 

And  alfo  the  Aft  ot"8  AY/s.  5    which  enaas,  That  the  Length  o/';,f^,J^^^j^^ 

Laricajhlre  Chths pall  be  marked^  and  that  the    Oneens  Seal  (hall  be  /r'xed^.^^^.^  g^j, 
thereto  on  I'ain  of  Forfeiture.,  and  alio,  that  the  Aulnager  jhall  Seal  no  Cloth  Conu-a  For. 
iv'.thont  Weighing.,  on  Pain  of  zo  s.  for  every  Pack.     But  lince  thofc   Scu- »^<?m  .9/.j/«// 
tutts  there  is  a  Statute  made  as  tollows,  viz,.  r '^ij    5 

claimed  Property  feverally  to  the  fiiid  B;iys,  and  Icverally  demurred  to  the  Information  ;  The  Quellion 
was,  Whctlicr  the  Siibfidv  of  Aulii.ige  was  due  for  Bavs  bv  Virtue  of  the  St.itate  of  2"E.  ;.  cap  4, 
rot  being  any  of  the  Cloths  mentioned  in  the  .Statute,  andditlerirg  from  them  both  in  V\  eight,  Lengtu 
and  Jjreadch  1  Hale  Ch.  B.  laid,  That  it  would  be  hard  to  bring  tliem  within  that  Statute,  tor  the  Rea- 
Ibn  before  mentioned,  but  there  is  a  concurrent  Statute  ruade  Antio  17  11.  2.  can.  2.  which  m,.I<i;3 
theQiimtitv  a  neceflary  Ingredient  totheSuhddy  ;  For  17  R.  2.  proportions  the  Subfidv  gi"C!)  bv  27  ¥.. 
q.  which  ll-ttlcs  the  Duty  orly  ;  and,  agreeing  with  the  other  Judges  in  Opinion  for  the  Plaintifi-,  faid. 
He  grounded  his  O-.nnion  fortbe  Duty  upon  17  R.  2.  the  Words  whereof  arc,  (/'<?)■;»? //je  Duty  nciorcfinz 
to  the  Rite)  which  Words  bring  the  Statute  of  27  E.  3.  to  thatof  1 7  K.  2.  and  upon  both  "thcfc  Statutes 
together  the  Duty  arifes,  and  the  Penalty  for  Mun-pjyment  of  it ;  and  the  Generality  of  the  ^^'ord3 
(^CiorJhes,  .IS  ivi'll  Kerjifi  us  other)  comprill"  all  ;  and  there  cannot  be  more  comprehenflve  Words  to 
include  all  Manni-r  of  Clothes ;  and  by  the  Demurrer  they  are  confcfTed  to  be  Clotlies  as  laid  in  the 
Information.  Hard  205.  2 !  4.  Mich,  1 5  Car.  2.  in  Scacc.  Verc,  qui  tam  &c.  v.  Saniplbn  &  al 

*  Powis,  Turton,  and  Ward,  Ch.  B.  held,  th.u  no  Pcrfon  had  Authority  to  fci'c  the  Cloth  for- 
feited by  this  Statute,  but  only  thofe  very  Officers  exprtfll-d  in  that  Statute;  and  thevefore  they  held, 
that  a  Deputy  Auhiager  whofe  Deputation  extended  only  10  the  Ct  urties  of  Devoi  fliire  and  Cornwall, 
had  no  Authority  to  liiife  at  Ratclift'.    Carth.  326.  Trin.  6  W.  6c  M.  in  Scacc.  Martin  v  UrLfoid, 

7.-  II  t?  12  IV  3.  cap.  20.  S.  3.  Enacls,  that  the  Siibfidy  and  Aalnage 
of  the  old  and  ne-iv  Draperies^  and  of  all  IVcoilcn  Mannjaci tines  Jball  ceafe 
after  the  Grants  thereof  are  expired. — [Thofc  Grants  arc  long  lince  expired.] 


(S.  d)      Proclamation.     The  Force  of  a   Proclamation. 
LjliJlOeB  in  tOeCtniC  O^e.  i>  tIjC  ]e-^vs  were  baniHied  (5Ut  OftljC 

V  V   Ecalm,  ail  tljcir  Debts  am  ^uv^^'j  rcniatnes3  to  tijc  mws, 

antl  tUtrC  W  Cfj.ltteljJ,  nitO  tOCrCUpOU  Proclamati()  lolcmnis  hebat  per 
tocumRet^num,  6;  quod  omnes  qui  Debita  aliqua  alicui  Judeo  debebant 
autde  eorum  Debiti^,  Bonis  &Catallisaliquid  Iciebant,  Domino  Regi  auc 
alicui  deConciliofuo  fcire  flicerenr,  llC  qUa  qttiuCSH  J9rOC!nniat!0!ie  Htl!' 

\m  Diccre  potcft  qism  itiW  atn.  fcioiffc  ue'Jtnt ;  anB  tictmii:  tije  'D'> 
fcnoant  ioati  concralcn  a  certain  Dcbt,3:tico  in  9Mmcoma*  -zi  €^ 
I.  Ub*  |5atL  C2,  h.  63.  aBiuouc'a. 

2.  oDinc  (£gertou'p  l^ortniitt,fol»  12.  nnu  31  lp»  §»  cap.  s.  concent^ 
lUPitt)?  jTtirteoi|2'ro£iamation!3-  35  h.  s.  cap.  23. 

3.  15V  25  H.  8.  cap.  2.  5t  13  CnaCtCli,  that  the  Lord  Chancellor  and 
others  ihall  tax  the  Price  of  certain  Victuals,  and  that  alter  a  Proclama- 
tion under  the  Great  Seal  lliall  be  made  thereof,  and  that  V^ictuallers&c. 
ihali  be  bound  to  lell  according  to  the  Prices  let  forth  in  the  Proclama- 
tion under  the  Pains  to  be  exprelfed  and  limited  in  the  fiiid  Proclamation 
to  be  forfeited  and  le\ied  to  the  Ufe  of  the  King  in  fuch  Manner  as  by 
the  iiiid  Proclamation  iLall  be  declared. 

4,  OdV  25  H.  8.  cap.  12.  Jt  (3  enaCtCtl,  Th;it  Proclamation  Hull  be 
made  Of  ti)C  DCCCtt  Of  £ll?abCtl)  X^aitOll,  and  that  it  lliall  be  contained 
in  the  Proclamation,  that  all  Books  &c.  concerning  the  faid  Deceits 
Ihall  be  brought  to  the  Ld.  Chancellor,  under  Pain  otimprilbnment  and 
Fine  to  the  King,  and  that  every  one  [vvlio]  Ihall  ollend  againlt  this, 
being  thereof  bv  due  Examination  convitted  betore  any  of  the  Council 
of  the  King,  ftall  fufter  Imprifonment,  and  make  Fine  to  the  King  by 
the  Difcretion  of  the  Council  of  the  King,  and  according  to  the  Meric^ 
of  his  Oii(:;icc. 

Ddd  <.     ^1 


jpS  Prerogative  of  the  King. 


5.  35  H.  S.  cap.  16  The  Statute  of  Strangers  where  there  is  a  Provi- 
fo  that  the  Statute  ihall  not  be  prejudicial  to  the  Proclamation  made  by 
the  King  tOV  t1)C  l?il]i>niCnt  Of  CUftOlU  hV  €>tramjei-0  granted  to  endure 
lor  certain  Years,  but  that  the  laid  Proclamation  Jiiall  Itand  in  the  lame 
Force  as  it  is,  ar.d  as  ii"  this  Aft  had  not  been  made. 

t  Their  is     6*  27  E.  3.  osp  tijc  statute  of  tOc  ^'taplc  it  m&  ortiaiueo,  mm 

no  RicUYear  M„,„u„„,-<,    ^li'^r.^.  «n<i-h«-    f.irrn    nStrr   tnc   t.'5;^r.">   Cttrrr^.-j'iTi'rrci    nf  Hi» 


amin-  this  jp^iVdc  ntCCVDinglp  to  iDC!l!?en9  fOl*  a  certain  Cniie,  and  becaule  Mer- 
^Y:  The  chants  Denizens  doubteth  them  to  be  impeached  in  time  to  come  for  their 
y^^^^lj^^^' Merchandizes  which  they  havepaffed  by  *Virtue  of  fuch  GrantandProcla- 
*F(.l,2io.   mation,  tor  as  much  as  they  were  made  out  of  Parliament,  tijCrCfOfC  It 

Lx^v-^^jrj  grautct!  mm  lip l^ariwunent  iti  34 e.  3. 3.  cap.  21.  tp,  36^  e.  3*  K 

pcrtouim)  jn^  joj^j.  pj^j.  tQtijui  ,  Inditlamcntum  diverlorum  pro  Granis  trans- 
b"'"i"hr°  ferendis  in  partes  exccras  contra  Prohibicionem  Kegis  per  Proclamatio- 
and  (Rex)     nem. 

:H   leall-, 

leems  to  be  Surplullige  ;  but  the  Senfe  lecms  perfeft  enough  without  any  of  them. 

7.  i^ill.  I  C.  2v  15,  E,  Eot  3S»  "Di^ictii  impiaci'tantur  tic  to  nuoii 
centra  j^i'OLlauiationcm  EcgiS  €.  u  iuijibet^tcm  ne  quis  dud  lacerec 

extra  Regnum  ^InBU*  Equos,  Armaturas,  Monetam,  qUctcLinque  Vafii  Au- 
rea  feu   Argentea  m  Alalia  iine  Licentia  &c.   ipfl   abUU.tirvint  DtlserSi 

@um^of^0io$c. 

8,  Clje  l^ing  bj)  l^rOClamatiOn  map  make  the  Coin   of  a  Foreign 
Realm  current  here.  5  El.  cap.  11.  adniitted. 
Prynne's  ^^  j^qj^  \p^xU   1  ip.  5*  M*  lU  Power  given  to  the  Council  to  make 

^^"^.5'      an  Ordinance  that  the  Monies  of  England  be  not  tranlported  OUt  Of  ti^C 

Ko.'trs  c.Kcalnu 

ThcKiiif^by  10.  It  was  agreed  for  Law,  that  the  King  ]may  make  Proclamation  to 
his  Procla-    j^jg  Subjecls,  ^iiioad  T'crrcrem  Pcpiili  to  put  them  in  P'"ear  oi  his  Dilblea- 


mation,  ov 
otherways 
cavvot 


fure,  but  not  on  other  Pain  certain^  As  to  forleit  their  Lands  or  Goods,  or 
to  make  Fine,  orto  fuiferlmprifonment  or  other  Pain;  For  no  Procla- 
changeany  mation  in  itfelf  wiil  make  a  Law  Avhichwasnot  belbre,  but  to  confirm 
part  of  the  j^p,^}  j-^tify  an  ancient  Law,  and  not  to  change  this  or  make  newi  Yet  di- 
L,aw"'s"a-  \^rk  Precedents  ivere Jheivn  oni  oi  xht  Exchequer /o  the  contrary,  tut  the 
inxe' ovCm^- Judges  bad  iioRegard  to  them.  Dal.  20.  pi.  10.  2  &  3  P.  &  M.  Anon. 

toms  of  the 

Realm  ;  Nor  can  he  crente  My  Offence  by  Proclamation,  v.-lkh  avr/  vet  ayj  OffcKce  before,  that  being  to 
change  the  Law,  and  therefore  that  v;hich  cr.mwt  be  ptmjhcd  ii-ithout  Pyocltimathi:  camwt  he  p:imjhed  ivith 
it;  And  the  Statute  ;i  H.  8,  cap  8.  tlio'  it  gives  more  Power  to  the  King  than  he  had  before,  yet  ic 
is  there  declared,  That  Proclamations  fhall  not  alter  the  Law,  Statures,  or  Cuftoms  of  the  Realm,  or 
impeach  any  in  his  Inheritance,  Goods,  Body,  Life  8cc.  _  But  if  one  be  indicled  for  a  Contempt  againft 
a  Proclamation,   he  fhall  be  fined  and  imprifoned,  and  fo  impeached  in  his  Body  and  Goods.  12  Rep.  75. 

in  the  Cafe  of  Proclamations,  cites  Fortefcue  de   Laudibus   &c.  cap.  9.  18.  ^4.  56.  &c. But  a 

Thing  which  is  punifhable  by  Law,  by  Fine  and  Imprifonment,  if  the  King  prohibits  it  by  his 
Proclamation  before  that  he  will  punifli  it,  and  i'o  to  warH  his  SuhjeHs  of  the  Peril  of  it ;  there,  if  he 
permits  it  after,  this  is  a  Ci.-i.umftance  which  aggravates  the  Offence.  But  he  cannot  by  Proclamation 
make  a  Thing  unlawful  which  v  as  permitted  by  the  Law  bcforcj  and  this  is  well  proved  by  the  an- 
cient and  continual  Forms  of  Indictments,  which  all  conclude  Contra  Lege.m  &  Confaetudinem  An- 
glic, or  Contra  Leges  &  Statuta  &c.  But  vo  Iniliament  Vfas  ever  feen  to  conclLide  L'ji.ti-.i  Py.e^J.:m  Pro^ 
clamatiowm.     1 2  Rep.  7  5.  Mich.  S  Jac.  in  the  Cafe  of  Proclamations. 

11.  A  Proclamation  prohibiting  Importation  of  Wines  from  France  upon 
Pain  of  Forfeiture  is  againlt  Law,  it  not  appearing  that  there  v\  as  any  V\^ar 
between  the  Realms.  2  Inli,  63.  cites  Palch.  i  Eliz.  in  the  Exchequer. 
German  CioU's  Cale. 

12.  Proclamations  are  fo  far  jitjfj  as  they  are  made  Pro  Bono  PuhJico. 
Hob.  251.  in  Armlfed's  Cafe. 

13.  A 


Prerogative  of  the  King.  199 


13.  A  Proclamation  binds  not^  tinlefs  it  be  under  ths  Great  Seal.    Cro.  ~  RtO'.  R. 
C.  I  So.  Hill.  5  Car.  B.  R.  Keyly  v.  Mannino-.  i:z  Howard 


(S.  d.  2)     Proclamation.     By  qjuhcm  made,  ami  hovj 

pleaded. 

I.  TXTHERE  Paripioncrs  make  By-Laws  that  every  one  pall  pny  a  Sam  Br.  Cuftom, 

y  Y   for  Reparation  of  t bar  Churchy  and  jor  Dejan/t  oi:  ^-dynx^iit  to  di-  !'^-^-  ^"'^'' 
jlrain  ly  Ji£c>it  Sic.  there  thole  who  are  ablent,  it  Proclamation  be  made  ^"^  ]\'j','ccin 
to  do  it^  Ihall  be  bound  as  well  as  thole  who  are  prelent  ^  Per  Kirton  j  make  Pro- 
quod  non  negatur.     And  lb  lee  that  a  common  Perfon  may  make  Pro-  clam;uion 
clamation.     Br.  Proclamation,  pi.  i.  cites  44  E.  ?.   18.  hut  by  Ji<- 

'  ^  TT  J  ^  ^  //joivj'v  oj  the 
Ki?!(^  or  M.tyors  &c.  ix-ho  hixte  Privilege  in  Cities  and  Bcrcuffhs  to  do  ir,  or  have  ufcd  it  ly  Cuftcm  ;'and  Sir 
Edmond  Kniglitly  Executor  of  Sir  VViliiain  Spencer  made  l-'roclamation  in  ccrtaiii  Market  Vill5,  that 
the  Crcditor.s  fl'ould  coire  by  a  cert.iin  Day,  and  chum  and  prove  their  Debts  &c  due  by  the  Telhitor  ; 
and  becaulc  he  did  it  without  .-\u;hority,  lie  •was  ccnwiiitid  to  lie  FiCft,  mid  put  to  a  Fir.e.  Br.  Procla- 
mation, pi    10.  ci;es  iz  H.  S. Ibid.  pi.  i.  cites  S.  C.   But  BrooI<e  faysiw  Loj-v/o;;  they  ufc  to  nuke 

Proclamation  /;/  tke  N.iwe  of  the  Mayor  ;  and  adds  a  C^arre  if  it  be  by  Cullom  or  not.. Went.  Off. 

of  Executors  160.  cites  S.  C 

2.  The  Court  upon  the  firll  Motion  were  all  of  Opinion,  That  where  Objeftion 
a  Proclamation  is  pleaded,  it  w////  l>e  pJeadc.l  to  have  been  under  the  (rreat  was  made  to 
Sea/  ;  lor  it  doth  not  bind  unlels  it  be  under  the  Great  Seal :  and  if 'tis  '^' „  p'^^'^S 
denied,  there  can  be  no  IJue  upon  it,  but  only  A'til  tiel  Record,  which  ^j^^    that  it 
cannot  be  unlcfs  he  pleads  it  to  be  8ub  Magno  Sigillo.     But  afterwards  was  rot  laid 
it  being  again  moved,   lones  and  Windham  Icemed  to  doubt  thereof;  be-  to  be  under 
caufe  when  it  is  pleaded.  That  fuch  Proclamation  was  made,  it  lliall  be  l  ^     '^"'n 
intended  duly  made;  as  in  Reicous,  if  it  be  returned  Quod  lecit  ^Var- p'J.p(!]g^,'^_ 
rantum,  altho'  it  be  not  pleaded  to  be  in  Writing,  vet  it  ihail  be  intend-  tions  are  or 
ed.     But  it  was  anlwered.  That  true  it  is  when  it  is  but  by  W'ay  of  In-  oiight  to  be, 
ducement  ;  but  otherwile  when  it  is  the  Subltance  of  the  Plea.    Where-  ^'""l'  ^^^f''^ 
upon   it  was  adjourned.     Cro.  C.  180.  Hill.  5  Car.  B.  R.  Key  ley  v.  i.'i;f  cop'o-' 
Manning.  claim,  tiicm  -, 

but  it  (eeras 
as  if  the  Court  gave  no  Regard  thereto.    See  2  Roll  Rep.  1 72.  Trin.  iS  Jac.  B.  R.  Hov/ard  v.  Slater. 


*  (U.  d.)     King.     [G^urrd'hw.']  ITr^^ir^T^ 

in  Roil. 

c.  TN  the  Abfcnce  of  E.  i  {jtgi  QDrotf)cr  CBmunD  luas  mntic  (dmt- 
Dtan  of  tijc  Ucalni*  (iSota  tlic  ii^iimc of  e'twrBiau)  is  €.  15.  b* 
2.  Lccncll  tijc  fccouo  ^an  oi £. 3.  Uiajj Cuaos EciTUU  ^id- 59. 


(X.  d.)   King.     Guardian  of  the   Realm.     The  Poz^^er  of 
the  Guardian  in  the  Abfence  oi  the  Kino;. 

See  this  Roll 

I.  I  e.  2.  Rot.  pat  ?9art  2.  99-  2s.  Rer  concefiTt  pctra  em^ '[  ^'Y''' 

RpnCllftOtli  KCljm  fC.  pOteftateni  ad  concedendum  Licentiam  cligen-  ^^^^,JxTy' 
di  Paltores  in  Ecclelias  Cathcdrales  &  Cnnventuales  &  adhibendum  Al-  BradyNCon- 
fenfum  Electionibus  Nomine  Noltro  &  Fidclitar.  capicnd.  &  Tempora-  tinuation  of 
lia  reiUtuend.  &  Benefic.  &c.  conlerend.  ^c  Ordinand.  dc  Cullodiis  &  the  Hiftory 

Mot  Jin"iafa. 
aruagus.  „.,,  5.  vo 

2.   W'.}i  49- 


'200  Pixrogative  of  the  King. 


2.  cijc  c?iiai-tiian  pf  tljc  Rcnim,  in  tlje  abfcnce  of  ti;£  ainsx,  rua« 

pieieiu  to  the  Arlvowlon  in  Right  ofthc  Kino-      18(73   .    15   t) 

Fee  fomc        ?.  i©i3cn  tOcrc  itj  a  (aiiarnian  of  tfje  Realm  in  tijf  ^ibaucc  of  tk 

P.cccdcnts     t^iiin;,  tl)C  W  rits  Oi-.ginal  Ihull  be  in  the  Name  of  the  King      21  e 
Writs  at  the  ^"    -^ 

Heginmn- of     4-.^]^"'-  tl)e  Telle  lluiU  not  be  '2bC(fC  Meipfo,  but  CcffC  L.   filio  nollro 
the  above      cliarinimo  Cullode  Anglis.     21  (Jl;   3    59 

HcrdL^  £■  r'^  f  ■  '•  -^^^^  ^^^  C^CniUV?,.  4"   Tefte  Ednunulo  Comite  Cor- 

^.P^'-^--     nub.  Conlanguino  Regis   apud  V\'citm.    (CfjIJS  eOmitHD  tll^lS  CUllOiS 


(Y.  d)    King.   //"A//  Things/W/^o  f;j  Succcjfmi,  and  not 

to  his  Executor. 


In  Quare 
IiTipedit  it 


appears  that  Chalik!  mnj  Aefcend  to  the  King  ;  for  where  the  Kin?  has  the  -^  'f.-rr.^-r.U:     r     j>n 

hu.t  iktm.  1  »  '•    B..  UuOj,.u,c,  pi.  S,.  u.«  44  L.  ;    4;.  ™j  ,;„  Es.cuto,,  (hall  nai 

i'dSV'  l»  tt,^  aiffl  not  Ijis  €Mcutor.    ,  t^/*  4=  r.f  ioTeK 


S.  P.  Br, 


P|xrosative.  pi.  St.  cites  ;  H.  4.  41.    Per  Gafcol.ne  fbr  Law  ;  for  it  U  a  Ch.tul  Re.l  annexe,  to  tJ. 


.    3.  CfjE  Treafure  and  other  valuable  Chattels    j^r?  ill  itrrcrTf imi  ■^n'n 

p  -4,  ^^^r.  ^'"°  ^^"  '^^^'<^  nothing  in  his  natural  Capacirv  unlefs  in 
^&  f  'I  ^"'m>''  °^^".E1^^"<^  Tail  by  the  Statute  dI  Don"  and 
PaSaLt      P?"h  r\^'  '"  the  Queen,  if  not  kept  feparate  by  Aaof 


(Y.  d.  z)  DefccM  of  Lands,     How. 

Jf theScSs  T  ^,  "^^  ^i"^^'^'  ^-ff"'  ^/^«  '^^'^  ^  i)^//^.&/.r  /y-  0;;.  r.../.r  W  a  Son  N 
isjibecanfe  A  h' fojher  Ytnt^r  arid  ftirchafes  Lwd  and dtes,  and  the  ././.// .iUv  <v/- 
theOuality   ^"'^  and  dm  ivahoutWie,  the  Daughter  Ihail  not  inherit  thefe  Lands  nor 

S'L^t  at"th?nf-7vh'^^-"'^   of  the  Crown,    but   the  younger  Erother 

thefe, and  ^r'f  ^^^/  "^f  ^ '  \^herein  note,  that  neither  Poireffio  Fratris  doth  hoi d 

r.any'other  ^^  ^^nds  of  the  Polfeliions  of  the  Crown,  nor  Half  Blood  is  no  IniDedi 

like  Cafes  ment  to  the  Delcent  of  the  Landsof  the  Crown.     Co.  Litt   iTb 

f  Im  fo?s"  T  .nH  .T  ''''V'.  ^"l^^y  '^''  ^''''"'  °f  '^'  P'->'^  (^ his  Mother  p:irch,r.s 
th:"Lnds"    f^e"d,ot£'H''^^f^^T''-"^^u^'"^^'^^^^^^^^  Land    li  1]   de- 

and  Poffef-     ^^^  Jx  '      r  ^"^  °^  '^?  ^^'^  °^  '^^  ^\or.h^x,  but  in  the  Cafe  of  a  Subject 
fions  ^vhere-  ^he  Hcir  ol  the  Part  ot  the  Father  ihall  havethen,.     Co.  Lice   15  b 

i.The 


Prerogative  of  the  King.  201 

3.  The.  eldeji  Daughter  and  Sijlcr  of  a  King  lluill  inherit  all  his  Ftf  of  the  King 
.Simple  Lands.     Co.  Litt.  15.  b.  ''w  Com 

4.  liiUn  Ki>igpurchafcs  Lands  o'i^ihQ  Cn?iomo^  Gavelkind.,  and   dies.,  nx'fhaluh- 
having  I/fue  divers  Sous^  the  eldcll  Son  lliall  only  inhcric  thcfe  Lands.  Secundum 

Co.  Lite.  15.  b.  jusCoi-onjB 

atte  nd 
upon  and   follow   the  Crown,    and  tlierefore   to   whomfoever   the  Crown  dcfcends  tho!c    Lands   and 
Polk-^Tions  delcend  alfo ;  For  the  Crown  and   the  Land,  wlicrcof  the  King  is  icifcJ  in  Jure  Coronas 
are  C^oncomitantia.  Co.  Litt.  1  5  b. 

5.  The  King  has  two  Capacities  ;  for  he  has  two  Bodies,  of  which 
the  one  is  a  Body  Natural,  conlilting  of  natural  Members,  as  every 
other  Man  is,  the  other  is  a  Body  Politick,  and  his  Members  thereot 
are  his  Subjects.  He  may  take  in  his  Body  Natural,  Lands  or  Tene- 
ments, as  Heir  to  any  of  his  Anceltors,  and  alfo  in  this  Capacity  may 
piircbii'7  to  him  and  his  Heirs,  and  his  Heirs  Hull  retain  it  notwithfhmd- 
iii^  thai  he  is  removed  Irom  the  Royal  Ellate.  And  he  may  alfo  take  or 
pur. hale  Lands  or  Tenements  in  Fee  in  his  Body  Politick,  that  is  to  fav 
to  him  aud  tohis  HeirsKings  of  England,  or  to  him  and  to  his  Succellbrs 
Kings  of  England  j  And  ib  his  double  Capacity  remains,  as  it  does  in 
other  Perlbns,  who  have  a  double  Capacity,  As  Bilhop  or  Dean i  And 

to  prove  that'the  Ellate  Royal  does  not  *  confound  the  other  Capacity  *S.  P.  Pep 
the  Cafe  in  45  Ail'  6.  was  cited,  where  it  appears  that  King  H.  3.  gave  J^'^'a'^'w  J. 
a  Manor  to  the  Earl  of  Curnvval  in  Tail,  faving  the  Re\erlion  to  him,  •  gS?'***' 
and  died  ^  the  Earl  ga\e  the  Manor  to  another  in  Fee  by  Deed  witli 
Claufe  of  Warranty  in  Exchange  for  another  iManor,  and  after  the  Earl 
died  without  lifue  having  Alfets,  and  the  Warranty  and  Alletsdcfccnded 
upon  £.  I.  being  Heir  to  the  Earl  i  And  there  it  was  adjudged.  That 
the  King,  by  this  Warranty  with  Alfets,  was  barred,  by  which  the 
Alfignee  oi  the  Alienee  had  Rellitution  of  the  Manor  out  of  the  Hands 
of  King  E.  3.  who  had  feifed  the  Manor  into  his  Hands  for  the  Reafon 
aforefaid.  NVhich  Cafe  pro\es  that  the  Capacity,  ^\hich  the  King  has  in 
his  natural  Body,  remains  aftet  he  is  King,  or  otherwife  the  Warranty 
could  not  have  defcended  upon  him,  nor  theAffetsto  him  as  Heir  to  the 
Earl  his  Anceiiori  and  lb  by  the  \\  arranty  and  Alfets  which  defcended 
upon  the  Body  Natural  of  the  King,  he  was  barred  of  the  Reverlion, 
which  he  demanded  in  his  Body  Politick  i  For  it  was  Parcel  of  the  Pol- 
leifions  of  the  Crown  for  anything  which  appears  ;  And  as  his  Capacity 
remains  to  take  by  Defcent  as  Heir,  fo  it  remains  to  purchafe  therein, 
Arg.  PLC.  234.  3  Eliz.  in  theCafeof  W'illion  v.  Lord  Barkley. 

6.  The  King  may  take  in  his  Body  Politick,  as  King,  to  him  and  his 
Heirs,  or  as  King  to  him  and  his  Succellbrs;  For  he  may  have  Heirs  in 
his  Body  Politick,  and  he  may  have  Succellors  in  his  Body  Politick  ; 
And  therelore  aGift  to  him  his  Heirs  and  SucciJJors  is  good  to  the  Body 
Politick  in  both  the  Limitations;  For//'  the  Heirs  fail^  ttjhall  go  to  the 
SiicctlJors  ;  And  his  Heirs,  as  Heirs  to  the  King,  may  take  in  their  Bodies 
Politick.  Per  \V  elton.  J.  PLC.  242.  b.  in  theCafeof  W  illion  v.  Lord 
Barkley. 


(Z.  d)   ^kmc;.     In  what  Cafe  by  the  A j;//t?  of  King;,  his  ^^  ,'^«™i'i- 

r  /r  /L    II    1  7         7     1  -^  ^  dcT  limited 

CiUCceUors  liiall  hQ  com pr wended.  toKirs^H.;. 

-^  -^  by  the  Nr.ms 

{i:]\rj-'l)e%\imm^pn\.l).  s.  are  luitfjmtljc, statute 27  h.  s.  L^dnSnl 

X     cap.    24.  of  Refumption  of  the  Liberty  of  Purveyance  tOedtohimby 

ija^e  "Benefit  of  tljc  @)tatutc,  t'mvM  tl]tv  arc  not  mnm  -,  jfor  tOcp  *''"^ii  >^ '"i- 
arc  mclutien  tuitljin  tijc  general  JDorD  iMm  'STr,  ss-  €115.  R.  *"■•  f'^'-- ^^'"s 

:t  Lord  Darcie's  cafc  aii)iiDo;cri.  :;;;;';;'';>,^ 

i-  e  e  2.  Patents  fiju'caiu-o!: 


202  Prerogative  of  the  King. 

purclinfc  by  otiier  Name  than  by  Name  of  King  ;  For  the  Name  of  King  has  merged  his  Surname,  and 
ill  the  N/imL'  of  Kiiir,  hh  Siii-naiiie  ^nd  fr^fer  N/ime  alj'o  nre  hicluded.  Per  Brown  J.  Pi.  C.  244.  b  Trin. 
4  Eli?.,  in  the  C.ifj  of  Willion  v.  Lord  Barkley. 

Lord  Coke,  in  his  Commentaries  upon  Maj;na  Charta,  cap.  i.  fays,  That  atthat  Time  Hiredcs  were 

taketi  for  Siufejj'cres,  and  SucceJJ'ores for  Hxredes.  z  Inft.   5. S.  P.  Ibid.  7.  that  antiently  Su-'celTbrES 

and  Hseredeswere  Synonima. |  There  is  no  Number  to  this  Plea  in  Roll.- —  :|:  Cro.  E.  512.  S.  C. 

2.  Patents,  withoutthe  Words  (Pro  nobis,  Haeredibus,  &  Succeflbri- 
bus  noltris)  and  being  granted  for  a  Corporal  Exercife  ol  the  Office  or  Ser- 
vice are  good.  Cited  per  Saunders  Ch.  baron.  PI.  C.  459.  a.   as  Relblved 
by  all  the  Jultices.   28  April   i  Mar. 
^-     Jj.j  3.  The  N\  ords (/"dT  ;;(5j}  in  the  King's  Grant  <7/Yy/)o^f/V  by  him ////^/j 

^Miir  in  Body  Politick^  and  contain  Heirs  and  Succellbrs,  without  precile  Men- 
theCafeof  tion.  Per  Saunders  Ch.  B.  PI.  C.  458.  a.  Pafch.  i6.Eliz.  in  Sir  Thomas' 
Hill  V.         Wroth's  Cafe. 

Grange.  ^    King  H.  6.  Anno  20.  of  his  Reign,  granted  for  himfelf,  and  did' 

not  fay  (tor  his  Succellbrs)  tothe  College  of  All  Souls  in  Oxford,  for  the7n, 
their  i'enants^    and  Fanners,   to  be  dijcbarged  of  'toll ;    It  was  agreed  per 
Cur.  That  this  Grant  to  be  difcharged  was  good  againft  his  Succellbrs, 
though  not  named,    as   well   as  in  Cafe   of  the  Grant   of  an  Interell, 
which  in  Plowd.  Com.  in  Sir  Thomas  Wroth's  Cafe,  was  agreed  to  be 
good.  Yelv.  13.  Mich.  ^4&  45.     Eliz.  B.  R.  Wood  v.  Hamftead. 
♦All  the  Ba-      ^    A  Grant  by  the  King,  without  the  Words  (Pro  fe  &  Heredibus)  or 
f'"^'"''^^     (Succellbribus)  of  an  *  Annuity^  or  Rent,  Payable  at  the  Fxeheqiier,  or  by' 
■wereo't"o-   the  Hands  of  any  Receiver,  binds  the  Succeflbr.     Jenk.  C09.  pi.  41. 

pinion,  that 

Inch  a  Grant  of  an  Annuity  Should  bind  the  Heirs  and  Succeflbrs  of  the  King,  notwithftanding  the  O- 
milTion,  inafmuch  as  the  Body  Politick  of  the  King  is  charged,  which  is  •perpetual,  and  never  dies.  PI.  C.. 
457  a.  Trin.  i  5  Eliz.  Sir  2Pl)Dmo0  CilrOtlj's  Cafe.  —  S.  P.  PI.  C.  176.  Mich.  4  Mar  iii  the  Cafe  of 
Hill  V.  Grange. 

A  Gift  to  the  King  pafles  the  Inheritance  without  the  Word  Succef- 
for.     l^sooiaGiftrnxdnbytbeKuig.     Jenk.  209.  pi.  41. 
A  Gift  to  >y    A  Deed  made  to  the  King  by  the  Words  {Carolo  Rcgi)  or  {Rcgi  An- 

the  King  of   ff/,-^)pa(fes  the  Inheritance  to  the  Crown  without  the  Word  (Succellbrs ") 

any  Kcr.di-   °i      ^  ■        \  ^  "^ 

tamentisa      Jenk.   124.  m  pi.  50. 

Fee  tiimple, 

as  a  Gift  to  a  Mayorand  Commonalty,  without  mentioning  Succeflors.    By  all  the  Judges  of  England. 

Jenk.  224  pi.  S4. S.  P.  Jenk.  271.  pi.  89. 

Dyer  Ch.  J.  faid,  That  the  adding  of  Siiccejfors  in  Grants  to  the  King,  is  but  of  late  7'ime,  and  aMew 
Device.    PI.  C.  250.   Trin.  4  Eliz.  in  the  Cafe  of  Willion  v.  Lord  Barkley. 


tlal^rlT  (^-  e)  *  Council  Privy  of  the  King. 

amoftNoble, 

Honourable,  I-  t  '"T'il-  16.(1?.  2*  UDt  3a*  HOt*  42.  Baron  de  Bellomonte  was  com- 
andileve-  J^     mitted  to  Prifon  lor  refuting  to  counlel  the  King,  tOUCljIttg 

r"ti^'"f  ii  Crucc  propofcD  btmtm  t!)c  Hm  nnti  tije  ^cot0,  tlje  tiiiii  osacaa 
th^Kmg     bcinn;  of  t|)c  0xi))^  Council  of  tijc  l^mn;. 

and   his 

Privy  Council  in  the  King's  Court  or  Palace  ;  With  this  Council  the  King  himfelf  doth  fit  at  his  Plea  - 
fure  ;  Thele  Councellors  confult  of,  and  tor  the  publick  Good,  and  the  Honour,  Defence,  Saf^-ty,  and 
Profit  of  the  Realm  ;  It  is  called  the  Council  Table,  a  Confulejido,  Secundum  Excellentiam.  They  are 
called  G)ji«7;«w  Ret!is  Privatum,  Concilium  Secretuni,  and  Cotitirnium  Concilium  Regis.  The  J^umber  of 
rhtm  IS  at  the  Kin(i' s  IVtIl,  hm  of  antient  Time  theywere  12,  or  thereabouts.  4  Inft.  53.  cap.  2. 

I  My  Lord  Coke  lays.  That  the  Duty  of  a  Privy-Councellor  appears  by  his  Oath,  which  conflfteth  of 
thefe  Articles  or  Parts  1.  That  he  fliall,  as  far  forth  as  Cunning  and  Difcretion  fu.fereth,  truly,  juftly, 
and  evenly  counfel  and  advife  the  King  in  all  Matters  to  be  communed,  treated,  and  demeaned  in  the 
King's  Council,  or  by  him  as  the  King's  Counfellor.  2.  Generally,  in  all  Things  that  may  be  to  the 
King's  Honour  and  .Behoof,  and  tothe  Good  of  his  Realms,  Lordfliips,  and  Subjects,  without  Partiality, 
or  Exception  of  Perfons,  F-ot  leaving,  or  efchewing  it  to  do  for  Aftccfion,  Love,  Meed,  Doubt,  or 
DreadofanyPerfon  or  Perfons.  5.  Tiiat  he  fhall  keep  fecret  the  King's  Council,  and  all  that  fhall  be 
communed  by  way  of  Council  in  the  fame,  without  that  that  he  fhall  commune  it,  publifh  it,  ordifcover 
it  by  Word,  Writing,  or  in  any  otherwifc  to  any  Pcr'bnout  of  the  fiaie  Council,  or  to  any  of  the  lame 
Council,  if  it  touch  him,  or  if  lie  be  Parry  thereof.   4.  That  he  lliall  not  for  Gif:,  Me;d,  nor  Good,  nor 

Pro.Tii'e 


Prerogative  of  the  King.  203 


Promife  of  Good  by  him,  nor  by  mean  of  any  other  Pcrfon,  receive  "i-  admit  from  my  Promorion,  [or] 
favouring,  nor  for  declaring,  letting,  or  hindrin^;  of  any  Matter  or  Tliinf^  to  be  treated  or  done  in  tho 
laid  Council.  5.  That  hefiudi,  with  all  his  Might  and  Power,  help  and  Ihcngthcn  the  King's  laid 
Council,  in  all  that  ihall  be  tiiought  to  the  fiime  Council  for  the  univcrfal  Good  of  the  Kiiig  and 
his  Land,  avd  for  the  Peace,  Kelt  and  Traicuility  of  the  lame.  6.  That  he  fhall  withftimd 
any  Perfon  or  Perfbns,  of  what  Condition,  Eflatc,  or  Degree  thev  be  of,  that  would  by  way  of  Feat, 
attempt  or  intend  the  contrary.  7.  And  generally,  dvAl  he  ilialloblervc,  keep,  and  do  all  tltat  a  good  and 
true  Councellor  ought  to  do  unto  his  fovcreign  Lord.  By  the  Force  of  this  Oarh,  and  the  C/iillum  of 
the  Fcalm,  he  isa  Privy  Councellor,  v.ithout  an)  Patent  or  Grant,  during  the  Life  of  the  King  that 
makcth  choice  of  hiin.  4lnft.  54.  cap.  z. 

2»  EotparL  21  e.  3.  M*  28.  Cijc  Commons  prav,  tljat  no  P/y^'-^^'^- 
Idto^lc  troiu  Dciiccfftrti)  bj)  ©iiffffcaion,  at  connneraticii'of  odiv  ac=  ^o'^'.  Abr 

CllfCrgi  UalUutarp  be  COiUinanQell  by \V  lit  to  come  10  the  Council  ul  the  ^l  1^  £ /j. 
Kinii,and  then  be  conltrained  and  compeJled  to  make  Fine,  or  p^P  DOlUU  il  N".  iS. 

ore»it  ®uui  of  $i3oncp,  or  otijccuitfcto  tranel  oUcr  tl)t  Sea  no'  ttioxt 
tWj  €mt  !ja5  been  in  iarcnlenient  of  au  tljc  people,  pvap  tijat  fuel) 
^iircfi'cg  iJiO  ©rieijaaccs  from  ijenccforti)  be  not  tionr;.  Jf/fwcr.  jt 
plerucs  our  lorn  tljeMiffj  tljat  Ijeiiieiortl)  iliclj  Cijmu^  be  not  none 
againif  Kcafou. 

3-  jRCtPtirl  2  2  C.  3-  .O.  4-     Fifteenths  granted  upon  tlfljerB  Con- 
ditions to  be  entrcD  m  EOU0  of  i;5nrlfanjeut,  falicet,  amonn;  otljec^, 

I'hat  no  Impolition,  TalLige,  nor  Charge  by  way  of  Loan,  nor  other 
whatfoever  iManner  be  laid  by  the  Privy-Council  of  the  King,  without 
their  Grant  and  AlFent  in  Parliament. 

4.  Eot.  pari.  2.  part  M.  16.  Cfje  Commons*  pray,  tbat  tlje  *  ^'^'?;,« 
*LoAiiS  luij'icl)  art  sranten  to  tljc  l^mg  Up  isnjcrs  15erfans  cftije  Coiu=  cAppreits) 
mo»3  be  rcieracn,  nun  tljat  none  from  beacefort?)  be  cauipdicD  to  ^ 
matie  fuel)  loans  or  Contributiouss  agauul  tijetr  l^ilijs,  for  it  if?  eon-  h  f 


i^ot.  pari  25  e.  3-  I-  part  JS.  16.    Cbe  Commons  prap,  Prynne-s 

tljat  UO  v^'Sn  be  put  to  anfwer  ot'  his  Fianktcnement,  nor  oi'anv  1  hiiig  Cott    F.e- 
whith  touches  Lite  and  Member,  Fines  and  Redemptions,  by  Appofals  '^'^  ,  'g  1' 

before  tlje  Counrti  of  tbe  l^mn;,  nor  before  bis  09inifter^  Mjat^N^  16.  '' 
focijcr,  unief^  bp  proccfs  of  tm  tijercof  *  {jeretofore  isfcn.  ^^-uPxcn    *  orig  ;s 
it  pleafetb  t\}Z  t^inn;,  tbat  tbe  Mm  be  fecpt,  ann  tijat  none  be  bonnB  cc"  '-^le'-^ ) 
to  anfujcr  of  fjis  jfranutenement,  unlcfs  bi)  procefg  of  Laiu ;  bt-t  of 
'2:()inn;s  toiiicb  toucljegi  life  or  Ci9eniber,  Contempts  or  eSfcefd,  be  it 
Iscne  as  Ijn^  been  iifeti  bcretofore* 

6.  nabercas  5iDcrfe  are  accureu,  anti  arc  inatic  to  eomc  beforct  be  )';•}•«"«'•= 
Council  of  t!je  fi\m  bp  !©rit  ct  otijer  contmnntmicnt  of  tbe^,^^.  ^tr 
iMm,  upon  *  irrieuous  pam  aiTainft  tlje  tm,  tbe  Caiiimons  ,^<s  4->r  j, 
pra;',  tbat  from  bcnceforti)  if  anp  accu£r  propofcs  anp  ftiatter  tHr  >;o  12. 
tbt "profit  of  tbel^inii;,  tbat  tbis^jatter  be  fent  to  tm  iutiirej  of*  "''?.  " 
tbe  one  130103  or  tbe btber,  or  of  CitT.  tijereof  to  encjinrc  m\i3  Dcter=^^'''^^'' 
minearccroing  to  ti)e  latu;  anH  if  it  toucije^  tije  arculer  or  tpartp,  t  orig.  is 
iet  bim  fuc  at  tbe  Common  laiD  i  ants  tbat  no  99an  be  put  to  An-  (Parte  citefa 

fwer  without  Preiencment  bclbre  Jultices,  or  Thing  ot  Record,  or  by  ^"''^■) 
due  Prccels  and  Writ  original,  according  to  the  ancient   Law  of  the 

Land;  Sn^tf  anpCbutn; from bencefjitb be  none  to  tiie  ccntrarp, 
be  ittJOiD  «n  laiy,  ann  licin  for  error*  anfraer;  l^ecaufe  tbi«5  ar= 
title  i0  an  larticie  of  tbc  ©reat  Cbartcr,  tbe  Eins  luiiietb  it»  Ect* 
pari  42C*3*  Ji5»  12. 

7.  I  D»4.  n*  160.  'CbC  Commons  prap,  tbat  no  Action  perfonal  be-  Prvnne's 
tA\  een  Party  and  Party  be  held  by  Privy  Seal  bclbre  the  Council  of  the  Cott.  lie- 
King;  ann'tbcp  in  tbe  petition  fljeto,  tbat  in  tbeCimc  of  s.  2.  it  mas  :"'^''  ;'^^\ 
To  aone  for  asrocatxe  matie  to  fome  of  tbc  council*  anfroer ;  li^e  tbe  >i^^> ' i^,  ,\ ^' 
€'tatutc,tbtreormutse,  belt!  ann  i>tpt  tberc,  uniere  tbe  one  parti'  is  s.p.  Bur^". 
fo  rxreat  ajin  ricb,  ann  t!jc  otbcr  poor,  tbat  i;c  cannot  ofbeninfe  l/alic  '6=  '^  about 
to  tctoticr*  ^;^l'^'  ''^ 

8.  2^.^'""- 


204-  Prerogative  of  the  King. 

rrynrx-s  g.  2  ix  4-  B.  69.  Cljc  Coiunious  pvap,  tijat  all  Wms  or  jlct= 
CO  d  ib  ^"^"^s  of  'pri\)v  BCiU  of  our  LorB  t(jc  Uinij  Dircflco  to  Btuccfc  lieges 
410 '  ■-  h'  4  of  tfjc  l^utff  to  appear  before  our  lorB  ttie  t^lna;  in  Ijis  Couucil,  or 
Ko.  69.  i»  O'ss  COaitcerp,  or  ecdjequer,  upon  certain  j5am  tonipri^cB  tljercin, 
De  iBr  c^cr  l)crcafcer  ouftco,  anu  tljat  el!crpl!cn;c  of  toe  i-.uuT  be 
*  This  in  treatcii  accorBino;  to  tljc  rialjtful  Laius  of  tije  tmh  anciently  ufeO* 
cZt'Tcc  ^"f'^'^t ;  iLet  not  fucbjBrit  be  maBe  unlefs  in  Cafe  lu'jere it  feemsj 
Abr  418  'is  ncccffarp,  anB  t!)is  bv  iDifcrctton  of  tl)c  Cljancellor  or  Council  of  tlje 
■^  .iirteient    Uinij  tor  tijc  Cuiic  beuiff*   5DIBC  Suntle  ^  4  Ip.  4.   M*  28. 

Pii-^t-  9.  Mr.  Prynne,  in  his  Animadverlions  &c.  on  4  loll.  pag.  45.  cap.  2. 

refers  the  Reader  I'or  the  aneicnt  JiirifdUiion  and  Proceeding  of  the  King's . 
Council  to  Mr.  William  Lanibard's  Archaion.  108  to  1 16.     Mr.  Cromp-  ' 
ton's  Jurifdiclion  ot  Courts^  fol.  29  &c.  The  feveral  Bundles  of  Petiti- 
ons to  the  King  and  his  Council  in  the  Tower  of  London,  and  the  An- 
fwers  to  them  i  Placita  Parlianientaria  coram  Rege  &:  Concilio  in  the; 
Tallv-Office  in  the  Exchequer,  and  in  the  Parchment  Book  of  them  in 
the  Tower  under  King  Edward  I.   The  firlt  Part  of  my  Brief  Rcgilter 
and  Survey  of  Parliamentary  Writs  p.  05   to  394.     In  what  Cafes  and  ' 
Things  their  Jurifdiction  and  Proceedings  have  been  reitrain'd  and  taken 
f.-xay  lince  thefe  Inltitutes  were  compiled  by  a  fpecial  Aft  made  in  the 
Parliament  of  17  Car.  i.  cap.  10.  Intituled,  An  Aft  ibr  Regulating  the ' 
Privy  Council,  and  taking  away  the  Star-Chaml)er  Court,  the  Aft  it- 
felf  will  bell  inform  you. 

10.  6  Afin.  cap.  6.  S.  i.  Enafts  that  the  G^uc?n  fl:'aU  have  hut  one  Pri-j 
Cotirjcil  for  the  Kingdom  of  Great-Britain^  and  fiich  Privy  Council  Jhall  have 
the  fame  Powers  as  the  Privy  Council  of  England  had  at  the  Time  of  the  Union  y 
and  none  other. 

11.  6  jinn.  cap.'].  S.  S.  Enacts  tha.t  the  Privy  Council  Jor  the  Kingdom  of 
Great  Britain  pall  not  be  difjolved  by  the  Death  of  her  MajeJ^y^  her  Heirs  or 
Sr/ccejors,  but  pall  continue  fix  Months,  unlcfs  fooner  determined  by  the 
Succeffor. 


(B.  e.)     Qiieen,     [Coy/fort  of  the  King.'] 

1*  nn  Ip  €  ClltCen,  JfemC  of  tije  lainn;,  may  inform  by  her  Attorney 

X     t^eneral  in   the  Chancery  by  Englilh  Bill,  to  have  a   Decree 

made  in  the  Court  of  the  Qiieen  conhrmed .     Jf  Ot  tljO'  OjC  bC  S  @)Ub)eft 

pet  flje  Ijatlj  fuclj  ii)rerogatii3c  of  tlje  iMm  as  tljat  fljc  is  ijis  jfeuie.  9^. 
1 6.  ja,  in  Cljanccrp*  %vc  Robert  Fhyde''^  Cafe,  vulcB  upon  a  De^ 
niurrer* 

2.  2  e,'  I.  KOt.  ClaUfO  95cmb,  is-  Conventio  inter  Reginam, 
ifenie  of  tljel^ingjaad  a  common  Perfon  for  the  en  joying  of  certain  Land 
for  Years,  ailB  tlje  Queen  iecic  Attornatum,  ailB  tl}e  OtljCr  appOintCB 

tobeinpropcrl^erfom 

3-  1 1  (£♦  i>  3R0t«  l©a»i^T  Cpemb*  i.  The  King  gave  a  Manor  to  the 
(^uecn  ijiS  Jfeuie,  and  her  Heirs  for  ever,  adco  integre  &  plene,  as  J.  S. 

held  it.   ©tljer  fuclj  vStaiit.   a3enib.  3. 
King E. 4-      4.  2  c*  I.  3Rot.  ?©alli3E  95nnb»  2.    djc  IMm  ijrantcB  to  tiic 

TTJ'Tlu  ^"^^5^  1)IS  Jfeuie  fuclj  Land  ad  vitam  fuam^  ita  tamen  quod  Maneria  &c. 
<^imn  his      ^  Corona  AnglisE  non  feparentur. 

reme  for 

"term  of  her  Life,  and  J?;e  le*s\iit  for  Tears;  And  foit  feem?  that  flje  has  a  Capacity  to  take  of  the  Grant  of 

the  King,  and  fhe  may  leafe  alone  without  the  King  ;  And   fo  fee  fh;  is  a  Perfon  exempt.     Br.Xon- 

abilitic.  pi.  6l.  cites  7  H.  7.   -, . It  was  adjude'd,  that  where  H.  8.  granted  a  Manor  to  the  Qiieen 

hi.s  Feme  for  Life  ;  there  the  Queen  was  a  fole  Perfon  exempt  by  the  Common  Law,  and  ma\  make 
Leafe  or  Grant  without  the  Ki}ie,  and  fo  may  plead  and  be  impleaded  alone.  4  Rep.  23.  b.  Trin.  26  Elii. 
in  the  Cafe  of  Clark  v.  PenniKuher. 

5.  II  C\*  I- 


Prerogative  of  the  King.  205 

5.  II  e.  I.  Kot  Cl>ut  a3cnib>  s-  Cbe  l^ing  sraiitcti  ta  tfjc 

ClUCCU  A  Manor  Habendum  libi  &  Ilsredibus. 

6.  3  €*  I.  Rot  €\)m.  ?0cmh.  4-    3!ii  ^cljcUitlii  amicca.    The 

Feme  of  E.  i.  was  obliged  to  Robert  dc  Bohun  in  Millclibris  ex  Ancnfu 
&  voluntate   Domini   Reikis  DOmilU  noai't,  ailU  aftCU  JnQJtVimUS, 

anti  tl)E  lAino;  confinncD  (jc. 

7.  9  €.  u  Eot.  Cljart*  vT9cmli*  4*  l^i'o  loljnnnc  Jfcrrcr,  the  *  ong  h 

Queen,  Confors  Regis,  *  grunted  Muneriuni  dileclo  Milin  no!tro  Domino  (Gi-ant^eia.) 
Johanni  Ferrer. 

8.  8  C.  I.  $^0Utllt  4.  'STfjC  Queen  by  AlFent  and  Confent  of  the  King 
granted  a  Manor  &c. 

9.  10  (£*  I.  Rot*  Cljart  93cmln  3.  l^art  16.  Jnrpci'umid  tOe 

Grant  of  the  Qiiecn  of  the  Manor  in  Fee  JfaUUlUin  $^liltt  ItOftra  Gai- 
frido  de  Piehford,  which  had  been  granted  to  the  Qiieen  and  her  Heirs 
bv  another  &c.  C!)C  King  confirmed  &:c. 
'10.   II  €>  I.  Hot.  Cljart.  il9Caib.  4*  '^DC  I^'ng  confirmed  a  Grant 
which  the  Queen  had  made  &c.      iS  (Jr.  i.  $?9cml3«  n.  -o.  nCCOl'tlimj^ 

Ip  Of  a  ^raut  in  JFcc  I^p  tljc  Citicctt. 

"11.  3  e>  I.  Eot*  l^at*  a9cmb»  h-  Jn  «)CijcmUa  aimc.ca.  coe  *  "'i?;  is 

King  granted  all  Debts  *  whatfoever  to  his  Wife.  L  FcmO  "* 

it  Teems  (k)  fliould  Bj  (:iI.  > 

12.  '(ICljC  King  cannot  grant  to  another  for  Life  the  Office  of  making 
Saddles  for  the  Queen  ;  bCCailfC  fijC  (6  a0  a  ifCUlC  TOlC,  ailtl  fO  may  elett 
own  Officers*     Dllb*  !£)♦  6.  Ja,  15.  UCtlUCXn  JiihHnuruiill  and  Cure. 

13.  In  (^Vr^rrf  linpcdit  by  the  (^een,  the  Writ  wanted  thefe  Words,  Co.  Litt. 
Et  nift  fcTcrtt.     Thorp  fiid  the  ,^W//  is  a  Perfon  exempt,  and  foall  not  15;^ a.  cites 
U  amerced  for  her  Nonj'mt  i  and  therelore  i\\<ijhall  not  fJndPkd;:^cs  dc  Pro-  \^^~[^-^^^ 
feqriendo,   and  ilie  pall  have  Writ  of  Form  in  all  Points  ds  the  Kin^  /hall  j,: 

k-ive  i  and  therefore  the  Writ  was  awarded  good.      Br.  Nonability,  pi. 

59.  cites  18  E.  3.   12.  &Fitzh.  Brief  355.  n    p    r  ■ 

14.  In  Scire  facias  it  was  admitted,  that  tlie  Kin^^  may  give  to  the  ^^- ^^^  "^j'^'^' 
Queen  certain  Portion  by  his  Letters  Patents.,  by  Divilion  certain.  And  io  ^.^j^,;  ^  (T' 
lee,  that  the  Queen  has  a  Capacity^  tho'  Ihe  be  Feme  Covert,   and  may 

take  of  her  Baron  ;  and  this  feems  to  be  for  Term  of  Lile.     Br.  Non- 
ability,  pi.  58.  cites  49  E.  3.  4.  .    ,     ^  ,  ,  tT-     *•(   r  r    c 

15  In  Fcrmedon  the  Tenant  vouched  the  G)neen  and  two  others.,  as  Heirs     'J^^^''-'  of 
of  the  Duke  of  Thrk,  &nd  jhezved  Canfe  by  the  Duke.    Brian  laid  the  Queen  'J^/^'f^^g^ 
is  not  a  Perfon  able  to  be  vouch'd  as  here  j  for  this  is  a  Real  Matter;  but  j^  j^  j^^^^.^^J 
in  Perfonal  Caufes  jhe  is  exempt,  and  has  Ability  as  a  Private  Perfon,  and  Regina  hi- 
may  make  Gift  or  Leafe  for  Term  of  her  Life:  And  therefore  by   him  the '|'{/^'/*.»  ;and 
Tenant /XW/  have  firfi  *  Jidofthe  King,  and  ajtcr  of  the  .<^iieen,  but  not  of  [l;^";^;^'  °^ 
loth  together.     And  it  was  doubted  it  the  Queen  he  a  private  Perlon  f  ex-  p,averj7w/ 
emptedby  the  Common  Laiv,  or  by  Statute  ;  for  il  it  be  by  Statute,  it  oLight  mt  lecounur- 
to  be  pleaded;  Per  Brian;  for  it  is  a  private  Statute.     But  per  Town-  P^-^t^d  rio 
fend,  if  llie  be  exempt  by  the  Common  Law,  the  Tenant  need  not  have  "h"' oiTor 
Aid  of  the  King.     Br.  Nonability,  pi.  56.  cites  3  H.  7.  14.  tl,e  King. 

Co    Litt. 

J,,   J, +  The  Queen  Confort  of  the   King  of  England  \s  an  exempt  Per/an  fi-om  t'le  King  by   the 

Common  Law,  an.i  is  af  Ability  and  Capacity  to  Punh.xje  ami  Grant  without  the  King.     Co.  Lftr.'  ;.  a. 

. Per  Brian,  The  Queen  is  a  Sole  Perjon  by  the  Common  Law,    but  not  ta  all  Intents.     Br.  Aid  del 

Roy,  pi.  <;(S.  cites  5  H  7.   14- 

16  Suit  by  Petition  does  not  lie  to  the  Queen;  for  JJife,   Precipe  Co.  Lin. 
quod  reddat,  and  the  like  lies  agamji  her.     Br.  Nonability,  pi.  60.  cites  '35-  ^' 
II  H.  4.  67.    Per  Cur. 

17.  In   &u.'!re  Impcdit  brought  by  the  Queen,  fome  fay  that  Plenarty  is 
no  Plea  no^iiore  than  in  Cafe  of  the  King.     Co.  Litt.  133.  a. 

18.  If  any  Baililf  of  the  Qiieen's  bring  an  Aiiwn  concerning  the  Hun- 
dred'ht  Pxifl  fay  hi  CoHtemptiim  Domini  Regis  i^  Reguue.  Co.  Litt.  13^.3. 

'       '       ^  ^  "^  Fff  19-  Tht 


2o6  Prcrosative  of  the  Kins:. 


19.  I'hc  Qiieen  Ihall  pay  uo  T'oll.  Co.  Lite.  133.  b. 
♦  This'eems  20.  lithe  tenant  of  tte  ^uen  aliens  a.  ccitain  Part  oi  hh  Tenancy  to 
to  be  mil-  ofJi',  and  another  Part  to  another,  the  ^iieeit  *  viay  difratn  in  any  one  Part 
^7'"'^<h  ^"f^yor  the  -dvhole,  as  the  King  may  do  ;  but  other  Lords  lliall  diltrain  but 
be'''may[iiotj  ^"^  "^^c  Rate  i  and  therelorc  where  the  Queen  fb  diltrains,  there  lies  a 
diitrcin  &c.  H  nt  dc  De-oneratido  pro  rata  Port  tone.  Co.  Litt.  133.  b. 
or  otheiwife 

lere  Ictms  an  Incorfiftcncy  ;  and  F.  N.  B.  255.  (A)  is  that  the  Writ  de  De-onerando  pro  rata  Portione 
i^  aAv;irded  to  the  Queen's  Officers  where  they  dilirain  one  Tenant  for  the  whole  Kent,  wliere  lie  liold.< 
but  Part  of  the  I>andi,  and  feveral  other  Tenants  hold  the  Rcildue  thereof. 

21  The  Writ  of  Right  fliall  not  be  directed  to  the  Oucen  no  more 
than  to  the  King,  but  to  herBailiifi  ocherwile  it  is  when  any  other  is 
Lord.     Co.  Litt.  133.  b. 

22.  A  Proteiiwn  Ihall  be  allo-jced  agamjl  the  Queen,  but  not  asainitthe 
King.  Co  Litt.  133.  b. 
S.  P.  Co.  23.  The  Queen  is  not  bound  by  the  Statute  of  Marklridge  for  dri\-ing  a 

Litt.  151.3.  Diltrefs  into  another  County.     Co.  Litt.  133.  b. 

24.  It  any  do  coi/ipjfs  the  Death  o/  the  Queen,  and  declare  it  by  any 
overt  Acl,  the  \ery  intent   is  J'rcafcn  as  \n  the  Cafe  ot  the  King.  Co. 
Litt.  133.  b. 
2  Hawk.  PI.      25.  Queen  Confort,  in  Cafe  of  Treafon  by  her,  fliall  be  tried  per  Pares, 
44.'s''ir^'   as  Queen  Anne,  the  Wife  oi   H.  8.  was.  Pafch.  28.  H.  8.   in  the  Tow- 
er of  London  before  the  D.  of  Norfolk  then  High  Steward.  2  Inll.  50. 
26.  It  was  adjudged,  that  where  the  Queen  was  Tenant  for  Life,  and' 
a  Copyhold  of  Inheritance  Ef  cheats  to  her  ^  there  the  Queen  tnay  grant  it  to 
w  hem  ll.e  plealbs,  and  this  ftall  bind   the  King  his  Heirs  and  Succef- 
fors  for  ever  i  For  Ihe  was  Domina  pro  Tempore,  and  the  Cultom  of  the 
Manor  fhall  bind  the  King.  4  Rep.  23.  b.  Trin.   26  Eliz.  in  Cale  of 
Clark  V.  Pennitather. 


*  ^  was  re-  (C.  e)  *  Aumm  ResLmse. 

folved,    I.  ^  '  O 

Tiiat  this 

ought  to  be    I.     15  E.  3.  cap.  6.  Item,  That  the  Queen's  Gold  ftall  not  run  in  De- 

s\>b;eft  y.>r  l"i^>:/''^°"  °j  ':^f  ^Ji"^-  '^^^  ^^^^  ^mi\  m  <2?rant  of  tDe  9tl). 
that  this'     2:)orroiei,6o.foc  ajfiftcEutf^  ^^  i.  i^«vu  5^.5. 

ought  to  be 

to  be  at   the  Pleafme  of  the  Subjed,  whether  he  will  offer,  or  give,  or  no.    And  for  this  all  Fn:esi<ton 

Ji<agn;ent,  or  hy(iV[cr  or  h\nc  for  Jlienathn,  or  in  any  other  Calfe  where  the   Sub]ect   does   rot  doit 

Spate,  jmeahcjHa  coaaior.e,  Tiz.  That  the  King  of  right  ought  to  have  it,  there  the  Queen  fliall  have  no- 

thing. 

r-/'.  ^^c^"^)^  ^°  ^^  Spovtefne  CmiJ^ der.il tone  alicujus  Reventioms  fit,  hunjfe,  That  the  Kin^  hath  in 
EJfe  w  Jure  Ccrc,!^,  and  for  this  M^onSaleorDemife  of  his  La„ds,  or  Wares,  or  Goods  of  Fekvs,  Out- 
tMTS,  tPpmlt  6,7/«,  tor  thcfe  are  Contrafts  and  Bargains  concerning  the  Revenues  and  Intereftsof  the 
King  ;  And  It  cannot  be  faid  in  fuch  Cafe,  that  the  Snh]z&s  Sfonte  fe  obligam,  as  to  purchate  or 
buyiig  any  the  Revenues  or  Interefts  which  the  King  has.  -f         J         s      »  f 

5.  It  ouj;ht  to  beSpoTJteJae  Copfidfvaticmm,  &  "on  ex  mera  Gratia  &=  Bene'iohr.tia  SMiti;  For 
that  which  IS  of  mere  Grace  is  not  properly  laid  of  Obligation  or  Dutv,  and  the  V\'ordsof  the  Records 
are  to  have  De  us  9"'  Jpcfefe  OhUgai^t,  and  fo  it  was  ordained  by  the  King  and  his  Counfel,  as 
appears  by    the  Record  of  Hill.  4  E.  i.  in   Scaccario  &c.  """'ci,  « 

4.  It  .ought  to  hcSpcme  fupcr  Covfiderationem,  quA  mn  attivnat  Revenitover,,  feu  Ivtereffe  Corovx  in 
any  Thing  which  the  Kiug  has.  As  if  the  Subjeft  give  to  the  Kit:g  Spam  a  Snm  ot^  J^Ioney  for 
Lnence  ,n  MorUmun  or  {or  to  create  a  q-^^ure  of  hw,felf  to  have  a  f-»>,  JMe,,  Park,  Chafe,  or 
If  arre„,ru,,thn  hn  Maror,  there  the  Queen  fhall  have  it  ;  For  the  Subject  did  this  Spme  ard  was 
not  conftrainedto.t.  Aodthisdoes  not  concern  any  Revenue  or  Intereft  of  the  King^  But'iftht 
^"n  r  \Z  °''  ^'^'^",'.°'-  P-'-'k.  o--  Warren,  a„d grarsts  ;>  /.,-  a  Sun,  of  Mo.ey,  there  the  Queen 
fliall  have  nothing  ;  For  this  wa,s  a  Thing  ,„  EJfe,  and  Parcel  of  the  Revenue  ot^  the  CownTAnd 
by  th.t  It  appears,  that  for  as  much  as  little  or  nothing  is  given  in  fuch  Cafe  where  this  of  richt  is 
due,  this  IS  not  now  of  any  fuch  Value  as  was  pretended.  And  this  Refolution  was  reported  to 
our  Soveicign  Lord  the  King  by  Pophsm,  in  the  Caliay  at  ^ /,WW/.  12  Rep   ;i.  Pa;ch.4jl 

2.       31E. 


Prerogative  of  the  King.  207 


2.  ?i  E.  3.  cap.  13.  €;bc  Commongi  grant  a  ififtccntij  totl)c  Mtij, 

and  our  Sovereign  Lord  the  King  hath  granted  to  the  iiiid  Common3,Thac 
the  faid  Quinzim  [being]  io  granted,  no  Gold  Ihall  be  demanded  nor  le- 
vied to  the  Ufe  of  the  Queen,  but  that  the  faid  Commons  Ihall  be  there- 
of wholly  difcharged. 


(D.e)     *  Monopolies.  *amo-o- 

poly  ii  an 
_  _.,  ,,  Iiillitution,    ' 

u   RotPiirl.  I*  IX  5*  B.  41*  -COc  Comniond  ptap,  '(Eljnt  -McA-juo^.vce 

Alerchancs  may  export  to  any  Place  abroad,  or  import  from  any  Place  by  the  King 
any  Goods,  (except  thofe  of  the  Staple)  at  tfjCtr  l^ScafUrC,  painiUJ  tliejl'^"^^^''"^' 

Citftoms  autJ  otijcr  Duties  hm  to  poii,  anp  is^roclamation  tu  t«jeor™r«^fe 
contrarp  uotUJitljaaitOius^c*  ^nfmer.  C!jc  l\ms  uiiU  lie  aniiifcD  uj)  Wtoa^^y  Pe,fon* 
Councit»  ^^  ^''•'"""s 

r.odies  I'oii- 
ikk  or  Qrforjte  of  or  for  the  fcle  Pttyh:?,  SeUiKg,   Making,  Working,  or  Ulng  of  any  Thing,  \\hei-eh)r 
anv   Pei-fon  or  Pcrfons,    Bodies   Politick  or  Corporate  are   foii<;ht  to  be   vef'^.aincd  of  any   Free- 
dom, 01  Liberty  that  they  liad    before,  or  hindered  in   their   lawful  Trade.  5  Inrt.  181.  cap.  85. — • 

Hawk    PI    C.  2;i.  cap.  79.  S.  i. The    Difference  betveen  A/imprly  anii  Enj^rcfjing  is,  the  one  is  by 

Patent  from  the  King,  the  other  is  by  Aft  of  the    Subjeiit  between  P.irty  and  Party.  Arg.  Skin.   i(fj, 
Pafch.  56  dr.  2.  B  R.  in   Cale  of  the  Eaft  India  Comrany  v.  Sandys. 

2.  Monopolies  are  agairifi  the  ancient  and  fundamental  Laws  of  the 

Realm.     3  Inll.  181.  cap.  85. Generally  ail    Monopolies  are  a- 

gainfl:  Magna  Chart  a  .^   becaufe  they  are  againft  the  Liberty  and  Freedom  of 
the  Stiijeii  and  the  Law  of  the  Land,  z  Inll.  47. 


(D.  e.  2)  Monopolies  as  to  Pr'inthig^  and  of  Suits  relathjg 

thereunto. 

i.rnpHE  Patent  for  Printing  Laiv  Booksy  derived  down  to  Col.  At- 
t  kins,  was  to  Print  ail  Lazv  Bonks  that  concern  the  Common  Law^ 
wherc-in  No  body  elle  has  an  efpecial  Privilege  granted  under  the  Great 
Seal  of  England.  Afterwards  an  Agreement  was  made,  in  Purfuance 
of  this  Patent,  with  the  Stationers,  which  was.  That  the  Stationers 
ihould  no  longer  Print  Law  Books,  without  the  Allent  of  Col.  Atkins. 
In  arguing  the  Cafe  ot'  Printing  Roll's  Abridgment,  being  Licenced  by 
the  Judges,  it  was  inliiled  and  admitted  by  the  Counfel  of  the  Paten- 
tee in  Parliament  i.  That  this  Grant  is  no  publick  Grievance.  2. 
That  the  llopping  the  Impreliion,  tho  licenced  by  the  Judges  is  jufti- 
fiable.  3.  That  the  L^ra:  Patentees  may  nii  Print  Law  Books  zvithout  the 
fudges  Licence.  4.  That  an  Injun&ion  out  of  Chancery  againll  Print- 
ing llu'h  Book  is  jult  and  Right.  The  Words  of  the  Ail  of  ii\Car.  2. 
33.  whereby  the  Licencing  ot  Books  is  enailcd,  fay,  That //o  Manjhail 
Print  a  Book  till :t  be  licenced.  Therefore  there  arc  two  Things  in  this 
Claufe.  I.  That  noiMan  can  Print  a  Book  till  it  be  licenced,  z.  7'he 
Licence  mnft'  jxtrjne  this  Atl  of  Parliament.  It  I  bring  a  Book  to  the  Li- 
cencer^  and  he  a*///  not  \ficcnce  it^^  I  have  no  Retncdy^  not  (b  much  as  an 
Aftiou  upon  the  Cafe,  only  a  Recciirfe  to  the  King  to  make  Complaint.  So 
that  although  this  Abridgment  be  licenced  l>y  the  fudges^  yet  if  in  Truth 
it  be  not  licenced  by  the  King  to  Print  it,  though  the  Book  may  well  be 
Printed  by  Him  that  has  Authority,  yet  he  that  has  No  Authority  can- 
not. It  is  one  Thing  to  licence  a  Book,  by  laying,  T'his  Book  is  Jit 
for  Publick  Vie'iiu ;  And  another  Thing  to  lay,  '/his  Book  thus  licenced fiall 

be 


2o8  Prerogative  of  the  King. 


be  Prnitid  ly  any  that  ct'.H  get  it  into  liis  Hiinds.      Licence  to  Print,  goes 
to  the  Bookkllcr  or    Pi  inter  ;  Lianfc  to  be  Trintai,  goes  to  the  King. 
Cart.  89.  Mich.    18  Car.  2.  in  Parliament.  The  Stationers  v.  the  Paten- 
tees about  Printing  Roll's  Abridgment. 
S  C.  cited  2.  The   Company  ot"  Stationers   brought  an    Afiion    againft  S.   for 

hV\n  23+  Printing  Gadbury's  Almanack  without  their  Leave.  Upon  a  Special 
^''g'j^' Jj^'^' Verdict  Ibund,  the  Queltion  was.  Whether  the  Letter  Patents  granted 
Caib  of  the  to'theCompany  lor  tlK'  fole  Printing  oiAlmanacks  were  good  or  not?  The 
Company  of  Court  i'aid,  i'lvM  ^-jlinanacks  might  be  accounted  Pnrogative  Ccpns,  and 
St-uionei-s  v.  yyjtihout  Doubt,  this  might  be  granted  by  the  King,  and  accordingly  gave 
^£l\>\A.  Judgment  lor  the  PlaintiHs,  Nili  Caula  &c.  3  Mod.  256.  Trin.  29  Car. 
2-6.  the       2.    C.  B.     The  Company  ot  Stationers  V.  Seymore. 

Court  \'\i\A, 

they  tliouj;ht  it  a  hard  Cafe. A  (Jiiefion  was,  Whether  the  Grant  of  the   Crown   to  the  Com- 

panv  of  Stationers  to  have  the /o/e  Prititni,^  of  Jhaanaiks,  provided  they  were  liceiifed  by  the  Arch- 
bifliop  of  Canterbury,  and  Bifhop  of  London,  were  a  good  Grant,  or  void,  bccauTe  againll  the  Li- 
berty of  the  Subjefts  ''.  It  was  argued  in  h\ivour  of  tlie  Patent,  that  fince  the  Art  oi  Prh.tnig  was  found 
out  it  has  been  more  urder  the  Care  of  the  Crown  than  any  other  Art  whatfoever.  l(l.  Becaufe  it 
vasan  Art  introduced  by  the  Care  of  the  Crown;  lb  faid  in  (£arftT'5  Cafe,  wliich  gave  the  Crown  a 
Fi-cperiy  in  the  Tra  e.  idly,  Becaufe  of  the  Greatnefs  of  the  Inccvieiiionc,  that  may  redound  to 
the  Publick,  from  the  ^lifmanagenient  of  the  Prefs.  In  Cart.  Rep.  89.  the  Controverfy  was  about 
tiie  Printing  Rolle's  Jhridgment,  and  was  decreed  in  Chancery  in  Favour  o(  the  Patentee.--,  and 
I Vcree  confirmed  in  the  Koufe  of  Lords.  Mich.  24  Car.  2.  the  Quelfion  was,  about  the  Patent  for 
fole  Printing  of  all  L/.tu  Books;  Judgment  againft  the  Patentee  in  B.  R.  for  the  Uncertainty  of  Khat 
'(i^ali  he  epee7ved  a  Lr.iv  Book  ;  but  this  Judgment  was  reverfed  in  the  Hon fe  of  Lords.  1  Mod.  25<S. 
A'tVinOlir'S  Ca<e  full  in  Point,  the  fame  Objectioiis  made  as  here.  In  54Car.  2.  (S.omi.ianp  Of^ta* 
fIClUrS  i).  ^bintltr,  Patent  allowed  for  Primniers,  Pfulters,  Pfahiis,  and  Jlnuxnricks.  34  Car.  2.  in 
C;iiancery,  ClOlTipanv  Of  /A'tatiOlUrS  \).  'S^iyn  (Eiall-  ;  No  Decree,  indeed,  for  Printing  Pfalms, 
Plalters,  and  Almanacks  ;  But  the  Reafon  was,  becaufe  the  Pcrfon  controverting  the  Patent,  fubmit- 
ted  without.  25  Jan.  54  Car.  2- ^tatlOlUr'S  CompailV  1).  Cilritillt;  Patent  for  Printing  P/^/wj  al- 
lowed. Mich.  95  Car.  2  ^failOlUr'fi  Coinf anj' D.    jdrc,     Another  Patent  for  Pfalms.  Trin.  12  \V. 

;.  S^tationtrs  Coinvanp  i). Paten:  for   Almanacks.     In  Stat.  9  Annse,  this  very  Patent  now  in 

Oiicftion  was  taken  Notice  of  And  per  Cur.  the  Patent  for  fole  Printingot  Law  Books  is  not  now  to  be 
fhaken,  having  had  the  Sanction  of  the  Houfe  of  Lords.  Monopolies  are  odious  ;  this  Cafe  is  therefore  to 
be  dittinguiftied,  by  deriving  to  the  Crown  forae  fpecial  Interell  in  Almanacks.  No  Opinion  was  given; 
but  to  be  fpoken  to  again.  10  Mod.  ic6,  107.  Mich.  11  Ann.  B.  P..  in  Cale  of  Company  of  Stationers 
V 

S.P.  2Chan.  3.  An /;//«;/ (f7/o«  was  granted  to  Ji ay  t\\e  Selling  of  hxx\&  Books  imported 
Cafes  -6.  jyfjjjj^  Holland  8cc.  the  fole  Printing  whereof  belonged  to  the  Company  of 
Car  2' Vhe Stationers.  2  Show.  258.  to  261,  Hill.  34  &  35  Car.  2.  the  Company 
Company  ot  of  Stationers  v.  Lee. 

Stationer's 

Cafe. 2  Chan.  Cafes  93.  Pafch.  54  Car.  2.  S.  C. 

4.  King  Charles  II.  granted  to  the  Plaintiff  the  fole  Printing  of  Blank 
JFrits,  Bonds,  and  Indentures,  for  the  Space  ot  30  )l'ars.  The  Deten- 
dant  was  a  Stationer,  and  the  Cow//)<^;/j)'  of  Stationers  bad  conlhintly/or 
the  Space  of  40  2 ears  laft  paft,  before  this  Grant,  printed  Blank  Bonds, 
the  Queltion  was.  Whether  this  Grant  was  good  exclulive  of  all  others? 
The  Court  fliid.  That  the  King  had  a  Prerogative  to  grant  the  fole  Print- 
ing to  a  particular  Perfon  3  but  inclinedj  that  the  Patent  was  not  good. 
3  Mod.  75.  Pafch.  i  Jac.  2.  B.  R.  Earl  ot  Yarmouth  v.  Darrel. 

5.  King  Charles  I.  grants  to  the  Univerlity  of  Oxon,  Power  to  Print 
tain  Libras  content,  in  the  Charter  granted  by  King  James  to  the  Stationers 
of  London  ^uam  alios  ff on  probibitos.  In  an  Action  brought  againft  P.  by 
the  Stationers  of  London,  he  pleads  thefe  Letters  Patents  ot  Car.  1. 
The  Court  inclined  for  the  Detendant,  for  this  is  a  Prerogatii'e  of  Po^ver 
annexed  to  the  Pcrfon  of  the  King,  which  he  could  not  grant  fo,  but  that 
he  may  refume  3  otherivife  it  is  of  the  Grants  of  anintereji  3  but  Advifare  v  ult. 
Skin.  233  to  236.  Patch.  1  Jac.  2.  B.  R.  Company  of  Stationers  v.  Par- 
ker. 

6.  In  8  Ch.  I.  there  was  a  Patent  granted  to  the  Univerfity  of  Oxford 
to  Print  Bibles  and  other  Books  not  prohibited.  30  May,  8  Car.  the  Pa- 
tent is  confirmed,  and  limits  that  there  lliall  he  but  two  Prclfes  and  three 

Pi:r-er« 


Prerogative  of  the  King.  209 


Printers.  The  Plaintiffs  claim  as  the  King's  Printers  under  feveral  Pa- 
tents continued  down  by  inelne  Aliignmcnts,  and  bring  their  Bill  to  re- 
train the  Defendants  from  Printing  Bibles  &c.  The  Lord  Keeper  was 
oi' Opinion,  Thitif juas  never  meant  by  the  Patent  to  the  Univerfity, 
that  they  Jhonld  Print  more  than  for  their  own  Ufe,  or  at  leaft  but  feme 
fmall  >s'uniber  more  to  compenfate  their  Charge  i  but  as  they  now  ma- 
nage it,  the  >' would  ingrois  the  whole  Profit  of  Printing  to  thcinfelvcs, 
and  prevent  the  King's  Farmers  of  the  Benefit.  However,  he  faid. 
That  the  Validity  ot  their  Patents  was  a  Matter  -proper  to  be  determined  at 
Laiv,  and  the  Plaintiffs  were  now  proper  only  for  a  Difcovery,  and 
therefore  ordered,  that  the  Plaintitis  Ihould  bring  an  Aftiori  at  Law  in 
B.  R.  againll  the  UniverJity,  or  thofe  who  claimed  under  the  Univer- 
lity,  and  that  ic  fhould  be  tried  at  the  Bar,  and  the  Det'cndants  were  to 
admit  that  they  had  Printed  a  competent  Number  of  Bibles  at  the  Trial. 
And  tho'  the  Plaintihs  prefs'd  much  for  i7;;////7/«(J?fo«  to  Itay  the  Univer- 
fity Printers,  yet  the  Lord  Keeper  refnfed  to  grant  itj  becaule,  if  it 
fiiould  be  luund  for  them,  they  would  receive  a  Prejudice  which  he 
could  not  compenfite,  nor  make  good  to  them.  2  Vern.  275.  Mich.  1684. 
Hills  &  al.  V.  the  Univerfity  of  Oxford  &  al. 

7.  Serjeant  Hawkins  fays,  It  leemsto  be  the  better  Opinion,  That  the  4  ^-  ?■  ^ 
King  may  grant  to  particular  Perfons  the  Ible  Ufe  ot  fome  particular  Im-^^'  '''^';'*V 
ployment,  as  of  Printing  the  Holy  Scriptures^    and  Law  Books  &c.  the Sencanr's 
whereof  an  unreltrained  Liberty  would  be  of  dangerous   Confequence.  Authorities, 

Hawk.  PI.  C.  231.  S.  6.  ^^'I'di  ^le 

.  Mod  256. 

5  Keb.  -9:.  [Trin.  19  Car.  2.  B.  R.  The  Stationer's  Company  v.  Seymour]  &  5  Mod.  75.  [Pafch.  i 
|ac.  2.  Earl  ot  Yarmouth  v.  Barrel.]  nor  his  Rcafons  fecm  to  carry  any  great  VWigin  with  them  ; 
That  as  to  the  Cafe  of  the  CompailJ'  Of  ^tationtrfl  iJ.  &U'moirr,  which  is  moll  to  his 
Purpofe,  the  Aftion  was  brought  againft  Seymour,  tor  printing  m\  Alnnnack,  which  was  thcr^ 
held  to  be  the  proper  Copy  of  the  Company  of  Stationers  only  witii  fome  trifling  Additions 
concerning  the  Weather  &c.  Befides,  the  Atf  of  i  5  ar.di4  Car,  z.  againft  Printirg  without  Licence  was 
th»n  in  Force  ;  as  it  was  alfo,  when  that  Judgment  in  the  Houfc  of  Lords,  cited  iu  that  Cale,  was  "iven 
againll  one  who  printed  a  Law  Book,  from  the  Patentee  [And  alter  other  Things,  he  fays]  But  fur- 
ther, the  Patcr.t  for  printing  l^aiv  Bcoks  as  it  flar.Js  at  this  Day,  dites  n.t  at  all  prevent  the  inunvej:iei!cies 
Mr.  Hawkins  would  redreis  ;  For  thefe  Eooks  are  never  pcrufed  by  any  of  the  Learned  before  thcv  are 
put  to  the  Prcfs  ;  and  if  iUti  Maxims  of  Tom  TltMi,  or  DuHor  Doclittie  came  to  their  Prefs  under  the 
Title  of  Law,  I  dare  undertake,  the  Patentees  would  make  no  Scruple  of  printing  them  as  fuch  ;  there- 
fore if  it  fliould  be  admitted  to  be  rea'.bna'^lc  that  fome  learned  Man  of  the  relpettivc  Profelfions  of 
Law,  Divinity  and  Phyfick  &c.  ought  to  perufe  every  Book  before  it  goes  to  the  Prefs,  this  is  far  from 
being  a  Reafon  for  eftablifhing  fuch  ?.  Patent  as  is  contended  for  ;  If  there  be  any  dangerous  Confc- 
quences  ro  be  apprehended,  they  muft  arifc  from  the  Books  not  being  pevufed  by  a  Man  of  Judgment, 
appointed  by  Authority,  and  not  from  the  Printing  them  by  this  or  that  Man ;  For  let  tiie  Book  be  firit 
perufed,  and  have  the  Sai:£tion  of  an  Imprimatur,  the  Printing  will  be  probably  better  performed,  and 
the  Publick  better  ufcd,  where  there  are  feveral  Shops  to  go  to,  than  w  here  we  are  tied  up  to  one  ;  For 
in  this  lift  Cafe,  whatever  Hardfhips,  or  unfiir  Dealing  wc  meet  \\uh,  it  may  be  dilFicuIt  to  find  Re- 
drefs. 

[As  to  the  Law-Patent,  I  believe  I  may  confidently  affirm,  that  there  is  not  one  Individual  Gentle- 
man ofLeari-ing  in  the  Profeflion,  but  thinks  the  Patentees  have  moft  grolly  abu'ed  it,  to  the  great  Dif- 
honour  and  Difreputation  of  the  Law,  and  the  great  Injury  of  the  Body  of  its  Profeflors.  V^  hence  ariies 
the  great  Difcfteem  entertained  by  Foreigners  of  our  Law.s,  but  from  the  many  trifling,  paltry  Books, 
which  the  Patentees,  from  a  Plenitude  of  Power,  which  tliey  flatter  themfelvcs  10  be  inveHcd  v/ithall, 
as  well  as  Want  of  Modcfty,  and  decent  Regard  to  their  Suicriors,  and  in  Defiance  and  Contempt  of 
the  ProfefTion,  have  from  time  to  time  ufliered  into  the  World!  .\nA  nothing  probably  can  iecurcthc  Ho- 
nour and  Dignity  of  oar  Laws,  but  putting  a.  Stop  to  thefe  Licentious  Practices,  by  reftraining  the  Pa- 
tentees from  pubiifhing  any  Book,  within  the  Compafs  of  their  Patent,  without  the  Sandtion  of  an  Im- 
primatur •  And  under  fuch  Reftriction  I  am  inclined  to  think  the  Patent  may  prove  not  prejudicial  to 
the  Publick] 


(E.  e)     //;/  ijohat  Cafes  it  may    be  granted.  And  njohat 

is  a  Monopoly. 

I*     A    n90nOpOlp  grantCntO  a$19an   of  tllC   fole  making  of  cards  S^C.  argued 

X\  within  the  Realm  10  ^oiQ,  anti  iiamnft  tl)C  Commou  Latu  ^g°y-_l2 '"* 
vm  m^ci.d  ^atutc^,  becaufeitisaii  ipinDvancc  of  Ctim%ca,  n,  sc.  argued 

G  g  g  A'Jonop.  and  adiudg 


2 1  o  Prerogative  of  the  King. 


b    Trin.  44 

Eii/, -Hawk.  PIC.  zjr.  cap.  79.  S.  5 Mo.  6-1.  S  C. S  Rep.  12.5.  S.  C.  cited— 2  In.1.  47. 

A  Grant  to        2.   If  Jl  Statute  pro  bono  Publico  reftrains  the  Importation   of  divers 

any  paiti:u-  Manutaciurcs,  bccaufe  tlje  g>ub)ctt0  cui\ljt  to  applp  tljemiclliciS  to  tl)& 

ti'nnofX"'"  Uiahing  Of  tljCUl,  nOlU  if  tljC  King  grants  the  Ible  Importation  otchem  to 
Me  Imoor-    one  or  di\  era  (without  any  Limitation)  UatlUitijffaUDilig;  tlje  2Ct  i  '^U& 

taiianofany  i<3  fl i^aiiopol))  nRaiul!  tljc  Commou  itTo),  aiiD  t'ozlmmt  of  tije 

Mcrdian-      ^fj-jtutc.  Q^O.  II.  Ahimpohcs  H'i. 

Sether'  '       3-  As  ^UijCrCtljC  ©tatlltC  Cf  3  K-  4-  En^^ts  that  none  fliall  import  any 

iuch  Mer-  Cards  (jc.  if  tfjc  i^iiui;  ijrasits  to  a  a5an,  tljat  Ij£  fljal!  impait,  nata}itl> 
chandr/xbe  {[anmns  tfjc  Scti  "^W  ^  a  ^^onopcilDj  anoi^olQ  ijp  tljc  \m  M^ 

p.hibitedor     (Tq     II.  gS. 

?;,/,  as  being  ^^ 

a2;:iinft  the 

Freedom  of  Ti-ade,  and  difcouraging  Labour  and  Induftry,  and  refirainirg  Per'bns  from  getting  an 

honeft  Liveliiiood  by  a  lawful  Employment,    and  putting  it  in  the  Pov\evof  ^.jrti.ulai-  Perlbos,  to  fet 

iv-hat  Prices  they  pleafc,  all  which  arc  manifell  Inconveniencies.  Hawk.  PI.  C.  251.  cap.  79.  S.  2,5. 


JMounfon  v. 
Lv'fler. 
H.^wk.  P.  C. 
251  cap.  79. 


Hawk.  PI.  C.       4.  JftljC  mimj  grants  tV  patent  the  fole  ingroffing  of  WiJJs  and- 
2;i  cap.  79.  Inventories  m  the  Prerogative  Court  J.  S.  Cljlg  !«j  a  ^^OltOpOiP,  fiHH  fO 

has^een're-  ^^iD  i  iTor  It  uU^  lAMW  tljc  libcttp  Of  t!)e  ^uS3}crt,"a3i)0  map  insrof? 
foiv ai  tor  It  ijimliif,  or  any  otljcr  liijojii  fjc  pleafcg*  Cit  tfje  l^arlia riicnt  of  i  b  anti 
the  like  19  jac.  Eeforuco  in  ^Ir  Robert  Fiiidd's  cafc*  Siiiti  tlje  patent,  aO-- 
f^^^i^';^f^;j3iii)0;elibpiije  parliament  to. tie  a  ©rieiiancc,  miii  Sir  Robert  Fiudd 

pl''2  and  '•°    P"-^'-  '-"^'-  ^'^  ^'^^  Houi'e  for  a  Projeftor. 

above.     '         5*  JftljCEmSSurntg  bp  patent  the  fole  making  of  Bills,  Plea?, 

Jo  2;  I.  and  Rriels  in  the  Council  of  York  to  J.  S.  for  a  certain  Fee,  iGijCte  bCFOtC 
H.ll.  6    Car.  f  Jjg  c^j-j-q^ j^jp^g  jjfjj,  j j,  ,.j^j^|.g  j.jjj>.j^^   ^^-^  j-j,  j,^^^  jjjj,  j^,,^^    j^^  ^,j,-j.|j 

s  P  ,„^,  nciujfee^  aix  ailouicn  to  tlje  Sttornci^s,  '-^^{^  i$  aijoin  patent,  «nD 
adjudged,  a  (i^rieuance,  lor  t\m  10  a  £!3onopoll'  i  Jror  bp  tljc  lame  l^caion,  bj) 
^ '  "  felserai  patcntsi,  tijc  fole  niatung  of  iSiUs  an?i  DecJarations,  maj)  be 
limiteb  to  certain  peifon0  in  encrp  Court  of  iBtfrminrrer,  auu  fo 
jLaiupergi  iittcrlp  ercluocD  to  make  aup  of  tfjeni.  ^.t  tOe  parliament 
18  anti  19  3ac.i^cfoltie0  wxLeipttm's  cafc,  aun  ijid  patent  aB):icn;eQ  a 
©riebancc;  for  it  10  againft  Eeafontljat  exierp  one  Ujaii  be  coinpciJen 
to  iljciu  m  Ci^iBcncc  to  one  ^an,  anti  upon  Crof0  a3il!g  Ije  fijaU 
ijaDc  tlje  ©leU!  of  tljc  cEiiiCcncejai  of  botlj  %mt^,  inijictj  10  not  Reafon* 

6.  In  50.  E.  3.  J oiin  Feachie  ot  London  was  ievcrely  puniihed  lor/iro- 
ctirbig  a  Licence  under  the  Great  Seal,  that  be  only  raight  fell  pxeet  li  uies 
in  London.  3.  Inil.  181.  cap.  85, 

7.  King  Philip  and  Q^ueen  Mary,  by  their  Letters  Patents,  granted  to 
the  Maj'or,  Bailiiis,  and  Burgellcs  of  Southampton  and  their  Succelfors^ 
(for  that  King  Philip  lirlHanded  there)  that  no  Wines  called  yl-/r.'/;///5'>j, 
brought  into  this  Realm  from  the  Parts  beyond  the  Seas  by  any  liege 
Man  or  Alien,  jhoiild  he  difchargeii,  or  landed  m  any  other  Part  of  the 
Reilm.,  kit  only  at  the  laid  Town  and  Pore  oi  Soatbainpton^  with  a  Pro- 
hibition, that  no  Perfon  or  Perfons  Ihall  dootliervvife,  ripvn  Pam  to  pay 
treble  Ciijlom  ;  And  it  was  refolved  by  all  the  Judges  of  England,  that  this 
Grant  made  inReftraint  of  the  Landing  of  the  fame  Wines  was  againlt 
the  Laws  and  Statutes  of  this  Realm,  viz..  Magna  Charta,  29,  30.  9  E. 
3.  cap.  I.  14  E.  3.  25  E.  3.  cap.  2.  27.  &  28  E.  3.  Statute  of  the  Staple. 
2  R.  2.  cap.  I.  and  others  j  And  alfo  that  the  Aflefment  of  Treble  Cuf- 
tom  was  againit  Law,  and  merely  void ;  And  after  at  the  Parliament 
holden  in  Anno  5  Eliz.  the  Patent,  as  to  Aliens,  was  by  a  private  Att 
confirmed  by  Parliament,  and  not  for  Engliih.  3  Inft.  182.  cap.  85. 

Salk.  44(J.  8.  The  Judges  have  hitherto  ^//ote;f//  of  Monopoly  Patents,  -ivhere  any 

Edgeberryv.  Man  ly  his  c^n  Charge  and  Induftry,  or  by  his  own  Wit,  cr  hiventioii^ 
Stephens.^S.  ^\^^]^  hung  any  wctc  Trade  into  the  Realm,  or  any  Engint  tending  to  the 
fuch  Cafes  it  Furtherance  of  a  Trade,  that  never  -zvas  ufed  bejcrc;  And  ih-it  fcr^tke  Good 
is  good,  of 


Prerogative  of  the  King.  2 1  i 

of  the  Realm ;  That  in  iuch  Gales  the  King  may  grunt  him  ii  -Monopoly  bcingindula:, 
I'atent  lor  fomc  reafonahk  Time^  until  the  Subjects  may  learn  the  lame,  in  ^'  ^/^^Int^jt' 
coniideration  oi  the  Good   that  he  doth  bring  by  his  Invention  to  the  ingenuity ; 
Commonwealth  j  othcrwifenot.    Nov  182.  Arg.  cites  9  El.   Hultings's  But  the  Srs- 
Cafe.  '  '"^^  -'  J"^: 

I.f/Tp  5.  fc.  6. 

ref>raimd  it  n  ihe 'ferm  6f fourteen  Tears,    it  beins;  prerumecJ,  tliat  after  that  Time,  it  will  be  a  kniSwn 
Trade.    Per  Parker  Ch.  J.  \\m,s's  Rep.  185.  Hi!].  17  1 1.  B.  R.  in  the  Cafe  of  JSlitchel  v.  Reynolds. 

9.  A  Patent  was  granted  for  fok  making  Frifadoes,    upon  Suggeftion  So  vhcrea 
of  bringing  the  Skill  of  making  them  into  England,  and  a  Fojlciturewas  „""p"j£j"'f''* 
was  given  o^  the  Goods  and  ot  100  1.  one  Moiety  to  the  King,  the  other  ',\'  f^,.  ji,^ 
to  the  Patentee,  upon  any  Ollendcri  Thereupon  an  Information  was  ex-  Tole  iTi.iking 
hibited  in  the  ]i>i.chequcr  againlt  fcveral,    who  demurred,    For  that  it  of  A>.7w 
was  againft  Law  to  have  fueh  Penalties oj  the  Goods  and  100  /.  ro  be  for-  '-^^J'  ^'""^ 
feited  by  Force  ot  Letters  Patents.  And  the  Court  being  of  Opinion  a-  pi^tes  of' 
gai nit  the  Patentee,    he   exhibited  his  Englilh  Bill,    in  the  Exchequer  a«//;,,;  Bc- 
Chamber  againil  them,  where  upon  the  Examination  of  the  Chufe,  it  ap-  c.uife,  as  the 
peared,  that  iome  Clothiers  did  make  Bates  'very  like  to  the  Patentee's  Fri-  ^^^"^^  ^^^' 
iadoes ;  And  that  they  ufed  to  make  them  before  the  Patentee's  Patent ;  for  g,.ou7ht  the 
which  Caule  they  were   neither  punillied  nor  reftrained  from   making  fiifl  ure 

their  Baies  like  to  his  Frifadoes.     Noy  182,   183.     liafUngs's  Cafe.  thcicof  fion 

beyond  Seas'; 
yet  neverthelefs,  when  the'V\''ardeps  of  theCompany  of  Cutlers  (lie  wed  before  fome  of  the  Council,  and  Ibme 
learned  in  the  Law,  that  they  ufcn  to  make  Kiiiii  s  before,  ikttgh  mt  with  fiuh  Hajts  ;  and  tliat  fuch  a  liyht 
Difference  or  Invention  fliould  be  no  Caufe  to  rettiain  theni ;  thereupon  he  could  never  have  Benefit  of 
tl-.i.'i  Patent,  although  he  laboured  very  greatly  therein.     Noy  11;.  Mathcy's  Cafe. 

The  Difference  is  between  a  Grant  to  particular  Perfons  fur  the  fole  U(e  of  a  Trade  hno'xn,  and  a  t^ew- 
imented  .I'rt,   See    VVms's    Rep.    iS;.     by   Lord  Ch.    J.    P.irker    Hill.  1 711.     in  tlie  Caft   of  ISIit- 

cel  V.  Reynolds Where  the  A'pc:' /Kif;;.';^^,  for  which   a  Putent  was  granted,  is   only   a  Varyi^s^   in 

the  Form  of  making  it,  and  not  in  Sublhnce,  the  Patent  was  adiudged  void  Arg.  2  Brownl.  114.  iNlich. 
9  Jac.  in  the  Cafeof  Crols  v.  Weftvvood,  Cites  the  Catc  of  Hallings  and  Johafon. 

10.  If  a  Man  has  brought  in  a  Neiv  Invention,  or  a  new.7rWtf,  within  Roll.  Rep. 
the  Kingdom,  /;/   Peril  of  his  Life,    and  Confamption   of   his  FJlate  or  ^p,''>".^'"^(.- 
Stock  &c.  Or  if  a  Man  has  jnade  a  ne-w  Difcovery   of  any  thing,   In  fuch  jpfwich  andl 
Cafes  the  King,  of  his  Grace  and  Favour,  in  l^ccompenlb  ot'  his  Colts  Shcrri-.ig. 
and  Travail,  may  grant  by  Charter  to  him,  That  he  only  lliall  ufefuch 

a  Trade,  or  Traiiick,  for  a  certain  Time;  Becauie  at  flrft  the  People 
of  the  Kingdom  are  ignorant,  or  have  not  the  Know  ledge  or  Skill  to  uie 
it;  But  when  that  Patent  is  expired,  the  King  cannot  make  a  new 
Grant  thereof ;  For  when  the  Trade  is  become  common,  and  others  ha;  e 
been  bound  Apprentices  in  the  fune  Trade,  there  is  no  Realon  that  i'urh 
fliould  be  forbidden  toufe  it.  Godb.  254.  pi.  351.  P.ilch.  12  Jac.  B.  R, 
in  the  Cale  of  Cloath workers  of  Ipfwich. 

11.  A  Patent  ioT:  Greenland  is  good,  bccaufe  it  was  found  at  great  Pe-_ 
ril  of  the  Lite  of  the  firft  Finder.  Arg.  Roll.  R.  5.  in  tlie  Cale  ot  the 
Taylors  ot  Ipfwich  v.  Sherring. 

12.  The  Patent  to  the  College  of  Phjficians^  that  noiic  praftifc  Phy lick, 
but  fuch  as  are  allowed  by  them,  had  not  been  good,  if  not  confirmed  by 
Act  of  Parliament.  Per  Croke  J.  and  agreed  to  by  Coke  Ch.  j.RoIl.  R.  5. 
in  the  Taylors  of  Ipfwich  Caie. 

13.  21  Jac  I.  cap.  i.  S.  r.  Ena£ls,  That  all  Afaiiopolies,  Commi/fions,'Y\^\^  t^,c^i^ 
Grants,  Licence,  Charters,  and  Letters  Patents,  granted  to  any  Perfons,  Bodies  forcibly  and 
Politick,  or  Corporate,  for  the  *  fole  Buying,  Celling,  Making,  Working,   or  vehemently 
U/ing  of  it  any  Thing  within  this  Realm,  or  of  any  other  Monopolies ,  or  Poiver,  P'^'^^c'^  ^^"'"^ 
or  Liberty,  to  difpenfe  ivith  any  others,  or  to  give  Licence  to  do,  tife,  or  oicrci'"  ^n„  af^Mo- 
any  thing  agatnfl  the  1'enor  of  any  Laiv  of  ^Statute,  or  to  give  any  Warrant  r\Q\io\\cf. ;  W^r 
for  fuch  Difpenfation  or  Licence ;  or  to  agree  or  conipound  ^oith  any  others  for  Monopo'.ie.<; 
any  Penalty  limited  by  any  Statute,  or  of  any  Grant  oj  the  Benefit  of  any  for-  '"T,™"?'^ 
feiture,  or  any  Sum  of  Money,  that  (ball  be  due  by  any  St  at  ate  before  Jitdg-  ^ithoutLaw 
uent  thereupon  had;  And  all  Proclamations^  Inhibittovs,  Rejirnints,  War-  but  never 

rants 


2 1 2  Prerogative  of  the  King. 


vvithout  rants  of  Affi fiance^  and  all  other  Matters  and  Things  whatjocver,  tending  to 
-'Tft'^'''s-     ^<^^^^  ^"f'('^^'"Si  i^retttng^  or  Furthering  the  fame^  Jhall be  void. 

cap.  Sj.- *ThK  Word  [^o/«]  is  to  be  applied  to  five  feveral  Things,  vi-z.  Buying,    Selling,   Making 

\N'orl<ing,  and  Ufiiig,  four  of  wliicii  are  ipcclLil,  and  tlie  laft,  vi?,.  (fole  uftng)  is  fo  geiicrjl,  as  no 
I^lono^'oly  can  be  r:iikii,  but  fli.ill  be  within  the  Reach  of  this  Statute  ;  and  yet  for  more  Surety  thcle 
^^  <)rds  (or  of  ony  odier  Monopolies)  are  added,  and  by  reaibn  of  thefe  Words,  [fole  ufing]  diver's  Pro- 
vi/ions  arcmailc  by  tliis  Acts  as  lierca'fter  Ihail  appear.     5  Inll.  1S2  cap.  85. 

i-  As  the  W(>i-d,M  before  arc  general,  fo  thefe' Words  (of  any  thing)  are  of  a  large  Extent,  and  this 
Word  cauitth  Ibme  Exceptions  hereafter  to  be  made,  whereof  we  ftall  fpeak  in  their  proper  Place. 
5  Lift.  ;Si.  cap.  Sj. 

S.  3.  ylll  Perfons  pall  le  d if  ailed  to  have  any  Moncpcly,    or  any  fuch 
Grants  as  aforefaid. 
*5;uc!i  aPri-      ^'-  S-  Letters  Patents  of  nezvAfantifaffures  heretofore  granted  lor  tvventy- 
vilcge  as  is    One  \  ears  or  under^  to  the  Inventors  thereof^  where  they  are  not  *  contrary 

iTw  n-'"ll  h  ^'^  ^'^'"'  "''  ^'''■^'  '''''■-^'  ^  /""'^"^'"'^^  ^°  ^^''  Commonwealth^  are  faved^  fo  alfo  are 
lubiiia"ndally'^-^''"'"'  ^^  have  been  heretofore  granted,  for  wore  than  twenty-one  I  ears,  good  for 
and  eilcn-     twenty-one  Tears  from  the  Date  of  their  Patent,  notwithflanding  this  Statute. 

tially  newly 

inverted ;  But  if  the  Suhflame  was  hi  EJfe  before,  and  a  new  JdcUtion  thereunto,  thougli  tliat  Addition  mal<c 
the  firmer  more  profitable,  yet  it  is  not  a  new  Manufatture  in  Law;  And  fo  it  was  relblved  in  the 
±.xchc<;uei--Chamber  PaCch.  15  Eliz.  ui  ©in'Ott'S  taff  for  a  Privilege  concerning  Preparing  and 
JNlelnng  of  the  Lead  Ore  ;  And  there  it  was  alfo  refolved,  Tliat  if  the  new  Manufacture  be  lubftantiallv 

rivented  according  to  Law,   yet  no  old  Manufacture  in  \Jk  can  be  prohibited.    :  Inll.  1S4. Hawk 

Pi  C  253.  cap.  -9   S.I  5,  16,  i;. 

t  It  may  be  mifchievous  to  the  State,  by  railing  of  Prices  of  Commodities  at  home.  In  every  fuch 
new  Manufatuire  that  delerves  a  Privilege,  there  muft  be  Urgem  Ne.ejjhas,  &=  Ezidens  Uiihtai, 
iSeitlxr  muft  it  be  to  the  Hurt  of  Trade,  nor  generally  Incomenient ;  There  wa^  a  new  Invention  found  rut 
lierctoforc,  that  Bonnets  and  Caps  might  be  thickened  in  a  4:  Fiiitine,  Mil!,  bj  i^-hich  means  more  mis:ht  Le 
thickened  in  one  Day,  than  by  tlje  Labours  of  So  .iJen,  who  got  their  Li-Jno;  by  it;  It  was  ordained,  That 
Bonnets  and  Caps  fhould  he  thickened  and  fulled  by  the  Strength  of  Men,  and  not  in  a  Fulling  Mill ; 
For  it  \vas  held  inconvenient  to  turn  to  many  labouring  Men  to  Idlenefs  ;  If  any  of  thefe  Qualities  fail^ 
the  Privilege-  is  declared  void  by  this  Act,  and  yet  this  Kit,  thouoji  thev  have  all  thefe  Properties', 
lets  i^lonopolies  in  no  better  Cafe  than  they  were  before  this  Act:,  3  Lift.  i'S4.—  ±[So  a  Mill  forjSawino- 
of  Timber  &c.  eredted  in  or  near  Southwark  was  ordered  to  be  demoiifhed  for  the  like  Reafon  many 
Years  hnce  ;  And  for  the  like  Reafon,  Printing  is  faid  to  have  been  prohibited  in  the  I'urkilli  Empire.] 

wSefor"^''  '^'^'  ^^"^^^^ P^"^^^  this  AB  extend  to  Grants  of  *  New  Mamif azures 
diel^rivi-  hereafter  to  be  made  to  the  Inventors  thereof  for  1^  Tears  or  under,  being 
Ifges  of  new  '^"^  Contrary  to  Law,  or  prejudicial  to  the  Commonwealth,  \  nor  to  Grants  here- 
Manulac-  tofore  Confirmed  by  A^  of  Parliament,  fo  long  as  fuch  Acis  continue  in  Force. 
tures,  either 
before  this  Act 
declared  to  be  £r< 

IT  tP  ■ 

enter  dui.j^-...  —  .^.  i...^  ^v>..»..v^....v«i(ii  vi  n^*r   ^iicnmia^i.^i^  ^i    ms   juvciinoii,  \.^ons  ana 

.uamages;  and  therefore  it  is  Reaibn,  that  he  fhould  have  a  Privilege  for  his  Reward  (a^d  for  the  Incou- 
rageme.;tof  others  in  the  like)  for  a  convenient  Time  ;  But  it  was  thought  that  the  Time  limited  by 
this  Act  w;^ere  too  long  for  the  private,  before  the  Commonwealth  fhould  be  Partaker  tiiereof,  and  Inch 
asferved  fuch  privileged  Perfons  by  the  Spaceof  fevenif.ir/  in  mah?ig  and  working  of  the  new' Manufac- 
ture (whicii  is  the  1  ime  limited  by  Law  of  Apprenticehood)  muft  be  Apprentices  or  Servants  ftill,  dur- 
ingthe  Re/idue  of  the  Privilege,  by  means  whereof  fuch  Numbers  of  Men  would  not  apply  them'fllves 
thereto,  as  fliould  be  requilite  for  the  Commonwealth,  after  the  Privilege  ended  ;  And  this  was  the 
true  Caufe,  wherefore  both  for  the  Time  part,  and  for  the  Time  to  come,  they  were  left  ct"  fuch 
Force,  as  they  were  before   the   making  of  this  Act.  5  Inft.  1S4. 

A  Grant  of  a  Monopoly  may  be  to  the  iirft  Inventor  by  21  Jac.  And  if  the  hiwntion  he  new  in  Ens;- 
land,  tho'  the  Thing  was  praHifed  before  beyond  Sea  ;  (For  theStatute  fpeaks  of  new  Manufactures  within 
this  Realm)  Sothat  if  it  be  new  here,  it  is  within  this  Statute  ;  Becaule  the  Ace  intended  to  incourage 
new  Devices  ufcful  to  the  Kingdom,  and  whether  learned  by  Travel  or  by  Study,  it  is  the  lame  Tiiin'w. 
2  Salk  447.   fays  it  was  agreed  by  Holt  and  Pollexfen,  in  the  Cafe  of  Edgebury  b.  Stepliens.  " 

t  This  was  added.  For  that  the  City  of  London,  and  other  Cites  and  Boroughs  Sec.  have  fomc  Pri- 
vileges for  buying.  Selling  &c.  by  Acts  of  Parliament,  For  Example,  the  Statute  of  1  &2  Ph.  &  Mar. 
giveth  a  Privilege  to  Cities,  Boroughs,  Towns  Corporate,  and  Market  Towns,  forthc  Sale  by  Retail 
of  certain  Wares  and  Merchandizes,  and  fbme  other  Acts  of  Parliament  in  the  like  Cafe  ;  All  which 
do  prove,  that  fuch  Privileges  could  not  be  granted  bv  Letters  Patents.  But  fpecially  this  Claufc  r.vs 
added  in  refpect  of  the  Generality  of  thefe  Words  (lole  ufing)  3  Inft.  1S4,  1S5. 

^y>^'^''°-  .  S-  9-  "This  Ati  (hall  not  be  prejudicial  to  London,  or  any  other  CorporatiOJt, 
only'thr      fo'>' »ny  Grant  made  them  concerning  their  Ciifiums ,     nor  any  Ccrmation, 

Cmn- 


Prerogative  of  the  King.  2 1 3 


Conipam'    or  Fcllozvfhip  of  any  Jrt,  T'rade.  or  Mifter)\  mr  to  any  Cowp.iny  Grants, 
or  iStjctctyct  Mcrcbants^  for  the  orderm^  of  anylrade.  I^t-ttcrs  Pa- 

tents, to  any  City  or  Town  Corporate  Sec.  Butalfo  the  Cuftoms  ufcd  witlii'i  the  fiinic,  arc  excepted  out 
of  this  Act,  which  ffcmcth  t<ibc  more  than  needed,  becaule  the  firll  Claule  of  the  Piirvicu  of"  tlie  Act 
doth  extend  but  to  Commifliono,  Grant<;,  Licenies,  Charters,  and  Letters  patents.  5  Inft.  185. 

S.  10.  Neither  foall  it  extend  to  any  Grant  of  Privilege  for  Printings  Digg-  ^^'s  to  the 
ging,  or  Making  or  Compounding  of  Salt  Petre^  uf  Giinpo-j:derj  or  Cajling,  this'hn-jnch 
or  making  of  Ordnance^  or  Shot  for  Ordnance^  nor  to  any  Grant  of  any  OJfce  excepted, 
no'i'U  inheiijg^  other  than  fucb  as  are  decried  by  the  King's  ProcLunatitn.  four  Thii-f;s 

S.  II.  Nor  to  any  Privihge  of  Digging,  or  Making  of  jilloui.  arcre^.uuMi. 

S.  12.  Nor  to  the  Ltlerties  of  Ne-ivcajUe  concerning  Sea  Coals ^  nor  to  Li-  ^^  ^^^  q^Hcv 
cenjuigof  TiTverns,  fo  as  the  King  r.  ceive  the  Benefit.  Tliiscxtcnd- 

S.  13.  Nor  to  the  Patent  granted  to  Sir  Robert  A^ansfield  for  making  (//cthonlyto 

Glafs.  nor  to  that  granted  to  fames  Maxivell  Efq;  for  Transport  at  ion  of  Calves-  h'wtulof  _ 
,:'/  "^  -^  ■''■■'  '■'  ■'  fices  for  di- 

S.  14.  Nor  that  of  Jbraham  Raker,   for  making  of  Smalt;  Nor  to  that  ,.  \^  v,isnc- 
cj  Edward  Lord  Dudley,  for  tnelting  of  Iron  Ewer,  and  making  the  fame  into  ccilary  to 
Qr/l  Works  or  Bars,  with  Sea  or  Pit  Coals.  ",'-'^;PV'aw- 

in  rcfpect  of  thcfe  Words  [folc  ufing]  2.  Offices  are  Duties,  Co  called,  to  put  the  Officer  in  mind  of  his 
Duty.  5.  That  which  is  void  and  againft  Law,  is  no  Duty,  unlels  it  be  Not  to  ule  them.  4  Such  as 
are  erected  uf^ainll:  Law  are  Monopolies  and  Oppreffions  of  the  People,  and  no  Offices.  5.  In  Acts  of 
Parliament,  Lawful  Offices  are  intended,  as  in  like  Cafes  has  been  often  adjudj^cd;  Therefore  unlaw- 
ful Offices  are  all  taken  aw  ay  by  this  Act,  and  lawful  Offices  remain  and  continue^  fecondly.  That  it  be 
an  Office  heretofore  erected  ;  By  tiiis  Act  the  Erection  of  all  new  (>fficcs-,  which  were  rot  erected 
before  ihis  Act:,  are  wholly  taken  away.  Tiiirdly,  That  it  be  now  in  Being,  and  put  in  EMecuiioa. 
Tho' the  Office  was  erected  before  this  Aft,  yet  if  it  were  not  in  Being,  and  put  in  Execution,  tlie 
19th  Day  of  February,  in  the  ii  II  Year  of  tlie  Reign  of  King  James  (at  which  Time  this  Parli.imtut 
begun)  it  is  clearly  taken  awav  by  this  Ad.  Fourthly,  That  u  be  iuch  an  t).ffi-e  as  hath  not  been  de- 
cried, that  is  (for  lb  is  tJie  Recor.dof  Parliament,  and  not  (decreed)  as  it  is  in  the  printed  Book)  by  any 
of  his  Majerty's  Pioclamations;  For  all  fuch  Offices -as  be  decried,  that  is,  either  forbidden  or  prohi- 
bited by  any  of  his  Majefty's  Proclamations,  or  wiiere  the  Party  grieved  is  left  to  his  Remedy  at  the 
Common  Law  by  any  Proclamation,  they  be  alio  decried  ;  for  being  contrary  to  the  Laws  of  thi.^ 
Realm,  as  it  is  declared  and  enacted  bv  this  Act,  they  are  alfo  decried  with  a  Witnels,  and  can  rever 
be  granted  hereafter  ;  The  fifth  Provifo,  concerning' the  Making  of  *  Allom,  or  Allom  Mines,  needed 
not;  for  they  belong  to  the  Subject  in  whoie  Ground  loever  the  Ore  is  ;  And  therefore  any  Privilege 
thereof  cannot  be  granted,  but  in  the  King's  own  Ground  The  fixth  Provifo  concerns  the  Hofimcn 
'of  New-caftle  &c.  ThisClaufe  was  inferted  in  rcfpect  of  thefe  Words  (fole  ufing)  The  rell  ot  ths 
Provifoes  concern  particular  Perfons,  and  do  exempt  and  e\-cept  certain  fuppofed  Privileges  out  of  the 
■Purvieu  and  Penalty  of  the  Law,  but  leaveth  them  of  like  Force  and  Effect,  as  they  were  before  the 
making  of  it ;  but  it  is  to  be  obferved,  that  all  the  Provifoes,  after  the  fixth,  extend  only  to  the  lup- 
pofed  Privileges  therein  particularly  mentioned,  already  granted,  and  r.ot  to  any  to  be  granted  hereafter. 
•5  Inft.  1S5. ♦  Hawk.  PI.  C.  254.  cap.  79.  S.  23. 

14.  In  Trefpafsforfeilmg  a  Ship  &c.  whereby  the  Plaintiff  loft  his 
Voyage,  die  Defendant  jultified  under  the  Canary  Patent  granted  by  the 
King  to  fuch  Perfons  to  hsvc  the  fole  'Trade;  P]ut  the  Plaintiff  had  Judg- 
nienti  For  the  King  cannot  grant  that  the  Subjects  Goods  fliall  be  lor- 
feited  for  doing  a  Thing  prohibited  by  Patent.  Sid.  44.1.  Plill.  21,  &  22 
Car.  2.  Horn  v.  Ivy. 

.     15.  It  has  been  often  rcfolved,  That  Cuflom  may  create  a  Monopoly,  S.  C  cited 
.as  the  Cafe  in  the  Regilter  is,  that  none  ihould  exercife  the  Trade  of  a  7pj|.i.^'^' 
Dyer  in  Rippon  without  the  Archbilhop  of  York's  Licence.     V^ent.  196.  "v\'ms',s^  Rep. 
Pafch  24  Car.  2.  in  the  Cafe  oi  Broadnox.  1S4  hi  Cafe 

ofMitchel 

V  Reynolds. S  C.  cited  i  Le.  14;.  199.  in  Cafe  of  Sir  George  Farmer  v.  Brook. S.   C.  cit:i 

Ow.  67    111  Cafe  of  Sir  George  F.u-mer  v.  Brook. 

•     16.  The  Eaft-Tndia  Company  brought  a  Bill  in  Chancery,  fetting  S.  P.  h  Qde 
•forth  their  Letters  Patents,  and'  the  great  Charges  they,  were  at  in  male-  ||.  ^  co,,"" 
ing  Leagues  with  Princes,   and  building  Fores,  and  maintaining  Forces  p,„y  ^  gin. 
in  India  ;   and  the  Defendants   having   traded  thither,  the  Plaintilfs  dys.   Vern. 
prayed  a  Difco\ery  what  the  Detendants  had  traded  lor,  and  that  they  '^°-  H'"' , 
might  be  compel  I'd  to  bear  a  proportionable  Part  of  the  laid  Charge.  .^^  North 
■■'*The  Delendants  pleaded,  an(\veied  and  deniurr'd:  They  pleaded //w.^  took  Notice 
they -wen  k'ree  Merchants,   and  fet  forth  the  Statute  of   zi  Jac.   againllof  xi  ubjec- 

H  h  h  .rcrtriiinina; 


2  1/).  Prerogative  of  the  King. 


tion  th,it  rcllraining  Trade,  and  9  E.  3.  that  Machants  might  trade  any  -jjhera  net  in 
this  l\itent  fjiraitj  ivtth  the  Ki>jg;  and  avirr'd  the  Indians  ivcn  not  in  kmnity.  Lord 
^op" ^InT"  ^-  ^'"^^'^  heldjthat  this  whs  only  a  Chaitcr  tbr  KeguLuing  Trade,  and 
l".iiti  tliat  if  it  that  there  had  been  many  Patents  for  that  Purpolc  luua  alter  the  making 
be  now  re-    ot  the  Statute  of  21  Jac.  which  had  never  been  thought  illegal,  norcom- 


nopoly,  it  is 

hard  to  fiiy  when  it  becams  fuch ;  and  cominred  it  to  the  Nufance  of  the  Buildings  in  London  ;  there 
no  r,ne  can  fay  when  it  became  fo,  or  which  particular  Houfe  firft  made  it  fuch.  And  faid  tliat  it  is  to 
be  obfervcd,  that  the  Words  of  the  Statute  of  Monopolies  are,  That  there  fhall  be  no  Monopoly  with- 
in this  Kingdom  ;  and  laid  that  what  Influence  that  might  have  on  this  Calc,  was  worthy  Coufidcration, 

17.  In  a  fpecial  Aftion  on  the  Cafe  the  Plaintiffs  declared,  that  in 
the  Reign  of  H.  4.  there  was  a  Society  of  Merchants- Adventurers  in 
England,  and  that  afterwards  Queen  Elizabeth  did  incorporate  them,  by 
Name  ot  Ihc  Governor  and  Company  of  the  Aierchants  -4dventiirers  &c. 
with  Pri'vilcge  to  trade  to  Holland^  Zealand,  Brabant,  Flanders  &c.  pro- 
hibiting all  others  not  free  of  that  Company  &c.  and  that  the  Defendant,' 
not  being  Iree  of  the  faid  Company,  did  trade  there  without  their  Au- 
thority, and  imported  Goods  irom  thence  Ad  damnum  &c.  The  Defen- 
dant pleaded  the  Statute  oj' Ed.  3.  that  the  Seas  Hull  be  open  to  all  Mer- 
chants to  pals  with  their  Merchandize  whether  they  pieafej  and  upon 
Demurrer  to  the  Plea,  the  Queltion  was,  Whether  the  King  had  a  Pre- 
rogative to  reitrain  his  Subjects  trom  trading  to  particular  Places  ?  See 
the  Arguments  on  both  Sides  ;  but  ic  does  not  appear  that  any  Judgment 
or  Opinion  of  the  Court  was  given.  3  Mod.  126.  Trin.  2  Jac.  2.  B.  R. 
The  Company  of  Merchants-Adventurers  v.  Rebow. 

18.  In  Trover  of  a  Ship,  the  Jury  found.  That  Cha.  2.  granted  to 
the  African  Company  all  the  Regions,  Countries  Sc  from  Sally  incluiive 
to  Cape  of  Good  Hope  incluiive,  -with  all  Ijlands  near  adjotuifig  to  thoft 
Coajfs  ^c.  and  all  Ports  &c.  to  hold  to  them  and  their  Succeflbrs  for 
jooo  Tears,  with  Licence  for  them  and  no  others,  to  fend  Ships  £j'f.  and  to 
have  all  Mines  of  Gold  and  Silver  there  ^c.  and  the  iiitire  and  only  Liberty 
to  trade  there,  any  Law  or  Statute  to  the  contrary  notwithitanding,  and 
prohibiting  any  to  trade  there,  unlefs  by  Licence  firft  had,  under  Pain  of 
Imprifonment  during  Pleafure,  and  the  Forfeiture  of  Ships  and  Gooda 
&c.  with  Power  tofearch  and  feize  &c.  one  Moiety  to  the  King,  and 
the  other  to  the  Company  •  and  erefted  a  Court  of  Judicature  for  Hear- 
ing and  Determining  all  Cafes  of  Forfeiture  and  Seifure  for  trading  thi- 
ther. The  Company  by  Virtue  of  this  Grant  authoris'd  certain  Perlbns 
to  feize  the  Ships  &c.  of  fuch  as  lliould  trade  in  an  Infidel  Country 
within  the  Limits  of  that  Company.  Accordingly  the  Defendants 
fciz'd  the  Plaintift^s  Ship  and  Goods,  and  at  the  Deiendant^s  Inftance 
there  was  a  Procefs  in  the  Admiralty  againil  the  faid  Ship;  and  none 
appearing  for  her  there,  Ihe  was  condemned ;  but  whether  the  Defen- 
dant be  guilty,  the  Jury  fay  they  know  not,  Et  fi  &c.  pro  Quer.  Da- 
mages to  4300  1.  and  Colls  to  2  1.  3  s.  4d.  Et  li  pro  Defend  &c.  This 
fpecial  Verdift  was  obtained  at  the  Importunity  of  their  Majefty's  Coun- 
fel  tor  the  Defendant.  It  was  adjudged  for  the  Plaintitf  by  the  whole 
Court.  Show.  135  to  145.  Hill,  i  W.  &  M,  Cwhere  is  a  long  Argu- 
ment prepared  by  the  Reporter)  Nightingale  v.  Bridges. 

19.  zJK  S  M.  S.2..  cap.  9.  Enads  that  Letters  Patents  for  the  fok 
Making  of  Brandy  or  Spirits  from  Malted  Corn  ^c.  as  a  new  Invention^  are 
(ieelarcd  void. 


(t,e.2.) 


Prerogative  of  the  King.  215 


(E.  e.   z)     Monopolies.   Tried  where,   and  Ho^v. 

I,     21  J.'Tc.    1.  TJ'Niifits,  that  (ill  Commij/ic/iSj  Gi-ants^  Licences,  Char- Tins.  Aft 
cap. 7,  ^.2..    P  J  tcrs.  Letters  Pat c/jts.^  Proclamations^  Inhibittofis,  Re-^^-^'-'^^^?,'^--' 
jiraints,  IVarraiits  vf  uij/ijlance,  and  ether  Matters  and  Things  tending  to  ^.^^  ^' 
a  Monopoly,  jhall  he  examined,  heard,  tried  and  determined  iy,  and  avcording  ^[o^op'ol^c3 
to  the  Coiiinwn  Lans  of  the  Realm,  and  not  otherivife,  &c.  to  bt; 

void  by  tlie 
Common  Law,  hath  provided  by  this  Claufe,  that  they  fhall  be  Examined,  Heard,  Tried  and  Deter- 
mined in  the  Courts  of  the  Common  Law,  accordini^  to  tiie  Comiiion  Law,  atid  ♦  not  at  the  Council- 
'  Table,  Star-Chambcr,  Cluncery,  Exchequer-Chamber,  or  any  other  Court  of  like  Nature,  but  only 
according  to  the  Common  Laws  of  this  Realm,  with  Words  Negative,  (and  not  otherv.iie  ;  )  for  fuch 
Boldnefs  the  Monopolifts  took,  that  often  at  the  C^ouncil-Table,  Star  Ciiamber,  Chancery,  and  Ex- 
chequer Chamber,  Petitions,  Informations  and  Bills  were  prefcrr'd  in  the  Star-Charab;r  Sec.  pretending 
a  Contcm.pt  for  not  obeying  the  Commandments  and  Claufcsof  the  iaid  Grants  ot  Monopolies,  andot  tlie 
Proclamaiions  &ic.  concerning;  the  fame;  for  the  preventing  of  which  Mifchicfthis  Branch  was  added. 
5  Intt.  iSi.  1S5.  cap.  S).— *Hawk.  PLC.  232.  cap.  79.  S.  ii; 


(E.  e.  3)     Judgment.     And  recovered,  what. 


HJjoin  or  other  Delay  jhall  he  alk'jued,  nor  any  move  than  one  Imparlance.  enacted,  ill, 

Remedy  is 
given  to  the  Party  grieved  at  the  Common  Law  by  Aftion  or  Actions  to  be  grounded  upon  this  Statute. 
2dly.  This  Remedy  may  be  had  *  in  the  Court  ot  the  King's  Bencli,  Common  Pka<  in.d  Exchequer,  of 
any  of  them  at  the  Elettion  of  the  Partv  grieved.  5dly.  The  Party  grieved  fliall  recover  treble  Da- 
mages and  double  Cods.  4thly.  No  Effiign,  Protection,  Wager  of  Law,  Aid  Prayer,  Privilege,  In- 
junction, or  Order  of  Reftraint,  to  be  allowed  in  any  fuch  Action.  By  [.'Vid  Prayer]  is  intended  as  well 
the  Writ  De  Domino  Rcge  inconfulto,  as  the  ufual  Form  of  Aid  Prayer  ;  for  both  are  to  one  End,  and 
(Order  of  Reftraint)  was  added  for  the  Council- Table,  Star-Chamber,  Chancery,  Exchequer-Cham-, 
ber,  and  the  like.     3  Inft.  183.  cap.  85. *  Hawk.  PI.  C.  232.  cap  79   S.15. 

iS".  4.  If  any  Perfon  or  Perfons  floall,  after  Notice  given  ^c.  caufe  or  pro-  ThisCIaufa 
cure  any  fuch  Aclion  to  he  ftayed  or  delayed  before  Jitd^jncnt,  by  Colour  or '^^^^^^^  ^° 
Means  of  any  Order,  Warrant,  Po^juer,  or  Authority,  fave  only  of  the  Court  Q^m,^iP'" 
•jshiretiifiuh  AS  ion  pall  he  brought  and  depending,  the  Perfon  or  Perfons  fo  Star-Chain- 
o_ff ending  pall  incur  the  Danger  of  Premtinire  isc.  ber.  Chan- 

cery, Ex- 
chequer-Chamber, and  the  like  ;  and  likewife  to  thofe  tint  fhall  procure  any  Warrant  Sec.  from  the 
King  &c.  And  fo  it  was  refolved  by  a  Committee  of  both  Houfes  before  this  Bill  p^ilVd  ;  but  it  extcndetli 
not  to  the  judges  of  the  Court  before  whom  any  fuch  Action  lliall  be  brought ;  For  before  Judgments, 
Days  mull  be  given  by  Orders  of  Court  Sec.     3  Inft.  1S3.  cap  85. 

S.  4.   Or  ajter  Judment  had  upon  fuch  A cl  ion  pall  caufe  or  procure  E.se-  ThisClaufc 
cutiott  of,  or  upon  any  fuch  Judgment  to  be  Jlayed  by  Colour  or  Means  of  any  ^^ff^^'l-^ffff 
Order,  Warrant,  Pozver  or  Autho)-ity,fave  only  by  Writ  of  Error,  or  Attaint,  the  former, 
the  Perfon  or  Perfons  fo  off'endingpall  incur  the  Danger  of  Premunire  bV.         being  the 

fifth  Claufe, 
for  this  extendc^h  alfo  to  the  Judges  of  the  Court  where  the  Aftion  is  brought  or  depending,  ifany  Stay 
or  Delay  be  uted  by  them  after  Judgment ;  and  fo  it  was  refolved  as  is  aforelaid.  3  Inll.  1S3.  cap.  S^-, 
• Hawk.  Pl.t'..  232.  cap.  79.  S.  ij. 

(F.  e.) 


2 1 6  Prerogative  of  the  Kin^;'. 


(F.  e. )     Ifjtrudi:)-.     hi  wlvit  Cafes  a  Man  iliall  he  Ja/d  an 

Intruder. 

i,'%'KJt^^l3iG  tIjC  Determination  of  the  Lcaic  appears  of  Record, 

V'  V  tl)c  Kc\)crficm  bctmj  in  tljc  tKm,  tt)c  Leiiee  iijnu  te  an  %iv 

trUllCr-by  continuing  ot  tiic    Foiieliion  aker.     $^»  32*  33*  ^U  15*  K* 

pcr?0antocoti. 

S.P.  Haid.2v      2.  :if  a  ilEliCe  for  l>Car«3  Cf  tIjC  JKinn;  holds  over  his  Term,  !}C  (0not 

.Mg.  cites  5  5  ^  tenant  at  ©uffctauce,  ijut  an  SntriiDcr.  ?©♦  32.  33-  €U  15*  jR* 
r'  "^  n  tss  l^cf  93aniuooii.  agrccD. 

S    7h  b  ^'        3»  ^'^'  f'J'^  ^"^S  ^^■•''"^■^  f'^'^  liCai'0  rendering  Rent  at  the  Exchequer,  or 

"i  S  C-tOl3I£j  ECCCllJCL',  nm^  COnDitlOn  for  Nonpayment,   that  his   Eltate 

Mo.  295.      Ihalibe  \oid,  ailtl  tiJC  ICflCC  doth  not  pay  tl)Z  ECHt  At  t\}t  DaV  bD 

^  C.  iuljici)  ijlS  (gfiatC  15  noils,  Jf  1)C  continues  his  Foiieliion  Of  tljt  JianB 

attcr,  vet  Ijc  is  not  ani'  JntruDcr  till  office  tound,  but  is  onlp  Baiiift' 

de  ion  Tort,  llCCaufC  It  5OC0  HOt  appCaC  Of  RCCOtD  tljat  l)i£>  ^ffatC  10 

netcrmincn  i  for  Ijc  nugljt  pap  tlje  Kent  in  pais  to  tljc  ri)anti0  of  tljc 

EeceiVier.  C?9. 32. 33-  €!♦  'B^E*  l?ct^aniuoo5,in  g)ti-  AJojkFmcb'^ 
Cafe* 

4.  But  if  tlje  JKing  leafe  for  2iCar0  upon  Condition  that  if;  the  LeiTee 
does  not  i'urrender,  the  Leafe  ihall  be  void,  3if  IjCdoes  not  lurrender  at 

tOc  '2Ciine  bi)  \\A)\t\)  W  Lfafe  is  noiu,  13c  fljaU  be  an  fntruncc  before 
Office  ioundrbecanfc  tljc  Jforftiturc  appears  of  EccorD.  ^*  32. 33. 
€1. 15*  K*  per  f^amuoon* 

5,  Where  the  King  grants  the  Cajiody  of  Land  and  Heir  of  a  Ward,  and 
a  Stranger  enters.  This  is  an  Intrulion  upon  the  Poifeirion  of  the  King  j 
lor  he  remains  in  Poirelfion,  and  fljall  make  Li\  ery  at  iull  Age.  Contra 
of  Entry  upon  Tenant  Jor  Term  of  Life,  the  Revtrjion  to  the  King  ;  for  the 
one  has  Franktenetnent,  and  may  have  Aliife,  and  the  other  not,  and  has 
only  Chattle.     Br.  Intrulion,  pi.  12.  cites  4  H.  6.  11.  Per  Cur. 

Br.  Office  6.  W'here  Tenant  of  the  King  dies,   his  Heir  viay  enter  till  Office  he 

devant  &c.  found  i  for  he  cannot  intrude  before  Office,  which  finds  the  Dying  feifed  of 
P'- ^5-  cites  j.|^g  Anceftor  ;  for  the  King  has  no  Poffieffion  before  Office,  which  finds  his 
S  Q  ''  ^''  Title^  but  after  Office  he  cannot  enter  but  by  Livery  of  the  King  ;  and 
But  where  tipon  Office  found  for  the  King  of  the  Dying  feifed  of  the  Anceilor,  there 
tlie  tenant  of  t}oe  Heir  fhall  anfwer  the  Profits  by  him  taken  before ;  for  the  Office  ihall 
'^r  ^'"^- 1  have  Relation  to  the  Death  for  the  Profits,  but  he  fliall  not  be  an  Intruder 
lrfcwe"here' but  by  Entry  after  OiBce.  Br.  Intrulion,  pi.  18.  cites  i  H.  7.  18.  and 
ifofficebe    'M.  26  H.  8.  accordingly. 

found   7 

7~e.irs  after,  he  pal!  mi  render  the  Profits  hut  from  the  'time  of  the  Office  found;  note  the  Diverlity,  but 
fiich  Entry  by  Purchife  is  not  called  an  Intnifton  but  a  'frefpafs;  and  fo  are  the  Words  of  the  Pardon 
thereof,  That  we  pardon  the  Trefpafs  aforefaid.     Br.  Intrufion,  pi.  19.  cites  33  H.  S. 

7.  If  the  King^  having  no  7'itle  by  Matter  of  Record  or  otherwife,  enters 
upon  me,  and  puts  me  out,  there,  if  I  enter  again,  my  Entry  is  lawful, 
and  noIntrulioHi  fo  tho'  there  be  a  Record,  iftlie  Record  gives  him 
no  Title.     Fin.  Law  8vo.   201. 

8.  The  Queen  by  Letters  Patents  made  a  Leafe  of  the  Parfonagc  of  D. 
for  21  Years  ;  An  Information  of  Intrulion  does  not  lie  for  detaining  the 
'tithes  by  a  Parifliioner,  unlefs  they  wt^t  fevered  from  the  9  Parts  ;  Per 
Manwood  Ch.  B.    And  per  Shute  J.  The  Reaibn  is,  becaufe  the  Queen 

,  has  no  Interert  to  fue  for  the  Tithes  during  the  Years ;  but  the  Leiiee 
may  fue  in  the  Spiritual  Court,  or  in  the  Court  of  Pleas  by  Qiao  Minus, 
or,  as  he  laid,  by  Englilli  Bill.  But  if  the  Tithes  are  levered,  and  a 
Stranger  takes  them,  the  Queen  may  have  Information,  but  not  an  Af- 
iize ;  for  Ihe  is  not  out  of  Pollelfion  of  her  Franktenenient,  and  therefore 

'tis 


Prerogative  of  the  King.  217 

tis  Intrulion  to  her,  and  Trefpafs  to  the  Party.  And  as  a  common  Per- 
i'on  Lellbr  may  have  Allife  on  an  Oiiller  made  to  the  Tenant  for  Vears, 
i'o  may  the  Queen  have  Intrulion.  Quod  Curia  concellit.  Savil.  68.  pi. 
142.  Falch.  25  Vl'vL.  Anon. 

9.  The  King  being  leifed  of  the  Manor  of  Beverly  in  the  County  of  lb.  Maij^.  S. 
Y<  ik,  in  Fee,  in  Jure  Coronae,  a  Strjiigcr  eredcd  a  Shop  in  a  vacant  Piece  ^„.  and_'-'y% 
of  Land  of  tr:  Man-r^  and  took  the  Profit  thereof 'cc.v^/'.v/? /j/rj/;;^  ^/y  j..,j^[„  1^;"^ " 
'Rent  to  the  Qaeen  tor  the  Shop.  The  Qiiecn  granted  the  Manor  in  Fee  (^uxi-ics  ;S[. 
to  the  E.  of  Leiceller,  and  he  never  enter'd  into  the  Shop  nor  took  any  %-msofOpU 
Rent  thereof  The  Occupier  of  the  Shop  died  in  Pcfftjion  of  it,  and  his  nion,tli-'t  Hie 
Sni  enter d.  It  feem'd  to  Whiddon,  Saunders,  Dyer,  and  Catlin,  tlut  ellfijf"  ij^^^ 
this  was  no  Dcfcent  i  but  Manvvood  and  \Vray,  Serjeants,  e  contra.  D.  not  g.iin'd  ^ 
266.  b.  pi.  xo.  Mich.  9  &  10  Eliz.  '  any  Elhtc 

in  PolVcirion. 

Ibid.  cv.K  Hill.  :;i  Eli/..  B.  R.  15iirj'  v.  GOODrndn,  that  where  A.  intruded  upon  the  Kiti",  who 

granted  it  over  to  B.  and  A  continued  I'olleffion,  and  died  feired  ;  the  bell  Opinion  wa.s,  that  tlus  does 
not  take  away  the  Entry  of  B  I'or  the  Court  gave  Day  to  C;oke,  who  avgu'd  that  the  Entry  was  toll'd, 
to  ftew  Caufe  why  Judgment  fliould  not  be  given  againlt  hijn. 

10.  It  was  found  by  Office,  that  one  F.  'Tenant  of  the  ^leen  in  Ca- 
pite,  died  fcijed  of  the  Manor  of  D.  in  the  County  of  Eflex  i  R.  F.  his 
Heir.,  being  of  full  Age,  tender  d  his  Livery  ;  hvit  before  it  ivas  [tied  out  he 
made  Ftojfnicni  in  Fee,  by  Deed  inroll'd,  toJ.B.  and  others,  totheUfe 
of  himfelf  for  Life,  and  after  of  his  Feme  for  Life,  with  other  Limita- 
tion? o^  er.  It  was  mov'd,  If  any  Fine  ihould  be  paid,  inafmuch  as  the 
Feoliment  feem'd  to  be  void.  Manwood  fiid.  It  feem'd  to  him,  that  a 
Fine  Ihould  be  paid,  and  that  the  FeoHinent  is  good.  But  Shute,  Con- 
tra ;  For  here  he  has  intermeddled  with  the  Land  before  his  Li\ery 
fued,  which  is  an  Intrulion.  Butotherwife  it  is  of  Bargain  and  Sale  by 
Deed  indented  and  inroll'd,  or  Fine  levid,  which  is  a  Barr  to  the  Party 
and  his  Heirs.  Manwood  and  Clinch  faid,  There  will  be  a  Diverlity 
between  Feorirnent  and  Fine  and  Deed  inroll'd.  Qucere.  Sav.  32.  pi.  77. 
Mich.  24  &  25  Eliz.  Friuks's  Cai'e. 

11.  If  one  intrudes  upon  the  PoJJeJ/tGn  of  the  Y^'m^^and  another  enters  Godb  1^9. 

upon  rhelntrnder,hc  ilian't  ha\'e  Trejpafs  tor  that  Entry  i  tor  Trefpais  can't  fJ-'/Ji  ^-9' 

be  brou2;ht  but  by  one  that  has  Polielfion.     But  in  {uch  Cafe  he  has  no  Leje^eua-Jed 


itr.i»7c 


PofeJ/ioiii  for  every  Intruder  Jhall  anfiL'tr  to  the  King  for  his  own  Time,  and  ly  aS: 
every  Intrulion  fuppofes  the  Pollelhon  to  be  in  the  King.  Per  omnesjutt.  yet,tho'he  i 
paster  Periani.     And  Rhodes  Jurtice  faid,  and   cited    19   E.  4.    to   be  "^"  °^^"'^';' 
that  he  >.  an't  lay  in  an  AiStion  of  Trefpafs^  .Ghiare  Clauluni  fuuni  fregit.  an-]^,  ov^^^ 
4Le.  i84.  pi.  234.  Mich.  30  Eliz..  C.  B.  Anon.  ids^Term. 

For  the  Fe- 
verfion  being  in  the  Queen,  he  cannot  be  out  of  PolTeffion  but  at  his  Pleafure.  Cro.  E.  2;  5.  VN'inrate 
V.  Mark. 


(F.  e.  2)  Statutes  relating  to  Intrufion  on  the  King. 

1.  17  £.  2.  13.  Prerog.  Reg.   When  the  King's  Tenant  in  Chief  dies,  and  Fine  le-jied  by 
his  Heir  enters  into  the  Land  before  he  hath  done  Homage  to,  or  received  Seijin  '^^  ^/.'>'  ^} 
of  the  King,  he jhail  thereby  gain  no  Freehold;  and  if  he  dies  feifed  during  l^'^^,^^"^^,,,^ 
that  Time,  his  Wije  ffjall  not  be  endozued  thtreof  ^  Js  it  fe/l  out  in  the  Caj'e  oj' !j^,^]„t,-,Sed 
Manfel  the  Alarfhall.  upon  the 

PolVeiTion  of 
the  King, ;/  void  ;  for  the  Statute  is,  that  he  fliall  thereby  gain  no  Freehold  &c.  But  if  he  levy  a  Fine 
iL'iihoiit  intruding,  this  is  good  Per  Hufl'ey  and  the  Chief  Uaron  ;  for  the  Franktenement  is  in  iym.  Br. 
Fines,  pi.  86.  cites  1  H.  7    5. 

I  i  I  2.  21  Jac. 


2 1 8  Prerogative  of  the  King; 


b- 


a. 


[B;foi-e  thi,      2.  21  Jac.  T.  1 4.  JF/^tv/  the  King  or  any  clahmng  under  his  7'itle,  Jhall 

Act]  The  y^  g,i^  i^i  PoJ[c[/ion  or  not  have  received  the  Projits  of  the  Land  &c.  Withtit 
Coiirfeofthe  ^^^  Space  of  20  rears  before  any  htforiuatioii  of  Intrufton  be  brought  to  recover 
Exclicquii-  the  fame  j  ///  this  Cafe,  the  Defendant  [hall  plead  the  general  Iffae  if  he 
has  b;;en, that  f/;//?^  fit y  and fhall  fiot  be  preffed  to  plead  fpecially,  and Jhall  alfo  retain  the 
if  in  an  In-  ^  P.fjcjjion  thereof  'till  the  '/itle  be  found  for  the  King. 

Lunafio'nin-      Hhcre  an  Infer  mat  ion  of  Intrujion  uiay  fitly  be  brought  on  the  King's  Be- 
ta Lands  or    half,  no  Scire  facias  fhall  ifjue,  whereupon  the  Subjeii  fhall  be  forced  to  fpe- 
Tenemeuts,    cidl  P lending^  and  be  deprived  of  the  Grace  intended  by  this  Act. 
the  Defend. 

ant  pleads  Not  Guilty,  he  fhall  lofe  the  PofTeflTion ;  and  it  is  faid,  that  the  Reafbn  of  this  Courfe  is, 
FiilK  For  that  icguiarly  the  King's  Title  appeaieth  of  the  Record,  and  therefore  the  Dcferdant  may 
take  Knowledge  thereof;  and  the  rather,  for  that  in  every  Information  uf  Imrufion  it  is  (pecihcd  of 
■wiiofe  PoflelTion  the  Lands  &c.  were  ;  but  if  the  Defendant  pleads  Not  Guilty,  the  King's  Learned 
Counfel  canno:  know  the  Defendant's  Title,  to  provide  to  anfwer  the  fame,  as  the  Defendant  m:<y  do  to 
the  King'sTitle.  4  Inft.  1 16.  cites  D  7  £1.  238— D.  2;8.  b.  pi.  ;-.  Pafch.  :  £1.  f-ir  i^.  Xn^i)  v.  ii^UDfOll 
was  upon  the  pleading  a  Qiie  Eftate  ot  a  Term,  which  was  alledg'd  to  be  infulHcicnt  it  tlie  Attorney- 
General  had  dimurr'd  upon  it ;  but  he  havirg  travers'd  the  Original  Leale,  ard  that  being  found  ag.iinft 
the  (>ucen,  it  is  too  late  now  to  take  Advanuge  thereof;  for  wliich  Reafon  J  udgment  was  given  agaiull 
the  Cipeen.     JSlich.  -  &  8  Eliz.. 


(F.  e.  3)       Intrufion.       Proceedings,    Pleadings, 
Judgment    &c. 

keilw  201  ^'  A  -^  Information  of  Intrufion  lies  for  the  King  in  the  Exchequer  uport 
a.  b.  pi.  16.  jTm.  Office  tound,  alt  ho'  the  Record  be  not  there  but  in  Chancery,  or 
Mich.  iiH.  with  the  EfcheatOFj  or  their  Executors.  It  is  fufficient,  that  there  was 
8.  S.  Ci  fm;h  an  Office  lound.  By  the  Judges  and  the  Counfel  of  the  King.  Jenk. 
199.  pi.  14. 

2.  Information  of  Intrulion  was  ioxlnuuiMnginto a  certain  Portion  ofTythes 
of  the  Reifory  of  D.  in  the  County  of  Lancaiter.  The  Defendant  pleaded 
Non  intruftt  j  whereupon  a  Conunifjion  was  pray\l  to  examine  WitneJJes  ivho 
are  not  able  to  come  to  the  Court.  iJut  Manwood  denied  it  ;  for  this  In- 
formation is  to  prove  a  Title  for  the  Qeeen,  and  is  in  the  Nature  of  an 
Inquilition,  and  is  not  to  try  the  Right  ;  but  had  it  been  to  trv  the 
Title  of  the  Defendant  upon  a  Bill  whereto  the  Defendant  had  anfwered, 
and  that  they  had  proceeded  to  Ilfue,  then  he  might  either  join  in  Coit>- 
milfion  or  haveCommilfion  alone  j  and  thatfo  it  was  in  aCaleof  the^fltl 
Of  Jl^OVtljillUptOn,  in  Trinity  Term,  where  certain  Commifiioners  had 
certitied  a  Ciiautry  with  certain  Tenements  ;  to  which  the  Delendant 
anfwer'd,  that  it  was  a  Chapel  of  Eafe,  and  pray'd  a  Commilfion  to 
prove  it,  and  it  was  denied.  Sav.  4.  pi.  10.  Pafch.  22  Eliz,  Norris  v. 
Butler. 

3.  Information  of  Intrufion  is  exhibited  by  Name  of  Outground,  New 
Midd.  Marfr,  alias  Marfb.     The  Defendant  pleads  Not  Guilty, 

and  gives  in  Evidence  the  Letters  Patents  of  Stebun heath  Marfh.  The  Jury 
nor  the  Court  is  not  to  intend  this  to  be  the  Marlli  contained  in  the  In- 
formation, but  the  Defendant  ought  to  have  pleaded  the  Letters  Patents  Ver- 
latim,  and  aver  that  the  Marfh  vocat.  Stebunheath  Marfh  contain'd  in  the 
Letters  Patents,  and  the  Marp  contained  in  the  Information  are  One  and 
the  fame  &c.  And  if  they  will  take  Adv^antage  of  its  being  reputed  or 
known  to  be  fo,  they  fliall  aid  themfelves  by  pleading  the  Patent,  and 
faying,  that  they  were  reputed  iftme  out  of  Mind  &c.  and  not  fay,  that  at 
the  Day  of  the  Date  of  the  Letters  Patents  they  were  fo  reputed ;  or  other- 
wife,  to  fhew  how  once  they  were  Parcel,  and  how  they  were  fever'd,  and 
how  they  came  to  the  King  again  ;  as  it  was  in  the  Cafe  oi  the  (Satl  Of 
JLnCCftCt.  But  to  fay,  that  the  Jury  or  the  Court  ihall  feek  the  reputed 
Thing,  is  not  Reafon.  Per  Manwoood,  Ch.  B.  Sav.  4S.  Pafch.  2$ 
Eliz.  Anon. 

A,  General 


Prerogativ  e  of  the  King.  2 1 9 

4.  General  Ifijorjnatiofis  for  Incrulion  in  certis  Tcrris  ct  'TeHcnicntis,  are  as 
go(xl  asTreipais  Qaarc  Claufum  I'rcgit,  which  is  uled  in  Trefpafs  ac 
Common  Law,  which  does  not  expnfs  a  certain  ^laiititv  of  Acres  ;  and 
cited  [lie  Cafe  ot"  {13UICS  in  J'lowden's  Commentaries,  which  is  Quod 
cum  Domina  Rcgina  luic  feilita  dc  certis  Terrisj  \allis  &;c.  Per  I\lan- 
■wood  Ch.  B.     Sav.  48.  Pafch.   zs  E^iz-  -^non. 

5.  Inlbrmation  was  lor  Intrulion  into  100  Acres  cf  LiVid  and  40  Acres 
of  Wcod  ^c.  The  Delbndant  pleading  NotGnilty,  the  Jury  found  hna 
Guilty  in  20  Acres  of  Land  and  12  Acres  of  IVood,  and  as  to  the  rejl  Not 
Guilty.     It  was  moved  in  Arrelt  of  Judgment,  that   it  is  nvt  certainly 

found  in  ■ochat  20  Acres  of  Land  and  12  Acres  of  Wood  the  Defendant  had 
intruded  .J  So  that  the  Court  knew  not  into  which  to  put  the  Queen  in 
Poffeliion.  But,  Per  Manwood,  Ch.  B.  This  ihall  be  at  the  Apportion- 
ment of  him  that  profecuced  lor  the  Queen  ;  and  U"  he  enters  into  other 
Lands  or  Woods  than  thole  in  which  the  Queen  has  Interelt,  ac  his  own 
Peril  be  it.  And  this  he  faid  was  the  Opinion  of  the  Jultices  in  the 
Star-Chamber.  Sav.  28.  pi.  67.  Trin.  24  Eliz.  Attorney-General  v. 
Ayleworth. 

6.  Where  Information  of  Intrufion  is  lor  intruding  into  Lands  or  Te- 
nements, and  taking  the  Pro/its  &c.  and  the  Defendant  is  lound  Guiltv, 
the  Judgment  fhaJl  b&  ,G)jio(i  convincatur  Wnhont  an\' Judgment  for  Da- 
mages. But  where  'tis  lor  Intrulion  and  cutting  of  Trees,  or  taking  other 
Things  which  are  valuable,  the  Judgment  Ihail  be  .(^uod  reddat  Dainpna 
&c.  Per  Manwood,  Ch.  B.  and  agreed  by  Fanfliaw  the  Remembrancer, 
Qufere.  Savil  49.  pi.  103.  Pafch.  25.  Eliz.  Anon. 

7.  Intormation  was  in  the  Exchequer  for  intruding  into  the  Manor  of 
D.  in  the  County  of  E.  The  Defendant  pleaded  to  Iffue  which  'laas  found 
for  the  ^uetn^  and  Judgment  was  pray'd  ibr  the  Queen.  Manwood,  Ch. 
B.  faid,  thev  need  not  be  Co  hafty,  tor  there  was  no  Danger,  for  if  the 
Delendant  die  there  is  no  Prejudice  to  the  Qiieen  i  for  every  Verdi ff  is 
as  Judgment  for  the  G)^ueen.^  Ad  quod  fuit  concellum.  Sav.  57.  pi.  123. 
Pafch.  25  Eliz.   Anon.' 

8.  If  in  an  Information  of  Intrulion  the  Defendant  pleads  a  Gift  in 
Tail^  Leafefor  Life,  or  7 cars,  it  fnffces  for  the  J^iieen  to  deny  the  Leafe  with- 
out maintaining  her  7'itle ;  tor  the  Delendant  confefs'd  the  Title  in  the 
Queen,  if  his  Leafe  be  not  good ;  and  therefore  to  deny  the  Leafe  is 
fulRcient.  Per  Shute,  Baron.  To  which  Manwood  and  Clenche  agreed. 
Sav.  64.  pi.  136.  Pafch.  25  Eliz.  in  the  Cafe  of  the  Attorney-General 
y.  Lord  Berkley. 

9.  An  Infoimation  was  exhibited  for  intruding  into  certain  Lands 
called  W.  The  Defendant  faid,  "That  16  H  8.  one  AL  L.  thu  Defendant's 
Another  was  fei fed  ot  the  Tenements  in  the  Information  ^«  her  DtMcfnc 
as  cf  Fee^  and  fo  feifed  died  thereof  feifcd,  and  they  defended  to  the  Defen- 
dant ^c,  ana  jhcwed  Ho^.a,  and  traverfed  thjc  hitiufion.  Shute  faid,  I'his 
Dcfcent  fliall  not  bind  the  Queen,  and  therefore  it  is  no  Plea.  But  Sa- 
vil faid.  This  Defcent  is  made  before  the  Queen  had  Pollelfion,  viz.  16 
H.  8.  and  is  therefore  good.  Manwood  Ch.  B.  asked.  If  they  would 
have  a  Defcent  40  Years  pall  and  more  to  make  a  Title  againft  the 
Queen,  and  faid  it  was  not  reafonable  ;  therefore  bid  them  to  amend 
their  Plea.  Sav.  45.  pi.  97.   Hill,     35  Eliz.   Ex  Relatione   Becket  v. 

10.  Information  of  Intrufion  is  not  Real  hut  Perfonal,  and   to  be  re- ^'^^^^||.'^'^^^"~ 

fcmbled  in  all  Points  to  Trelpafs  ;  For  it  fuppofes  the  King  in  Pollelfion,  but  In  Na- 

as  A£tion of  Trefpafs  fuppofes  a  Subject,  and  the  Land   is  not  demandel  tuieof  a 

nor  recoverable,  but  Damages  only  as  in  Trefpafs,  and  the  Defendant  is  I'^ilelloiy 

tohe  fned  Si   convincatur  "dc   Intrulione  as  in  Trefpafs  if  he  be  found  .^^'^'^'^".'^''^'^j 

Guiltyof  Entry,  Vi  &  Arm  is.  Arg.  Mo.  375,  376.  Mich.  36  dk,  37  Eliz.  'fy^\-^^{i., 

in  Per  rot's  Cafe.  I'^r  Man- 

vood  Ch.  B.  Lc.  4S.  pi.  49.  in  Cufo  of  the  Q;.ieen  v  the  Ld.  V'aux  &  al- 

■      (G.  c) 


220  Prerogative  of  the  King. 


(G.  e)  Office.     In  what  Cafes  the  EJlnte  of  the  Ki/fg  fliall 
be   ckvcjled  'without  Ojfjcc. 


Cro. 
to 


'•o- E.  <i;9,  i,T  JF  a  Mim  by  Deed  inrolled  leafe  laUU  to  J.S.  for  Life,  tljC  Rcmaiii- 

b  ^-^meot"  -*■  ^^^  '"  ^^^  '-'-*  '■'^^  ^'"g  "PO"  Condition,  tljilt  if  he  pay  ;■.  certain 
^amjBln'lj.Suni  Of  Q^OIICP  toche  Lelfee,  tljClt  then  he  may  re-enter,  ailO  nftCC  he 
gDriff  fays,  paN  s  the  Money  f)C  nWP  UKll  rC^ClltCC  UpOH  tljC  LcflCC,  flntl  HCUCft  tlje 

Thatkw:s  ennttoftljcl^ins  U]itl}cut  ©fficci  JFor  nil  tljc  Ccrc«icn)>  of  tije 
except  Ga'v  Coniitioii  1^  to  Hc  Hoitc  to  t\)z  Lcffec.  anH  tijc  ^tatc  of  tlje  feinn;  0c= 

dy,  thar  by  PCUBSi  UpOU  (t  i  bCtlUCeU  Hanj^Jlcy  and  Bme,  pCt  Ctltiam* 

the  Perform- 
ance of  the  Condition,  the  Entry  is  lawful  upon  the  Tenant  for  Life:  and  the  Frank- tenement  being 
defeated,  tiie  (^leeii's  Eftate  is  dcfe.itcd  ;  For  (he  is  the  Perfon  agaitift  whom  the  F'reehold  w.is  de- 
mandable  and  recoverable. 

Cro  E  639.  2»  But  if  tantl  lie  given  to  the  King  bP  DCCU inrOilCtl  UpOll  COlttll^ 
1°  n'       f  tiOlt,  It  tijC   Condition   be  broken  tljC   DottOC  CnmiOt  ElltCr  UlltljOUt 

Hcmikyv  SDffizt i  Jov  t\jt  Cffatc toljicl)  commcnccgi  bv  fatter  ofKccorD, 
Price.        cueljt  to  be  Defeated  bp  Scatter  cfjaccotn.  ^»  4o»4i.(£U  a3>E» 

pec  Cook. 
>[?.'55-        3,  3f  a  Feoffment  ot  otbct  Coitbcpattce  of  Lauti  be  mane  to  the 

C  "r'r  Ufe  of  one  for  Lite,  with  divers  Remainders  over,  tljC  Remainder  in  Fee 
S  C  hys'    '^°  ^^'^  King,  tuitij  a  Power  to   the  Tenant   for  Life  to  revoke  tfjC  fa(D 

That  it  was  iire03  auD  to  limit  nciu  nre0.  l)t  map  rcboi^c  tijc  fciD  iifcii,  ann 
refoived,  ti)Cfcbj)  Uelicft  tljc  Cftatc  of tlje  lixing  in  Hcmaiuiier,  auo  limit  nein 
ofthe  r''"'  ^^^"^^5  becaufe  tlje  Cftate  is  in  tlje  Uiiin;,  but  Quouique  &c.  ano  li= 

verfion  by     tlUtCO.  iDllU   1 1  Cilf.  15.  E.  betUieeit  Smpe  and  Titrton.  aOjUngeD  pCC 

Deed  inroii- Curiam.  Iittr.  -^c.  II  Cai%  Eot.  1137* 

ed  is  a  good 

Revocation  of  the  Ufes  limited  in  Remainder   to  the  King   without  Office  or  any  other  Aft. 

Cro.C.  4;2.  S.  C. 

4.  If  Efcheator  fdfes  Ward  for  the  King  to  which  I  haveTttky  and  not 
the  King,  I  may  re-take  hivi ;  Contra  if  tt  be  found  by  Office  for  the  King  ; 
Quod  Notabene.  Br.  Prerogative,  pi.  83.  cites4H.  4.  15.  Per  Hank  and 
Hul. 

5.  Gtv/em/ Z; wry  cannot  be  but  upon  Office  found,  but  Special  Livery 
may  be  without  Office,  and  without  proving  of  the  Age;  but  there  he 
fliall  be  bound  to  a  Rate  and  Sum  certain  to  be  paid  to  the  King.  Br. 
Livery^,  pi.  56.    cites  28  H.  8. 


In  what  Cafes   the  Eftate  fhall  be  void  without 
Office. 

SceCH.  b)  i^T  JT  tfje  S\ing  leafe  for  Years,  rendering  Rent  at  the  Exchequer, 
Pj- '         •   •     X  and  for  Non-pavment  the  Eftate  to  be  void.      UpOIt  Non-payment 

Manwood  tljc  Cftate  (1)311  Uc  \)OitJ  U)it!)OUt  ^^tt ;  Jfoc  tljis  is  m  iI5atuix  of  a 
ch.  B.  The  limitation,  anti  tlje  JQon  papment  appcats  of  EccotU.  Dub.  be^ 

Leafe  is        ttueett  E^ffyjione  and  Cinnock.  ^.  3  3ia.  13« 
merely  void 

and  determined  in  Right  in  Privity,  and  in  Tenure  ;  for  fo  is  the  Pleafure  of  the  Prince  cxprclTed  in 
the  Letters  Patent.^,  That  itfliall  be  then  void,  and  of  no  Effeft.  And  Judgment  was  given  according- 
ly againft  the  LefTee     ;  Le.  154  to  145.  33  Eliz.  in  the  Exchequer   Sir  Moylc  Fiach's  Cafe. 

(H.  e,  z) 


Prerogative  of  the  Kmi^.  ni  i 


fH.  e.  2)    Limitation.     Statutes  of  Limitations  as  to  ths 
Prerogative.     Concealed  Lands  &c. 


e 


I.     ?,i  Jac.  I.  T?NACTS,  that  the  King,  bis  Heirs  or  S/iccc/lors,  Jball^^foreth 

cap.  2.  P,  not  hereafter  fue^  impeM'h  i3c.  any  Per  fun  Sc.  /sr  or"'''''""^.^'''' 
concerning  any  Manors^  Lanas,  'lencnicnts.  Rents,  Tithes,  or  Hcrcdita--^^f^^^  „f 
inents,  (other  than  Liberties  and  Franchifes,  or  the  IJfaes  and  Projits  a'/'/t/^tlKitanccnt 
concern  the  fame)  nor  make  any  Right,  Claim,  or  Demand  of,  in,  or  to  ?/5?ePrcrogitive 
fame,  by  Reafon  of  any  Rij^ht  or  Title  accrued  60  liars  pafi  and  more.  and?l  ''^'^  , 
noWtnLJJei  Tsn^A^n-, 

Ttm^us  oc- 
curi'it  Regi,  tlie  Titles  of  the  King  were  not  reff;-airied  to  any  Limitation  of  Time  ;  for  tiiat  no  Sta- 
ture of  Limitation  that  ever  was  made,  did  ever  limit  the  Title  of  the  Ki:i<^  to  any  Manors,  Lands, 
Tenements,  or  Hcrfditaments  to  any  certain  Time  ;  and  where  many  Records  and  otlv:r  Muniments, 
making  good  the  Eflate  and  Intereft  of  a  SubjCCt,  either  by  Abufe  or  Ncglige'ice  of  Officers  bv  de- 
vouring Time  were  not  to  be  found  ;  by  Means  whereof,  certain  indign  and  indig^'nt  Pcrl'ons  prying 
into  nuny  ancient  Titles  of  the  Crown,  and  into  fome  ot  later  Time  concerning  the  Pofl'cllions  of  d  - 
vers  and  fundry  Bilhoprick^  Dean,  and  Chapters,  a;id  the  late  jMonaltcries,  Ciiaunteries  &c  of  Pe;- 
Ibns  attainted,  and  the  like  have  palTed  rurreptitioufly  in  Letters  Patents,  oftentimes  under  obfcure  and 
general  Words,  the  Manors,  Lands,  Tenements  and  Hereditaments  of  long  Time  enjoyed  by  the  Sub- 
jefts  of  this  Realm,  as  well  Ecclefiaftical  as  Temporal  ;  Now  to  limit  the  Crown  to  fome  certain 
time,  to  the  End,  that  all  the  Su^ieiits  of  this  Realm,  their  H;trs  anl  Succcflors,  may  quietly  have, 
hold  and  enjoy,  all  and  fingnlar  Alanors,  Lands,  Tenements  and  Hereditaments,  which  they,  their 
Ancellors,  or  PredecelTors,  or  any  other,  by,  from,  or  under  whom  they  cl.nm,  have  of  long  time 
enjoyed,  This  Ait  was  made  and  moved  from  the  Hou'e  of  Commons  ;  the  Body  whereof  confiTts  oi 
three  Parts,  Firft,  that  Part,  which  above  is  in  part  rehearfed,  confiilson  three  Br  inches  ;  Firll,  Thic 
the  King,  his  Heirs  or  SucceHors,  fhall  not  at  any  time  hereufrer  Sue,  Impeach,  QuelHon,  cr  Implead 
any  Peribn  or  Perfonj,  Bodies  Politick  or  Coroorate,  for,  or  in  any  wife  concerning  any  Manors  Sec. 
idly,  Orfor,  or  concerning  the  Revenues,  Illucs,  or  Profits  thereof.  5dly,  Or  make  any  Titlr, 
Claim,  Challenge,  or  Demand  &c.  This  Part  is  exclufive  and  negative,  and  herein  fix  Things  ars 
to  be  obferved.  ift.  T'lis  Claufe  extends  to  all  Manner  of  Suits  &c.  cither  in  Law  or  in  Equity. 
zdlv.  To  all  Manner  of  Courts  whatfoever.  ^dly.  It  extends  not  onlv  to  ail  Manner  of  Suits,  hut  to 
all  Impeachments,  Qiieftionings,  Impleadings,  making  ot  Title,  Claims,  Challenges,  or  Dc;mands. 
4thly,  Under  thele  Words  (Right  and  Title)  not  only  bare  Riglits  and  Titles  are  comprehended,  bur 
Real  Ertates  alio,  5thly,  'Not  only  Suirs  &c.  for  or  concerning  any  Manors  &c.  but  for  and  concerning 
the  Revenues,  IfTues  or  Prof  ;s  &c.  And  this  extends  to  the  Ancient  Dcmefnes  of  the  Crown,  which  are 
mentioned  to  be  relTrained  by  anAft  11  H.  4.  6thly,  So  :'.s  allWrits  of  Scire  Facias,  or  otner  Proc-'supon 
any  Record  ;  all  Informations  of  Intrufion,  or  charging  any  Man  as  Bailitf  ,  all  Finding  of  O.nccs, 
either  intirling  the  King,  or  of  Inform.ation  are  reftrained,  not  only  witliin  thele  Words,  (Impeach  or 
Que(lion)but  alfo  within  thefe  Words  (Or  make  any  Title,  Claim,  (Challenge  or  Demand  )  which  ar>; 
large  and  beneficial  Words,  and  all  other  Suits  &:c.  of  what  Kind  or  Mature  focvcr.  But  this  Ne- 
gative CL.ufe  muit  have  four  Incidents;  ift.  The  King's  Right  and  Title  mull  accrue  unto  him  above 
60  Years  paft  before  the  19th  Day  of  February  in  the  2.1ft  Year  of  King  |an-.es,  which  was  ths 
Day  of  the  Beginning  nf  this  Parliament,  the  Reafon  hereof  was,  That  it  any  Title  ot  Efclieat, 
Forfeiture  &c.  accrued  within  60  Years,  then  it  fhould  be  out  of  this  Art  ;  For  generally  the  Tims 
of  Limitation  to  bar  the  King  was  60  Years,  but  fuch  Right  or  Title  mull  now  be  in  EOc.  5  [nit 
iSS,  1S9.  cap.  S-. 

Unlefs  the  King,  cr  feme  of  his  Prcdccejfors,  or  fome  other  under  zvhan  hc^'^  ''"'^ 
claims,  have  been  anfwered  (by  Force  offnch  Right  or  T'ltle)  the  Rents,  Ijliics,  ^[^(-^"^vyQ^jj 
and  Pro/its  thereof  within  60  Tears  next  bej  ore  the  Beginning  of  this  Par- ^^^i,^  ^0^0^ 
liainent ; [The  3d.  Incide  it  is,]  and  Virtue 

of  any  fuch 
Right  or  Title)  were  materially  added,  for  otherwife  if  the  King  had  beed  anfwercd  tlie  Rents,  Re- 
venues &c.  by  Realbn  or  Pretext  of  Wardfhip,  Primer  Seilln,  Extent,  or  the  like,  it  might  have 
made  a  Doubt,  whether  fuch  an  anfweri  ig  of  the  Revenues  &c.  h.id  been  within  thi.s  Act,  which 
Doubt  is  cleared,  that  it  muff  be  by  Force  or  Virtue  of  any  fuch  Right  or  Title  w hereby  the 
King  impeaches  the  State  ot  the  Subjett.  3  Inft.   1S9.  cap.  S;. 

Or  that  the  Same  have  been  drily  in  Charge  to  the  King,  or  .G)^neefi  Eli- ( Oni)'  .■" 
zabethwithin  theSpace  of  60  Tears. [The  4th.  Incident  is,]     '  CLim)  in 

Judgment  of 
Law,  is  the  Roll  of  the  Pipe  ;  For  altho'  a  Note  before  the  Auditor,  or  any  other  may  "be  a  Mean 
to  bring  it  in  (.^ueftion,  and  to  be  put  in  Charge,  yet  that  is  not  in  Judgm-nt  of  Law  fuid  -.o  be  duly 
in  Charge,  unlefs  it  be  in  Charge  in  the  Pipe.     5  Inft.  189.  cap  8", 

K  k  k  Or 


22  2  Prerogative  ot  the  King". 


It  cannot  Qr  havejiood  Infiipcr  of  Record  within  the /aid  'time. 

(hind  in  S>i- 

1K1-,  unlels  the  Thin<;  in  (^ucllion   were  before  duly  in  Charge.  ;  Jnft.  iSji    cap  S;. 

This  is  the  Jlnd  that  every  Perfcn  and  Tcrfan^  Bodies  Politick  and  Corporate,  their 
fccond  Part  //j.;,._f  and  SucceJJors,  and  all  claiming  L>y,  from,  or  under  them,  or  any  of 
ofthcAtt^  them,  for  and  according  to  their,  and  every  oj  their  federal  Efiates  and  l»ter~ 
and  as  the'  ejls,  which  they  have  or  claim  to  have  in  the  fame  refpeftive'y,  pall  km-e- 
fi-ft  Pan  h  after  quietly  and  freely  have,  hold,  and  enjoy  againji  his  Majefy,  his  Heirs 
Negative  and^^^^y  Succcjfbrs,  cLuming  by  any  1'itle  accrued,  or  grown  60  7}ars  paji,  or  a- 
t^iic  Ri'^ht"  ^""^'"5  ^"^  '"'■'^  ''"  ^'B'^-'  ^^^  and fingnlar  Manors,  Lands,  Ihmnents,  Rents, 
and  Tide  of  T'lthcs  and  Hereditaments  what  fever,  except  Liberties  and  Franchifes,  which 
the  Kinf;,     /-jc  or  they,  or  his  or  their,  or  any  of  their  Ancejiors  or  Predccefjors,  or  thofe 

\o  thus  Part    fy^jj,    ^y    or  under  whom  they  claim,  have  held  or  enjoyed. 
isAffirmarivcJ         J     -"  -^  ' 

a  id  eliablifliing  the  State  of  the  Subjeft.  The  Mifcliief-,  before  this  Statute  were  of  two  Sorts,  viz. 
either  when  the  King  had  an  Eftntc  veiled,  or  continued  in  him  ;  or  where  the  King  had  but  a  bare 
Riglit  ;  For  Example,  the  Kinf/s  Tenant  felted  of  Lands  &c.  in  Fee  is  attainted  of  Felony  and  dies, 
the  King  has  a  Real  Ellate  in  him  ,  but  if  before  the  Felony,  the  King's  Tenant  were  Dufeifed,  atid 
after  is  attainted  and  dies,  now  has  the  King  but  a  Bare  Right  in  both  ihcfe  Cafes,  &  fic  in  Similihus 
the  Subjeit  is  provided  for  by  this  Act,  both  by  the  firlt  Part  and  by  this  alfo  ;  For  where  in  this 
Part  it  is  faid,  (according  to  their  and  every  of  their  leveral  Ellates  and  Iiiterefts  which  they  have  or 
claim)  If  they  have  an  Kftaie  and  the  King  but  a  bare  Right  or  Title,  then  are  they  within  thcfc 
Words,  (which  they  have)  And  if  the  King  has  a  Real  tltate  in  him,  then  are  they  within  thefe 
Words,  (or  claim)  fo  as  the  Remedy  is  applied  to  both  the  Mifchiefs ;  Again  the  Words  in  this  Part 
are  further,  (have  held  or  enjoyed)  that  is  where  the  Subjeit  has  an  Ellate,  and  the  King   but  a  bare 

Right  or  Title.  3  Inll.  190.  cap  87  Moreover,  the   Words   of  this   Part  are   (againft  him,   his 

Heirs  or  Succcffors)  fo  as  admit  in  the  Cafe  but  before,  the  King's  Tenant  being  dilTeifed,  as  is  afore- 
laid  before  this  Attainder  of  Felony,  that  that  Dilleilbr  had  been  difleifed,  or  had  mortgaged  the 
Land  before  this  Statute,  this  kit  in  this  Cale  bavrs  the  King  of  his  Right  and  Title,  and  to  that 
End  works  upon  the  State  olthe  Dilleilbr  or  Mortgagee;  but  yet  the  hrlt  DiHeifor  or  the  Mortga- 
gee for  the  Condition  performed  or  broken  may  re-enter  ;  For  the  VS'oids  of  this  Part  be  (againft 
the  King,  his  Heirs  and  Succellors)  fo  as  the  Bar  isonly  againft  them  ;  and  every  Subject  (liall  take 
Benefit  of  this  Aft,  for  the  King's  Right  and  Title  is  tliereby  utterly  barred;  and  there  is  a  Saving 
hereafter  in  this  Aft  to  all  Perlbns  &c.  other  than  the  King  &c.  all  iiich  Right  &c.  as  they  ought 
to  have  had  before  this  Aft.     ;  Inft.  190.  cap.  S-. 

*  Thefe  Or  taken  the  *  Rents,  Revenues,  IJfues  or  Profits  thereof  by  the  fpace  of 

Words  ex-  ^q  J'cars  next  before  the  Beginning  of  this  prcfcnt  Scffton  of  Parliament,  tiii- 
Cafes  where  ^^'/^  ^'^  Majefiy,  or  fome  of  his  Progenitors  or  Ancejiors,  or  fame  other  Perfon 
the  Real  Ei'-or  Perfons,  Bodies  Politick  or  Corporate,  by,  jrom,  or  under  whom  his  Ma- 
tate  is  in  the  yf/Ty  any  thing  has,  or  lawfully  claimeth,  in  the  faid  Manors,  Lands,  7'ene- 
King ;  here-^^^^^^^j^  Rents,  I'lthes  or  Hereditaments,  by  Force  of  any  Right  or  Title,  have 
ftood\heac-^''^^®  i?;//t'jfrf^  withitt  60  Tears  next  before  the  Beginning  of  this  prefent 
tual  Taking  Sef/ion  of  Parliament,  or  that  the  fame  have  been  duly  in  Charge,  or 
of  theRents,y?oort^  Jnfuper  of  Record,  as  aforefaid,  within  the  faid  Space  of  60  Jears. 
Iflues,  Re- 
venues or  Profits  by  one  that  claims  an  Intereft  in  the  Land  ;  for  albeit  the  King  may  in  Law  charge 
him  as  Bail  ill",  yet  without  Queftion  De  Fafto,  he  did  take  the  Rents,  Iflues,  Revenue*  and  Profits, 
and  fufficesxo  anfwer  the  Letter  and  Meaning  of  this  Aft.  3  Inft.  190. 

This  Part  And  furthermore,  that  every  Perfon  ^c.  their  Heirs  and  Succeffors,  and  all 
s^'^h'^ft''^'^  <:/^/w/»^  by  or  under  them  &c.  /hall  quietly  enjoy  fuch Manors,  Lands  &c.  (ex- 
eaiiift  the"  ^^P^  Liberties  and  Franc hifes)  as  they  now  claim  and  enjoy,  (whereof  his  Ma-  . 
iubjeft,  vvi..jejly,  his  Progenitors  ^c.  by  Force  of  fome  Right  or  Title,  have  not  been  an- 
agamrt  Pa-  fwered  the  Rents  &c.  thereof,  within  60  Tears  next  before  the  Beginning  of 
Kntces  and  ^f^j^  prefent  Sef/ion  of  Parliament)  nm-  the  fame  have  been  duly  m  Charge, 
Conceal-  or  flood  Infuper  of  Record  as  aforefaid,  "within  the  Space  of  60  I'ears,  a- 
inents,  de-  gainji  all  Perfons,  their  Heirs  &c.  claiming  any  KJlate  or  Right  Sc.  in,  or 
feftive  Ti-  to  the  fame,  by  any  Letters  Patents,  or  Grants  upon  Suggejiicn  of  Conceal- 
tles  or  _  ment,  or  wrongful  detaining,  or  not  being  in  Charge,  or  defe^ive  pities,  of. 
Charge  ^^A'^r  for  which  faid  Manors  &c.  or  any  of  them,  no  Verdi cf,  fudgmcnt,De- 
all  claiming  tre^.  Judicial  Order  upon  hearing  or  Sentence  now  Jlanding  in  Force,  has 
under  them,  been  had  or  given  in  any  Acfion  Sc  in  any  of  his  AJaje/iy's  Courts  at 
A  beneficial  jVeJtminJter,  for  or  in  the  Name  of  the  Kings  Majcjty,  or  of  the  late  ^aeen.  > 

£liz. 


Prerogative  of  the  King-.  223 

Eliz.  or  for  any  the  [aid  Patentees  cr  Grantees,  or  for  their,  or  any  offo^  ti,c 
their  Heirs  or  Affigns  within  60  I'cars  next  before  the  Beginning  of  r/^/jGlniichatid 
frefent  Seffion  of  Parliament.  t'le  Com- 

monwe:iltii, 
in  refpeft  of  the  Multitude  of  Letters  Patents  and  Grants  of  tlictc  Natures  and  Qualities,  and  ni.iny  ot 
tiiem  of  larj^e  Ext?nt^^nd  in  general  Words,  and    had  plied   throngli  the    Hands  of  many   indigent 
and  needy  Perldns  &c    This  Part  extends  to  Liberties  and   t'ranclules   wliicli  the  former  two  Parts 
did  not.     9  Inft.  190.  cap.  87. 

'fhis  A[l (hall  not  extend  to  impeach  the  King's  Right  or  Title  to  any  Re- 
•verfton  or  Remainder,  nor  to  alter  the  'Tenures  or  Services  of  Lands  i  and  here 
alfo  the  Right  of  ail  others  (frue  of  the   King)  is  faved. 

l^citherjball  this  Afi  extend  to  annul  the  Ciijloni  of  2d.  paid  for  every 
Chaldron  of  Sea-Coals  at  Neivcajlle  upon  Tyne. 

All  Fee  Farm  Rents,  and  other  Rents  paid  hy  the  mere  part  of  60  Tears,Thh  was 
are  hereby  conjirmed.  added  for 

preferving 
of  the  King's  Fee  Farms  and  Rents  out  of  fuch  Manors  and  Rents  &c.  wliich  are  eftabliflied  and  made 
fure  by  this  Aft  ;  For  Example,  King  £.  6.  granted  the  Manor  of  D.  which  came  to  him  by  the  Sta- 
tute of  Chanteries  to  J.  S  and  his  Heirs,  reierving  a  Fee  Farm  or  anv  other  Kent,  vviiich  Grant  for 
fomc  Imperfection  was  inl'ulTicient  in  Law  to  pafs  the  laid  Manor,  and  yet  is  eftabliflied  and  made  fure 
by  this  Adt,  and  this  Provifo  makes  good  the  Fee  Farm  or  Rent  to  the  King,  if  he  has  been  an- 
fwered  the  fame  by  the  greater  Part  of  60  Years.  5  Inrt.  191.  cap  Sj. 

Provided,  that  no  putting  in  Charge,  Jlanding  Infiiper,  or  a7if-j:ering  the  They  were 
Rents  or  Profits  of  any  Lands  or  Hereditaments,  by  Force  cr  Colour  of  any'-^'^^^'\^^'^- 
Letters  Patents,  Grants  or  Concealments,  "^^11   '"'^"," 

'  '  of  Lonce.il- 

ment,  be- 
caufe  either  they  had  a  Claufe  before   the  Habendum,  Quae  quidcm  Maiicria  nuper  fuerunt  a  nobis 
Concelata,  Subtradla,  vel  Iniufte  detenta,  or  to  the  like  Eftcct,  or  elfe  a  Provifo  after  the  Habendum 
to  the  like  Effect ;    Letters  Patents  of  Concealment  were   granted  in   Qnecn    Mary's   Time,  and  the 
firlf,  that  I  find,  were  granted  to  Sir  George  Hov.ard  ;    and  in  all  fucceeding  Acts  of  Parliament  of 
G)nfirm2tion  of  Letters  Patents,  Letters  Patents  of  Concealments  arc  excepted.  3  Inll.  1S9.  cap.  S-. 

Or  defe^ive  Titles,  By  Letters 

Patents  pal- 
fed  by  the  Warrant  of  certain  CommifTioners  under  the    Great  Seal  for  Compofitions  of  defective 
Titles,  pretending  the  fame  to  be  for  the  Kins; 's  Benefit,  and  Safety  of  the  Subject,  in  which    Letters 
Patents  no  Words  of  Concealment  &c.  are  mentioned,  but  yet  upon  the   Matter  they  were  fuppofed 
to  be  concealed  &c.  from  the  Crown.   9  InU.  iSy.  cap.  3;. 

Or  of  Lands,  Tenements  or  Hereditaments,  out  of  Charge^  This  wis  a 

new  Devife 
to  have  a  Certificate  that  they  were  not  in  Charge,  and  then  to  take  a  Grant  from  the  Kirg  for  a 
very  fmall  Compofition  &c.  and  the fe  were  but  Inventions  and   fubtle   Devices   to  deceive  t'le  King  ; 
to  rob  him  of  lii-^  Tenures,  and  to  the  infinite  Vexation  and  Trouble  of  the  Subject,  all  wh;..;i  Mii- 
chiefs  arc  now  remedied  by  this  Act.  5  Inff.  1S9  cap.  87. 

Or  hy  Force  or  Colour  of  any  Inqui/itions,  Prefentmcnts  upon  any  Commif-'^^^i-y^'^^ 
fion,  or  other  Authority  to  find  out  Concealments,  defeCiive  Titles,  or  Lands,^^y^j:^''y 
T'cnemcnts,  cr  Hereditaments,  out  of  Charge,  Jhall  be  deemed  or  '-^^^'''' ^0  ^'•' added -for  of 
a  putting  in  Charge,  Jianding  Infuper,  cr  anfjoering  the  Rents  or  Pro/its  to  ihisKir.d 
the  King  or  his  Predecefjors,  unlcfs  thereupon  fuch  Lands,  Tenements,  orf'ierewere 
Hereditaments  have  been  upon  any  Information  or  Suit,  (on  the  Behalf  of  the^f^"^'^ 
King  or  his  Predecefjors)  upon  any  lawful  Verdi cJ  given,  or  Demurrer  in  Laip,^  j,',|-j.  ,g. 
adjudged,  and  upon  hearing  ordered  or  decreed  to  the  King  or  his  Predecef-l^^.<i-. 
fors,  within  the  faid  time  oj  60  Tears. 

This  Aff  Jhall  not  extend  to  Lands  for  -^'hich  Compojition  is  or  f sail  be 
made  before  the  End  of  this  Parliament. 


(I,  e) 


2  24-  Prerogative  of  the  Kin^ 


b- 


(I.  e)  Ecckjiajlical  Laojos.     The  AathjUity. 

G^'  nl"%vv  [I'Jl^EFORE  tijCCime  of  l\in!J  William  the  Conqueror,  all  Matters, 
tl,e'co°u.e  1-^  '"^^    ^f^'    spiritual  a?  'temporal  were  determined  in    the 

ror,  the        Court  ol  tlie  Hundred,  UlijClX  UJCrC  UlUUt  tO  fit   3  CCmpOlill  JllDge, 
Bifhoj.sori-  CalleO  Aldermannus,  and  a  Billio}),  tljC  OilC  tOl  CCrsPOVal,  tfjC  OrijCC 


Sethat  i)niireif,  ann  tljeir  Eigljt  fljoulD  be  none,  not  accoutiinii;  to  tljc  |)iuv 

Ti,rethe  orcti,  tipt  arcortJUig  to  tfjc  CpiCcopai  Lauis  ann  Criiionsi.    aiitijigs 

ijiiitopand  appears  ;<?  tljc  Cljartcr  of  iaing  UE'iUiam*  Istrot.  2  ia.  2,  nro  DcCiV 

Lcptih  "^  ^  ^'^-^^  ^'^^^'^^-  Ltnccluc,  3an»  ^ingU  70, 77* 

Court  together.     So  that  before  the  Conqueft  there  were  no  fuch  Courts    in  England  as  we  row  call 
Courts   tcclefiaftical   or  Spiruual  ;  For  anciently  the  Bil-.ops  fat  in  fudgment    ogcthcr  « irh  the  fccu- 
Jar  Judges  and  Shef.fts   on    x\,z  fame  Tribunal,   efpecially   about  Eafter  and    Michaelmas,  as    appears 
by  J\lr_f,elden  m  his   Notes  on    Eadmer,  pag     167,  as  alio  bv  the    Laws  of  King  Athelllon      And 
lorg  atter  the  Cor.qucll,  in  the   Reign  of  H.    2.    1164,    by   hi's  Laws  made  at  Clarendon,  the  Bifliois 
might  interert  themtclves  with   the    King's  fecular  Judges  where  the    Matter  in  Judgn-ents  extended 
rot  to_the   Diminution    of  Iilembers,  or   were   Capital.      Notwithftandmg,   at    the   fame   time    the 
hilhop  s  Ecclefiaftical  Courts,  as   alfo   the    Arch-deacon's  Courts    were  ellab.iflied   in  this    Kingdom 
and  further  ratified  and  confirmed  bv  thcle  very  Laws  of  H.   2.  made  at  Clarendon.     In  the  i  E  (5    it 
was  enacted,  That  all   Procefs   cut  of  the   Ecclefiallical  Court,^   Ihculd  from  rhtr.cefoith  be  ilTued  in 
the  King  s  Name  only,   and  under  the  King's  Seal  of  Arms,  contrary  to  the   Ulage  of  former  Times 
but  this  t.tatute  being    repealed   by  Queen  ISIary,   and  not  revived  bv   Qiieen   Eliz.   the  Eifhops   and 
't     -o-    -  "'^'^       ■^'  Commiilaries,  and  OfScials,  have  ever  fince  cx-eicifed  all  manner  of  Ecclefiaftical 
Juri.dictlonm  their  own  Names,  and  under   the  dillinct  Seals   of  their  feveral  Offices   reflectively 
Alfo  by   the  Statute  2  5  H.  8.  cap.  19.    it    being  enacted,  That  all   former   Canons  and   Conftirutiors 
not  contraryto  the  Word   of  God,  the  King's  Prerogative,  or  the  Laws  and  Statures  of  this  Realm 
Ihould  remain   in  Force   till  reviewed  by   52  Commilfioners    to  be   appointed  by  the  Kino-,  and  that 
Keviewnot  being  made  in  that  King's  time,  nor  any  thing  done  therein  by   E  6.  (thoucrhlic   had  al- 
io an   Act  of  P.^rliament  to  the  fame    Effect)  the   faid   ancient  Canons  and  Conftitutions  remained  in 
boi-ce  as  before   they  were,  whereby    allCaufes  Tef^amentary,  Matrimonial,   Tithes,   Incontinency 
^.otonous  Crimes  of  pubhck  Scandal,  wilful  Abfencc   from   Divine   Service,  Irreverence    and   other 
Mi.'demeanors   m  or   relating   to   the  Church  &c.    not  punifliable  by   the    Temporal   Laws   of  this 
Kealm,  were  ffill  relerved  unto  the  Ecclefiaftical   Courts  as  a  ffandir?   Rule    whereby  thev  were  to 
proceed  and  regulate  the  ExerciCe  of  their  Jurifdiction.  Godolp.  Rep.'  Introduction,  pag.  22,  25,  24. 

Eut  though  the  Bifhop  and  a  Temporal  Judge,  called  Aldermannus  were  wont   to   fit  t'wct'her' 

yet  the  one  fat  for  Masters  of  Spiritual,  aud  the  other  of  Temporal  Cognizance.  Bat  that  was  al'. 
tered  bv  King  Vv' .  by  AiTent  of  the  Bifliops,  Abbots,  and  all  the  chief  Perfons  of  the  Realm-  For 
he  o-dained.  That  the  BiHiop  or  Arch-deacon  ftiould  not  hold  Plea  of  the  Epifcopal  Laws,  &  qu£ 
ad  Regimen  Animarum  pertinent,  in  the  Hundred  but  by  thcmlclves,  and  there  adminiffer 'luftice, 
not  according  to  the  Law  cf  the  Hundred,  but  according  to  the  Eccltfialiical  Laws  and  Canons' 
as  appears  by  King  William's  Charter  inrolled  2  R.2.  Pro  Decano  &  Capitulo  Lincoln  Godolph' 
Rep.  06.  cap.  II.  cites  Tan  Anf.26.2-.  ' 


ep.  96.  cap.  1 1. cites  Jan  Ang,  26,  27 


(K.  e)  Commutation.     Ftnance, 

conl  ^-TT^^?  Commons  prap,  Cljatuiljerc  tijc  Orimmrics  pat  to  a 
hhr.^l  ^X^  Pani  pccunuitj)  all  tljofc U)f)o  ate  foimO  ©lultp  of  tije  ixrcat 
N0.24  —  ®"^''i^^*^^^'^"y  miD  lecijcfp,  faucet,  fomettmcs  400.  ano  lome^ 
Redemption  tiuic0  tiiotc  ot  lei0,  fap  luljic!)  tlje  JLiefic^  are  nreatlp  tnipo\jertflj= 
rTrinnT""  ^\->  '1"^  ^^^^'^J  ^'"5  tljc  mote  fuftaineii  ano  ufcn,  "bijetc;  bp  tije  lam 

Penance  be    ^^^^J'   fUC{)  ^imiCrG  ought  to   bc  chaltifed  bv   Corporal  Penance,  tO 

ing  a  Li-  tljc  (Effect  tijat  fiiclj  €)iii  ajoulD  be  ratljet  taken  aiuap  f;om  aman'X 
berty  iwbie  tljc  l^coptc ,  %\M  ptap,  tijnt  It  uiap  K  ottiainfti,  tIjat  no  OrDinarT' 


Prerogative  of  the  King.  225 

put 

iino  iftljcp  no  not,  tbc  ruun;  luiiltjiVoc  it  well  m  O^cniocpj  aun  cauictot.nes  been 

aiUCltH  It  111  tlillC  to  COUlt*  i\Ol«  }l3aCU  I  p.    5*  M*  24*  vay  mucft 

abulcd,  the 
Churcli  ha'i  made  many  wholfome  Orders  concerning  it.  (l.)  Tiiat  tlicre  he  no  Comn:utati(iii  at  all. 
Lilt  Ur  very  ■I'^eir^Jty  Rcafons,  and  bi  Cafes  very  ■particul.ir.  (i.)  That  when  Conimlitrition  is  made,  it  be 
with  the  I'rsvity  and  Jdvice  of  the  Bipop,  iiiidey  his  Hand  and  Seal;  aad  not  by  the  Ch.inccil  >r,  C.^mniil- 
fary,  or  (vfii.'ial  ;  or  (if  m  any  Gale  u  be  done  by  him)  that  lie  f^ive  a  jufl:  Account  yearly  to  the  Bidioi) 
otall  Commaiation  Monies  in  that  Year,  on  Pain  of  one  Year's  Sulpeiifion.  (5.)  Tli.'t  the  Money  ie 
applied  to pwui  ,'nd  charitable  L'fes.  (4.)  That  it  tlie  Crime  be  pubhcic  and  notoriojs,  the  Satisiachon 
wade  to  tiie  Cnvirch  fh.ill  he  Jh?-,ij!ed  to  the  C.ngrefation  » licre  the  Ori'ender  lives,  with  publick  I'ro- 
fellJons  of  his  SiibmiTion  and  Repentance.  (5.)  That  the  Favour  of  Commut.ition  be  mt  prauted  .1  fe- 
cond  iin:e  to  the  lame  Pcrrl'on  for  the  fame  Fault.  Indeed  none  ot  thefe  Regulations  are  in  Foice  at 
thi':  Day  ;  But  yet  they  may  be  ufeful  Rules  to  go  by  till  fomewhat  mare  auchentick  be  framed  U[>on 
tiii'.  Head      Gibs.  Cod.  IC91. 

Inllead   of   regulating  Commutations,  and  the  Abufes  of  them,  tlie  Commons  in  P;.rliament  petition- 
ed (1  R.  i.  &   1  H.  5.)  that  there  might  be  no  Commutations  at  all.     Gibs.  Cod.  109^. 

2.  Kot*  li)arU  45  €»  3*  B>  2^.  Gomplaint  of  tfjc  ©rninavtCQi,  bc= 

Cailfe  tljCP  Co  not  UlftlCC  CrcfpfllteriS  bp  Pain  Corporal,  tint  OUl[>  \pZ'- 

ciimatp.ituti  Simile  44  €♦  3»Ji5»  4u  but  Dacnt* 
3»  Eot»  parL  45  €.  3*  J^»  24^  Conipianit  of  tlje  0rliinancu  foe 

giijing  Acquittances  to  tljC  Executors  belore  tull  Account  made  $C» 

4.  In  Caic  ot  Comiuutacion  of  Penance    it  mujl   he  nfkr  Scnxaicc.  3  c;^,^  ^  j^^^ 

Inlt.   150.  Kep  ;S;. 

Mich'.  21 
Jac.  inthe  Star  Chamber,  ©r.  SarfelT  ailD  £0r.  3IU0i(or  ^OllES  Regifter's  Cafe,  wherei;^  6  Rules 
were  laid  down  far  Commutation,  i.  That  Penunce  ousi;';it  te  be  injoined  before  the  Party  fliall  be 
adn-.itted  to  m.ike  Commutation.  2dly,  That  it  ought  to  be  in  open  Court.  5d!y,  That  it  ought  to  He 
injoined  in  the  Prefence  of  the  Publick  Regifter.  4thly,  That  the  Act  in  tiie  Rcgilfer  Book  ougiic 
to  be  entered.  5thly,  That  it  ought  not  to  be  granted  to  Perfons  relap'ed.  6thiy,  Tiiat  the  Com- 
mutation  Money  ought  to  be  employed  to  pious  Ufes.  But  Kob.-.rt  Ch.  J.  That  as  to  Conimut.ui.in  w  itij 
Perfons  relapfcd,  tho'  in  general  it  may  not  be,  yet  there  maybe  ti.nie  Circumftanccs  in  a  particular 
Cafe  which  may  m.tke  it  realbnable.  And  Ld  Maundcille  held  the  firft  Rule' true,  That  Penance 
ought  to  be  Precedent  ;  For  that  there  cannot  be  Commutation  for  Penance  where  none  is  injoi-ied. 
2dly,  That  Commutation  may  be  out  of  open  Court,  aad  therein  the  Difference  is  this.  That  fuch 
Tilings  as  are  Con'entiofx  Jurifdictionis  ought  lobe  dstcrmined  in  Foro  Publico;  *iut  that  (uch  as  arc 
Volurttarix  Juri'diLtionis  where  the  Inquiry  is  £x  Officio,  Commututiijn  may  be  out  of  Court,  even 
In  Fovo  alieno  in  another  Diocefs.  ;dly,  That  i:  cannot  be  of  NecelTity,  that  there  be  any  publick 
Regil>er  prefent ;  For  till  H.  :;d'sTimc  there  were  no  Publick  Regiilers,  and  that  it  is  fufiicicnt  it 
it  be  in  Prefence  of  a  Publick  Notary.  4thly,  The  Entry  belongs  to  the  Clerk,  and  not  to  the 
Judge,  and  the  Party  oughr  to  fee  it  done  for  his  own  Advantage.  5thly,  As  for  Perfims  relapfed, 
the  -Pext  is,  That  there  lliall  not  be  Kotary  Recidivo.  6thly,  As  for  the  lalf  th-u  it  is  a  good, 
certain  and  true  Rule  ;  And  he  thought  clearly,  that  Chancellors  are  chargeable  to  inquire  upon  the 
Statute  of  45  &.  4y  Eliz.  of  Charitable  Ufes. 

5.  Publick  Penance  is  a  Pitnifrmcrit  impofed for  a  Crime,  by  Handing 
in  Ibme  publick  Place,  and  making  an  Acknowledgment  ot  it;  toia- 
tisfy  the  Church  tor  the  Scandal  given  by  an  evil  Example.  In  the  Cafe 
of  incell,  Adukfry  &c.  the  Sinner  is  ufuaily  enjoined  to  do  publick 
Penance  in  the  Cathedral  or  Parilli  Church,  or  publick  Market,  Bare- 
footed and  Bare-headed,  in  a  white  Sheet,  and  to  make  an  open  Con- 
felfion  of  his  Crime  in  a  prefcribed  Form  of  Words  &c.  For  fmallcr 
Faults  a  publick  Satisla'Stion  or  Penance  is  to  be  made  in  the  Court, 
or  before  theiMinilter  and  Churchwardens,  or  fomc  of  the  Parilhioners, 
as  in  Cafes  of  Detamation  &c.  Wood's  Inlt.  507. 

6.  Penance  mav  h&  changed  into  a  Ftiic  or  Sum  of  Money  to  be  given 
to  Pious  Ulcs,  which  ts  cj/lcd  Lcnnautirig.  But  the  Judge  ought  not  di- 
reftly  or  indirectly  to  take  any  thing  hereot  to  his  own  Ufe,  or  lor  the 
Affelihicnt  thcreo',  or  entring  the  Publick  Aft.  If  he  doth,  it  is  E.\- 
tortion.  Qu;crc,  It  he  takes  only  bfis  cullonvary  Fees.   Wood's  Inlt.  508. 


L  1  I  (L.  e^ 


2  26  Prerogative  of  the  King. 


Fol.  II- 

5ee  Pinliibi- 
tion  (A) 


(L.  e)     Prnhib'n'io'r-i.  Ecckjiaftical  jMrifdiiliou.    The 
u^fitiquity  of  their  Juriididion. 


I.  I  1a-2.  cap.  14.   tlTfjc  CUtgi)  grcatlD  cotuplnm  for  tfjnt  t\yt 
people  of  l;olp  Cijurcl)  purUiuig  in  ti*c  sspiviiua!  Court  tar  ttje 

Tiuhes,  nUtl   tijrir  o:her  Laules   )i}[)K\)  Of  Xk\\\\)t  aitljOt,   iinD  Of  OlO 

CU11C0  UJcrc  Uiont,  to  pcrtam  to  tijc  fame  ^puitual  Court  arc  indiirted 
fcr  tlji^  Caufc  (j-c* 


(M.  e)     Adm'imjlrat'ion.     The  A-fiUqu'tty  of  Ecclefiaftical 
Jurifciidion  thereof. 

The  Book.  I.  r-p  jC3  e  (©rantin5  of  atmitinff ration  anciently  ann  at  tije  Ci^'w^ 
f.  ^T,^Z      1-    s^^on  laiu,  oia  not  appertain  to  tijc  Cccscilaltical  Courts 

that  the         *^"t  L<)  the  J  enipDrai  Cuurcs. 

Foundation     2.  i$iit  tIjc  IS'rantaiig  of  latmiiniffrntion  ^vas  given  to  the  Ecciei]- 

of  this  Right  artical   Courts    by    Pariuiment,     aniOniJ  tijC   COnftlttttlOnS  Cf  ©ttJO^ 

.vhichthe   jjQ,^^  „^ jj-jjp^ £)j  1500121  Jntcftatoruni.  JfoU52.  it  is  lasa, tO.Tt tois 
wasby/A/-Wa0  heretoiore  probiDcD  fo  bp  tljc  ptclatcjj  Of  tijc  Ucauu  lUItij  tije 
^icomef!o>7  Sipprolintion  of  tlje  ainff  anri  ijis  l3arons. 
fnm  theSecu.    3,  o^jiB  ui  a  pro\3maal  Couttitution,  a0  appears  in  liaUiooD,  190. 
thichT'  (•  ^^''J^'^^J  ^^'"^^  ^^^'^'^'^  ^^  ^"^^J"  ^-tratftirti,  arcijijifljop  of  canterbury 

far  fiom  be- ^nnO  Dom.  1 3 So.  it  appears,  tljat  it  UiaS  herecotorc  ordaincii  Con- 
ing deny-d,   fenlu  Regio  &  AJagnatuni  Ucgni.     It   appcatS  IW   linU!005,  Cfip.  De 

that  it  i.  in  ccitamentiJ?.  jro.92.  tn>  tijc  t  Coniittiman  offoljn  ^tiMtfatD, 
no  other     j,,jj^.|j  -^^  r^j^^g  ^j,,,,^  j^g^^  jjj^^j.  jjj^^  pi'obat.  Of  CeltauTentsj  i^e= 

than  what    lomjcD  u  tljc  Ccclefiasfical  Court  of  all  Cljmgs  OelJifcD  bp  <irctT{i= 

Lyndwood     lllCnt,  except  of  La}-  Fees,  but  not  of  them. 
himfclf  has 

laid  down.  —  Scd  hie  pofTet  qusti,  unde  provenit  hic  Libertas;  videtur  namrjue  quosd  primum,  cuod 
Ecclelia  non  liabcret  fe  intromittcrc  dc  tali  Approbatione  Teftamentoruni,  (ed  potius,  pcrtineret  ad  |u. 
dices  Laicos.  Die,  -juod  haec  Libertas,  quoad  Approbationem  hujurmcdi,  fuadatur  fuper  conlenfu  Re- 
gio, &  fuorum  Procerum,  in  talibus  ab  antique  concelTo.  ■ —  And  again,  —  De  confuetudine  tamcn  \\£Z 
Approbatio  in  Anglia  pertinet  ad  Judices  Ecckfiafticos,  Epifcopos  videlicet  et  eorum  Oiiiciales.  Gibs. 
Cod.  560. 

Lord  Coke  fays,  It  is  held  in  2  R  ;.  tit.  Tcfl.iment  4.  That  iris  onlv  of  late  Time  tlmt  the  Cinirch 
had  the  Probate  of  Teftaments  in  this  Land,  'till  it  was  by  an  AcT:  &c.  For  the  People  have  Probate  of 
Teilamcnts  in  all  other  Places  except  England;  and  in  fevcral  Places  within  England  the  Lords  of 
Seigniories  have  Probate  of  Teftaments  at  tliis  Day  in  their  Temporal  Courts.  And  Tremailc  there 
faid,  that  he  is  Steward  in  his  Country,  and  both  i'ree  and  Bond  Tenants  prove  their  Teftaments  be- 
fore him  in  the  Court  Baron,  and  fo  it  has  been  ufed  Time  out  of  Mind.  And  fo  Finsu.x  and  all  the 
Tullices  in  11  H.  7.  12.  b  agreed.  That  the  Probate  of  Teftaments  did  not  belong  to  the  Spiritti^tl 
Court,  but  of.  late  &c.  that  they  have  not  this  by  the  Law  Spiritual..  And  Linwood,  who  was  Dean 
of  the  Arches,  and  wrote  Anno  Dom.  1411.  in  the  Reign  of  H.  6.  lib.  5.  tit.  de  TeftamentLs.  f.  124. 
confclTes,  that  Probate  of  Teftaments  belongs  to  the  Ordinaries  De  Confuetudine  Anglic  et  non  de 
communi  jure,  and  that  in  other  Realms  the  Ordinaries  have  it  not :  And  in  another  Place  he  affirms 
the  Power  of  the  BiHiop  in  Probate  of  Teftaments,  per  Confenfum  Regni  Sc  fuorum  Procerum  ab  An- 
tiquo.  And  Lord  Coke  fays,  he  has  a  Book  publifh'd  in  Latin  Anno  Dom.  I  5-;,  by  the  Right  Revd. 
Prelate  Matthew  Parker,  Arthbifhop  of  Canterbury,  who  was  very  expert  in  Matter  of  Antiquity.;  in 
which  it  is  aflirm'd  in  thefe  Words,  Rex  Anglic  olim  erat  Conciliorum  Ecckliafticorum  Prsfcs,  vindex 
temeritatis  P.omana;,Propugnator  Religionis,  nee  uUam  h.tbeant  Epifcopi  Aurhontatem  proerer  e.ini  Q\mm 
a  Rege  acceptum  referebant,  jus  Teftamenta,  probandi  non  habeant,  Adminiftrationis  poteftatcm  cuique 
delegare  non  poterant.  Sd  that  originally  the  Ecclefiaftical  Judge  could  not  commit  Adminiftwtion 
to  any,  who  might  iue  or  be  fued  as  Adminiftrator,  but  it  was  given  to  the  Ordinary  by  an  Ait  ;  that 
is  to  (ay,  by  the  kt't  of  51  £.  5 .  cap.  1 1.  And  in  ancient  Time  before  this  Statute,  it  appears  by  Re- 
cord, that  when  a  Man  died  inteftate,  and  had  made  no  Difpofition  of  his  Goods,  nor  committed  his 
Truft  to  any  ;  in  fuch  Cafe,  the  King  (who  is  Parens  Patrise)  was  wont  bv  his  Minifters  to  fcife  the 
Goods  cf  the  Inteftate,  to  the  Intent  that  they  fhnuld  be  preferved  and  difpofed  for  the  Burial  of  the 
Deceafed,  for  Payment  of  his  Debts,  for  Advancement  of  his  Vv  ifc  and  C'lildren,  if  he  has  anv,  and 
if  none,  thofe  of  his  Blo»i.    And  i:  appears  in  Rot.  Clauf  de  7  H.  3.  M.  16.  Bona  iutcftato rum  capi 

fol;;  bint 


Prerogative  of  the  King.  227 


folcbiiit  in  maiius  Regis  Sec.  And  afterwaidv  this  Care  and  Tnift  was  committed  to  tiie  Ordinai-ios  ; 
for  none  could  b;  found  more  apt  to  h:ivs  fuch  Care  and  Charge  of  his  tr.uifitor)'  Goo!;,  alter  the  Dtatfi 
of  the  Intell.ice  t'.ian  the  Ordinary,  who  all  his  Life  had  the  (lure  and  Charge  of  his  immortal  Sou!,  as 
it  is  faid,  Plowd.  Com.  iSc.  in  ©ril'fibrOCls'5  C.ifc,  and  therffore  he  was  to  this  ['urj'orefoiillituied  Ti 
Loco  Parentis.  9  Rep.  57  ■  b  &c.  Trin.  42  Eh/.,  in  Henfloe's  Cafe  — But  ♦  Windham,  J.  affirm'd,  that 
the  Jurifdidion  of  Tcftamentary  CaulL-s  belong  orijjinally  to  the  Spiritual  Court,  and  not  to  the  King  ; 
For  a  Man  by  our  Law  cannot  m.ike  a  Gift  after  h-j  is  dead,  but  the  Spii-itual  Law  will  i:iforce  tiic 
tNecntor  to  do  it.  And  where  Lord  Co.  9  ■;-.  b  in  Henlloe's Cafe  ;  and  Co.  5.  16.  h.  d.-  Jur.  Reg. 
Ecclcf.  hol.ls  that  thev  did  not  originally  belong  to  the  <.)rdinary,  and  cites  .-)  Rccoi-d  that  Bona  Tcl- 
t.itoris  capi  folebant  6cc.  he  thought  that  this  Record  proves  only,  tiiat  if  cne  dicii  Debtor  to  the 
Kting  thole  of  the  Ex-chequer  will  ilfuc  Writ  of  i'rciogative  to  feile  all  his  Goods  &c.  "till  he  has 
liuisfied  the  King  ;  and  this  Matter  is  now  in  U!e,  but  the  Word  (Soleb.ini)  is  not  in  the  Record. 
But  Twifden  ].  c  contra,  that  Teflimentary  Caufes  belong  not  originally  to  the  Spiritual  Court,  butto 
the  Temporal  Courts  and  t  ommon  Law,  and  were  proved  before  Lords  of  Manors  Co.  9.  57.  b.  as 
they  now  are  in  Ibmc  l-'laces.  And  there  are  feveral  P)-ecedents  in  our  Books,  cfpecially  in  the  old 
Books  of  Entries,  where  Actions  uiion  the  C.ifc  and  fome  ACl ions  for  Debt  were  brought  for  Le- 
gacies in  the  Hundred  Court,  but  this  is  now  antiiiuated.  But  in  my  Time  1  know  that  it  was  lidjudg'J 
h-'re,  that  if  one  by  hisTelhiment  dcvilcs  a  Lcg.icy  to  be  paid  out  of  his  Land  (as  out  of  the  [-"rctits 
thereof)  that  for  I'uch,  Aition  upon  the  Cife  lies  in  this  Court.  And  Lord  Dyer  fiid,  that  the  pro- 
per Remedy  for  it  is  to  fue  in  Chancery,  which  proves  that  it  does  no*-  belong  to  the  Spiritual  Couft  ; 
quoA  fuit  concelTum,     Sid,  4'^.  Midi.  15  Car.  2.  B.  R.  in  the  Culc  of  Iviicholfon  v.  Shirman.  — *  S.  P. 

Per  Windham,  J.  i  Lev.  158.  Kill.    16  &  17  Car  z.   B.R.  in  the  Cafe  of  Price  v   Parker.. 

Wills  are  proved  by  Prcfcription  in  fome  Manors  before  the  Steward,  tho'  no  Lands  pifs  by  it  as  in  the 
Manor  of  iMansficId,  and  in  Cou 'ey  and  Caverfliam  Manors  in  (Jxfordfhire  ;  and  its  being  proved  in 
the  Spiritual  Cjurt  u  but  of  later  Time,  and  belongs  not   to  it  of  Ojmmon  Right,  as  Linwood  owns, 

ncr  is  it  ib  in  other  Kirgdoms.     Went.  Off.  Ex.  4.5. But  Noy  afHrm'd,   that   tlie  (.Irdinary  mi^ht 

commit  Adminiftration  at  tl-eCcmnion  L/:-iv  hjcre  the  St.itutc  51  E.  5.   which  is  but  an  Affirmance  of  the 

Common  Law.     Arp;.   Lat.  6S.  Pafch.   i  Car.  in  Mavcw's  Cafe. The  Court  h.-ld,   that  Admi- 

nillrations  origir,ally  belong'd  to  the  Bifhops,  and  the  Inftance  of  fome  Lords  is  not  a  Proof  to  the 
contrary  ;  and  denied  the  Opinion  in  9  Rep.  Henfloe's  Cafe,  i  Salk.  57.  Trin.  W.  Sc  AL  B.R. 
JManning  v.  Kapp. 

I  2  Inft.  4.8S.  cites  this  Conftitution  of  John  Stratford  as  made  at  a  Synod  in  London,  12S0  bat  in 
Q  Rep.  ;9.  m  Henfloe's  Caie  it  is  1580  as  here.  But  in  Cart.  1 5 1  Trin.  18  Car  2.  C.  B.  in  the  Cafe 
of  Hughes  V,  Hughes,  Dr.  Walker,  a  Civilian,  who  argued  in  that  Cife,  faid,  he  admitted  that  John 
Stratford   was  Archbifhop  of  Canterbury,  and  held  a  Synod  in  London,  but  rot  in  15S0,   but   was- 

de.ad  50  Years  bcftn^e. And'  it  appears  in  Chronica  W.  Thorn,  (among  the  Decern  Scriptorcs) 

pag.  2066.  that  John  Stratford,  Bifhop  of  V^'inchefter,  was  made  Archbifhop  in  1553.  And  Ibid.  pag. 
2118.  it  is  fiid,  that  he  died  in  1548. 

4*  'Bp  t\)t  Laui  of  Scotland,  in  Craie  of  mm  Dal>it!  tijc  JTiriT, 
U)ti  ti^cD  tn  ti)c  Ciuic  of  Js)*  r.  nwmj  of  (finrtiiUiD,  ^lactntm  5c 
•cDcftauiento  coram  iW^Kt  (ircclrftnSiea  tractnn  ttet^tiit  $  i^la-ntuni 
tic  '^ritatnnirtQ  an  JTorum  eccicOiiilcum  pcrtlnmt*  ^keac  Kcitwui 
r^iDcftatcm.  lib.  i.  cap*  2*  lib,  2.  capos* 

s*  ^i  Ccffntor  milio0  Crccutorcis  nomumiicnt  polfuiit  propiiuiut 
f  C)Ui5  Coufaimuuicj  aQ  Ijoc  fancsiijum  fc  iinvcitre.  %U\\t  EciTiaisi 
Ci3nierratcm.  lib.  2.  cap.  38*  \jcrfu5  4.  Jta  tn'.of  ft  aliqucii:  !).?rrc.e(u 

\Jti  alUim  Rcium  defunc'ti  DecentoremrepCnUnt,  IjabCbimt  lirevc  J)n- 

niiiii  Regis  tuvcct.  iDfCCtoniitt  ill  Ijac  forma,  Eci:  i')iceccnnti  faditcm 
pra>cmfnu!S  tibi  quoD  )iu7e  $  fine  Diiatianc  taciac^  tiarc  vattoiiabtle 
tcltaiifi'muui  B.  ftcut  FraionabiJitcr  uiagiS  fiarc  potent  t  tccuiitiiir.i 
quon  i!ic  ifiuu  f£Cit  -e  fsuou  fiare  Debet  Ceffammtiun,  M  mns  auttiit 
ism  brclna  ^.titoruatEin  covoait,  altfjum  Otccrit  coatva  Ccilasiu-nt. 
fciiictt,  otioti  not  fiUi;  rite  factusii,  M  quoB  ris  pctita  non  iiut  ffiiata, 
time  ciinticm  ]3(ntumu  illuo  \\\  Curia  Cijrtilianttatijj  inDf  atilufi  DC* 
bet  s  finalitrc  tcriiiinarl ;  iiuw  placituui  nc  Ceitamcntiss  coram  ^u= 
nice  Ccckftaifici'i  traaati  tit  ret  n> 

6.  Mirror  of  jufnccd.  lol.  27.  c.:^p.  2.  @,  13.  *  rsDIXitajS  f)e*  (^'^g-  « 
130155  plea  a'jriin;^  tbe  t  Proijilution  of  t'az  iAniff,  an5  in  |3r£jiir.iccv''o'^"'-'  '-^ 
of  tlje DuTniti>  of  \0  Croum  t  fince  to  no  luoijc  ecc!caafti:nl  it m'fncc) 
tioty  not  icioiux  fo  iiolti  nnp  ptea  Secular  but  of  CcS!a«itnt  aiiU  r<j^^^ 
s^atnuKmi?  tn  prt-utJicc  cf  tit  l^oVDct  of  tix  t\\\\%.  + 1^'°'  ^'S. 

4;  Orig    is 
.  (;DcficQine) 


(N.o) 


228  Prerogative  of  the  Kini^-. 


Sec  Ecclcfi- 
aftical  Court. 


(N.  e)     Ecclcfiaftkal  Law.     Jurll(ii6tion. 


u  Uotv  l^a^h  17  €.  3»  i!5. 5-»  Complaint  miine  b?  tijc  €omman<J 
of  the  iamiis  nii3  £)tficiali5  foe  ijalDms  ifJlcacfCljiiuxspcrtnmmsto 
tijc  CrDuiiu 

2»  6  e*  u  Eot.  i^atcnt.  95cmli.  5*  in  DoiTo*  wpon  great  Com- 
plaint niutic  bp  tijc  ^ijcnff,  I5apiitt0,  nna  ii3cn  of  tIjc  Cciintp  of 
Cuiniuail,  tijaj;  tnc  Biiiiop  of  txcccr  am  t)is  S15uuilci"S  traijunt  in 
phuita  ctoiiiui  ct0  in  Curiam  Cljriflmnam  dc  Cataihs  6:  Uebitis  qu<e 

non  lunt  dtrTfitamento  vclMatrimonio&eciam  de  Laicis  P"eodis,  PoHacis, 
Divilis,  Parcis,Rivariis,  Pifcariis,  Sabulonibus,  &  deTran^rcffionibus  & 

Diitritiionihus  (u  c:0  faftis  quoruiu  cortiutio  ;t  Corrcftio^an  Ccrcnam 
$Dia;nitatun  nottram  gt  ncn  an  Jfoiura  eccicfuaitcuni  pitt.ncnt$ 
ttuini  niioscam  cariim  per  fentcntias  €ccom.  coiupulcriint  $  aoi)uc 
foinpcilcre  non  cciFant  ao  Eenemttams  ciiunmauiarum  ijra\Jtffiina0 
fiociu  (Cpiliopo  ct  caufiy  pt^Dtrtiis  pr^tranlfi0  $  aD  0L-.iiuatiunc5  cl 
faacnnag  jt.  in  lACgue  Dignitatis  a  Coronje  isfiancai  $  noart  $ 
iinUtorinn  Cjrijaroitationtm  Uianucltam  qua  ulrcriu0  @>iiitincrc 
noUiuiiis  nee  cebcre  eomlitutmus  $c*  ani)  t'jerelxire  a  Comiiii(fian 
grantca  to  ecrtam  }3crfou0  lHo  auQicno,  $  ^ilcruuuanQ*  tijofe  0xii)i-- 
amm  lip  ©atij  of  $c» 

V  4  ^*  2.  lib.  l^arU  ifol  86,  an  quereiam  Conmuinttattiiu 
Eesni  Sngli*  conquer.  He  CO  quou  Pia'iati  Ecpt  loqudcunt  nimis 

lar>;e  in  C  aulis  f  COlltCiitlOIUbUS  pertinentibu.s  ad  Coronam  ({■   DlQ,''- 

nitatcni  Ecguvai  (tc.   Jta  Ecfponfum,  fi  qiuss  fenftrtt  fc  ijiauatum 

qUitrat  Remedium  fibi   in  Canceliaria. 
4-  fpll.  6(£.  I.  X^.  EOt.  i3»    Inhibitum  fuit  qUOt!  UOU  prOfCqUatUC 

ultcriufli  in  Curia  COnftianitatisj  de  Debitis  &  Cataiiis  $c. 

For  laying  5.  ^tatUtUHI  de  Circumfpetfe  agatis  13  E.  i.  In  Magna  Charta, 
violent  f^i   gp    j3g  violenta  Manuum  injeftione  in  CJeiicun^  Pt  in  CaUfa  Deta- 

spirkua"  "*  m-inonis  concctfum  fuIt  aliaiS  quots  piacituni  intJC  ttneatur  in  Curia 

Perfon,  Ac-  CtTiffiaUItatlS  CUlll  non  petatur  Pecunia  led  agatur  ad  Correftioncm 
tion  lies  in     peccaci.  Ct  flUlllitCr  pro  Fidei  Lsfione. 

the  Spiritual 
Court,  but  he  iliall  not  I'ue  there  for  Damages.     Per  Coke,  Ch.  J   Roll.  R.  255. 

6.  Prohibitio   formata  de  Statute  Articuli  Cleri  in  Magna  Charta.  2 

part.  foi.  70.  b.  Qimn  Coftuitloncs  lt3iacitorum  tic  Caufis  pecuma= 

riig  $  tic  alti0  Catailiis  $  Dcbttis  qu*  non  5c  'Seftanjcnto  m  eoa^ 

trtmcuio  ati  Coronam  tj  Dignitatem  noaram  pertineant  tic  ConUtc^ 

ttininc  ouiocm  Ecgnt  appronata  f  ijaaenusj  obferiinta  ctc* 

*  Proof  of      7.  jt  fcrmsJ  bp  ttjc  statute  of  2  h.  5.  cap.  3.  <nnoti  Uiue  2  ip.  s* 

Will,  and    j^ot.  \?Axl  iI3. 5*  accorUir.gip  tljat  Caufesi  concenimg  *  Teitament 

'?  h''*^"^h'^  ^"'^  +  Matrimony  appertain  to  tljc  Conutaucc  of  tijc  ciemporal  Court; 

Lrs^"^  the  'But  ducETC  tl)c  'BiU  upon  tljc  JFile,  if  it  be  not  miitahen  in  tijc 

Ecclefiaflical  ^^nUt. 

Court,  and  if 

they  ad'.udgc  a  Perfon  capable  of  making  a  Will,  B.  R.  will  not  intermeddle;  for  it  is   withl'i  their 

JurifdiCtion  to  adjudge  when  a  Perfon  is  of  Age  to  make  a  Will,   Per  Cur.   z  Mod.  315.  Trii\  ■50  Car 

2.    B.  K.  Sniallwcod  v.  Brickhoufc  The  Ecclefiattical  Court  is  the  proper  [udge  whether  a  Will. 

or  no  Will,  and  howfoever  they  determine  'tis  conclufive  at  Law.  Comb.  45.|.  Ivlich.  9  W.  5.  B.  R. 
Gray  v. Tench. 

I  If  any  marry  without  Proclamation  of  Banns  or  Licence,  they  are  citable  for  this  to  the  Eccleft- 

aftical  Court,  and  no  Prohibition  lies  Refolved.    Jo.  259.   Matingley  v.  Martin.- Wife  or  not  VN'ife 

U  triable  at  Common  Law,  but  whether  lawfully  married  or  rot  is  triable  in  the  Spiritual  Court.  Sti. 
10.  Pafch.  15  Car.  Betfworth  v.  BelHVvorth. •  Jenkins  289.  pi.  26.  fays,  the  Spiritual  Court  h,is  no- 
thing to  do  with  the  Lcg.dity  of  the  Marriage,  but  where  the  Temporal  Court  commands  them  to  iii- 
i^uirc  and  certify  it,  and  this  in  Real  Actions  only. 

s.  mt 


Preroaative  of  the  Kine:.  220 


.^C^VXVV,     V.X        LIX^       LVXUC^ 


8.  Kot.  IParl.  25  €.  3*  2  ipart.  B.  64.  upon  l^itltion  of  tlje 
Clcrixj',  tijc  l^inij  anfujcixtj,  3f  Title  of  Voidance  bc  taken  lu  l^lca 
licforc  3:imicc0,  luljcreof  tlje  coniifancc  appcrtainei  to  tl)e  Court 
Cijnman,  let  tlje  partj?  Ijaue  iji^  Cljailcnije,  anti  tlje  Jlumccs  oa 

IJIUl  ElLTljt> 

9*  Cijcfc  picas  Ijerc  cnruina;  are  *  iiiccr  Spiritual,  luljereof  tlje  *V'''^'' 
ecclefiaflical  Court  map  Ijolo  J9lca,  fcilicct,  Oe  Correttionibus  quay  /-T^f^ 

lc)r*latl  filCUUtt,  Pro  Mortuli  Peccato,  icUttet,  \fiXO  t  Fornicacione,  nF^f'tuP 
Adulierio&  ^  Hujufmodi,  ||  prO  lUUbUjS  allQUnUtJO  mfitgttUr  l^^Ua  L^^"»^^ 

^  COiporali!^,  aliquanlio  }?CLumaria,  niarimcft  coniJirtUiS  fucntBe;'"^'^.'"'^-'-- 
rpujuiiiiooi  Libcc  Ipouio.    Item  ft  pr-iatue  puniat  i^oCc^incLcrio^;^,';;^';;^^''' 

non  claulb,  **  Ecclelia  difcooperta,  vel  non  decenter  ornata,  in  qiUlUICi  have  no  "^^ 

cafibius  alia  poena  non  poteft  infiiBi  quam  Pecuniaria.  3;teni  ft  Rcrtoc  Temporal 
octat  \jerru,5  parocl)iano<3  ft  obiationes  &  Dedmas  neintajji,  ^cl  con=  ^^i^ure, 

UlCtaSi ;  VJCI  li  Rector  agar  contra  Reclorem  dc  Decimis  Majoribus,  vel  ^caio^  ^°'''' 
Miiioribus,  dummodo  non  petatur  quarta  Pars  valoris  Eccle)icE.     ^tCm  Pro  "\hite 

fi  Eertor  petat  Mortuarium  in  partibu^  uln  £9ortuarium  tari  confue=  -^"^it"  hc- 
Dit.   Stem  fi  j^tslatusi  alicu)U0  Cccleft^,'  isel  aouocatusi  pctat  a  {^%k 

EertOretf^Penlionem  fibi  DelJitam,  Omnes  Hujufmudi  Petitionee  func 'J^^J,''"'^';^.^. 
taciendte  in  foro  EccleJiallico.  |!|j  Statutum  de  Circunifpedte  agatis       14  and  die  Hk" 
E.  I.  in  Magna  Charta,  fol.  89.     KOt.  Pari.  25  (£.  3*  2  part.  JI5.  62,  are  mcer  ^' 

3It  uiajj  pcapeD  bP  tlje  Clerg}?  tijat  tljis  S)tatute  migijt  be  conftrmeo,  ^'''.'t"^' 
petitisnotcouc.  leP^^e?' 

ot  granting  Adminiflration  and  Probate  ot  Teftamcnts,  do  not  de  Jure  Communi  belons*  to  the  Court 
Chriftian.     2  Inft.  4SS. 

I   The  Conufance  of  all   Formratwis,  Adulterie',   and  Suf'-iiictrs  Uvivg  hi  .-IcI.nUerv,  belongs   to  the 

EcclefialHcal  Court.     Jo.  259,  M.uingley  v.  Martin In  ancient  Time   the  King'^  Courts,  and  clpc- 

cially  the  Iff/,  hid  Power  to  inquire  of  and  punifh  Fo'-niLution  and  Adultery,  by  tlic  Nam^  Letherivite 
[or  Legei'iviie,  for  which  fee  vSnmner's  Gloif  V'erbo  Lethcrwithc]  and  it  appears  otten  in  Doomldav- 
Book,  that  the  King  had  the  Fines  afTcfs'd  for  tho'e  Ofl-'er.ces,  a;-.d  chat  they  were  alTels'd  in  the  Kin<''s 
Courts,  and  could  not  be  inflicted  in  Court  Chriltian.     2  Inrt.  4S8. 

:j:  This  extends  ro  SoUicitution  of  Chajiity  of  any  Woman,  and  to  Ii.cefl,  the  firft  wh-reof  is  a  leTs,  and 
the  laft  a  greater  Ort'cnce  than  thofe  mentioned  of  Fornic.uion  and  Adultery.  2  Inil.  488.  —Cited  per 
Vaughan  Ch.  J.  V.iugh   212.  in  Ca'e  of  Harrilon  v   Burttel 

^  Pecuniary  Punifliment  muft  be  intended  by  Way  of  Commutation  of  Penance.     2  Inft.  4S9. 

♦*  By  the  Words  (^Church  Uncovei'u)  is  intended  not  only  of  the  Body  of  the  Church,  wiiich  is  Pa- 
rochial, but  alfo  of  any  Fnhlick  Chapel  annrx'd  to  it  ;  but  it  extends  not  to  the  Private  Chapel  of  an',', 
th'  fix'rl  to  tie  Cliirch,  for  that  muff  be  repaired  by  him  that  hath  the  proper  Ufc  of  a  ;  but  as  to  the  firll 
tlie  Parifhioners  ought  to  do  it  Per  Conluetudinem  Notoriam  &  Approbatam,  and  the  Conu'ance  there- 
of is  allowed  to  them  by  this  Adt,  but  the  Claricel  is  to  be  repaired  by  the  Parfon  &c      2  Inlf  4S9. 

■\-\  Obiationes  dicuntur  quECunque  a  piis  fidelibufque  Chriftianis  Otferuntur  Deo  &  Eccleiise,  five 
Resfolidx;  five  Mobiles.     2  Inft.  489. 

4:4:  In  Ca<c  of  a  Penfion,  5c  pro  Rationabili  parte  Bonorum,  both  Tempor.d  and  Ecclefiaftical  Courts 
have  JurifdiCtion.  Per  Twifden,  Rainsford  and  Wild.  2  Lev  12S.  Hill.  26  Sc  2;  Car.  2.  B  R.  Trat- 
ford  V  TrafFord. 

nil  This  Statute  of  Circumfpefte  Agatis  was  made  in  t ;  E.  i.  and  is  called  by  tliat  Xame,  becaufc 
it  begins  thus,  vi?..  Tjf-f  King  to  his  jfiidr^es  fer.Aeth  Greeting;  ['/r  yowfelin  iirciimjp.-tlly  in  all  A'.utert 
concerning  tic  *  Blftiop  of  Norwich  and  lis  Clergy,  not  pitnifiint^  them  if  they  hold  Plea  in  j  Court  Chri- 
ftian ot  fuch  'fhin^s  as  he  meer  Spiritual. *  The  Bifliop  of  Norwich  is  put  here  only  for  an  Ex- 
ample, but  n  extends  to  all  Qijliofs  within  this  Realm      2  Inft.  487. PI.  C  56.  b.  in  Piatt's  Cafe. 

I  It  1^  called  Court  Chriftian,  becaufc  as  in  the  Secular  Courts  tiie  King's  Laws  derennine  Caufes,  (b 
in  Ecclefiaftical  Courts  the  Laws  of  Chrift  fhould  rule  and  direct ;  and  therefore  the  Judges  in  thofe 
Courts  are  Divines,  as  Archbiftiops,  Bifhops,  Arch-deacons  &c.  And  it  may  be  found  among  the 
Laws  publifhed  before  the  Conqueft  by  King  Edgar  thus,  vi/,.  Cclebeiriinus  autcm  ex  omni  Satrapii 
Conventus  bis  quotannis  .igitor,  cui  quidem  illius  Diocefis  Epifcopus  £c  Aldirmannus  intcriunto,  quorum 
alter  Jura  Divina,  alter  Humana  populum  edoceto      2  Inft  4'<S 

Till  the  BitTiop's  Jurildiction  was  increafed  by  Act  of  Parli.iment,  he  could  hold  Plea  only  in  Mat- 
ters Teftamentary  and  Matrimonial,  but  by  the  Statute  De  Circumfpecte  agatis,  and  of  Articuli  Cleri, 
he  may  now  hold  Plea  in  many  other  Cafes.  2  Mod.  n8.  Mich.  18  Car  z.  C  B.  in  Cafe  of  Waterficld 
V  the  Bilhop  of  Chicheftcr. — 2  Inft.  487.  537. 


M  m  m  (^-  ^O 


S  p.  Per 


230  Prerogative  of  the  King. 


(O.  e)   Eccleiiaftlcal  Law.     ScnieiKC. 
^.  V.  ler     u Tif  a S'cntcncc  be  ci^nt  lip  tijc  ©rtisnarj) or  otljcr  ecclcfianicai 

Archer  J.  J|^   S'llOgC,  it  is  to  be  prefumed  by  the  judges  of  the  ComiVion  Law, 

a  Vent.  45.    jhac  it   is  according  to  the  Eccleiialtical  Luvv,  and  io  they  ought  to 

Cafe  of  Grove  v.  Dr  Elliot. 

To.  -,9;  S  C.      2.  Jf  tl)£  High  Commiffion  deprives  a  Man  Of  IjtS  ISZWtf'SZ  l3P  iTorCe 

"A"di_ays     Of  tl)cir  CommiffioiT,  anti  it  is  founn  liu  Special  aDcuDift  tljiit  tijep 

1  delivered  OepmeD  Ijim  V  irtute  Liter.  Paten.  tljCp  beUIQ;  nUtljOCtjCr!  Secundum  lor- 
tlie  Opinion   mam  Statut.  Virtute  Commiffionis,  fOC  BlDei'S  COIltCinpt0  tO  tijC  €)t= 

of  the  Court,  rimarp;  tljo'  tljc  particiUtir  Caufe  is  not  foimn,  "^a  it  is  gcoo,  ana 
that  the  £c-  x\)t  court  oiiaijt  to  prf funic  tljc  Sentence  to  l)c  U)CU  grjcn,  ag  aeii 

CommiSn-  ^0  tf  It  tjati  tiCCU  01i3Clt  HV  [tljC  ©ttimtirj)  i  ilCCaUfC  ttC  Kmg  might  be- 
ers  mi"ht  fore  the  Statute  ot  i  EL  make  Commiffioners  by  his  Letters  Patents  to 
>\ell,  for      proceed  according  to  the  Eccleliaftical  Law;  au5  i)tXZ  \t  appCaVy  t!)at 

goodcaufe,  tijijj  jBrcceetinw'uias  againft  a  spiritual  pcrfoii,  aim  lip  eccicfiuffi' 
Eccie'ffafticai  ^ al  Ccnfurc,  fell.  Deprivation,  ano  not  aaaintl  a  93an  accorQing 
Perfon  ot  his  to  tljc  gitatutc  of  I  €U  attti  tOereforc  tlje  Court  ougljt  to  gii^c 
Benefice,  as  ctcOtt  to  tljcit  g)cntcncc,  toitljout  fijctntng  tljc  Caufe  m  particular* 

well  as  the     ^fj,^^  i  ^  (j^flj;^  ']^^  ^^    bCtlDCCU  Jlleu  and  Nafr,    aOjUtilJCli  UpOU  a 

ordinarr-  ^P^^^al  aDcttuct,  Cljijs  conccmcu  one  Hmnky.  jntratur  v9»  8,  car* 
and  when'  Kot.  5o8>  3110  tljis  agtcejEi  loitl)  Caudref^  cafc.  Co.  5»  7*  aiiti  tl)e 
the  Jury  Coiut  tiouciyQ  tl)c  olo  OBooU  of  entries,  WiX.  Slbbs  u  iDljere  it  iss 
find,  that  he  pjeatieti  to  be  mane  top  Coinnitmon  gcncrallp*   15\\t  JOota,  tljat  tlje 

Td^'tS'the  Court  fecmetl  tljat  if  fuel)  8'CntCnCC  IjaO  bCCit  grounded  meerly  upon 
Special  the  Statute  of  i  El.  againll  a  Layman,  tfjat  tljCU  tljC  Caufe  of  the  Sen- 

Caufe  does     tence  ought  to  appear  to  the  Court,  lip  VUljiCl)  \t  inigljt  appcat  tO  tlje 

not  appear    coutt,  tljat  tl)c  93attcr  for  toljiclj  tljc^gtentencc  toa^  ralieu  uiae  with- 

the  Verdift  '"  ^^^  J  urifdi6tion  of  the  High  Commiffion. 
or  Sentence,  yet  it  is  good  enough. 


(P.  e)    Ofaiohit  EffcB  it  fliall  be  in  our  Law. 

cro.j.465.  u  T jf  tIjc  CIcrfe  Of  3'»  S>»  bcanmittctiantiinaitutctj,  anu  after  tfie 
W^a. —  ClerHof3!»D»  \&  satmiitteri,  Inaituten  ano  inauctcQ,  uilucij 
fpi  &  227.  ijs  ijoitJ,  becaute  tlje  Cburclj  tuais  flill  before,  ann  fo  tljtss  a  super  in- 

Pafch.  and  Ititution,  ailO  aftCt  the  Inllitution  of  the  Clerk  of  J.  S.  is  fentenced  to 
Trin.  I ;      be  Irrita  &  Nulla,  (bCCaUfe  IjC  U)a0  inaitUtetl  COntrarP  to  a  *Ca\  eat  cu* 

2  RoH  r"6  f*^"^^^'  atnnittino;  tlji0  to  be  a  poD  Caufe)  pet  it  fljaU  not  fo  relate  to 

Hill°  15  Tac  make  the  Inllitution  anH  JltUUCtiOU  of  the  Clerk  of  J.  D.  good  ab  Ini- 
S.  C. — — tio,  which  was  void  before.     |)l|.  15  3!aC»  15*  K*  bCtlUeen   Hitching 

*  The  In-  and  Glover  aojuogeii ;  fot  otljerioife  bp  fuclj  Si9eans  a  l^urcljafcr  map 
f'"^^p^"'^beuttcrlpriefcatenofbi0'2i:cmporal  Snljcritancc,  bccaufc  tijis^eii' 
ftands  good,  tence  map  be  after  6  $^ontlj0  i  for  tljcn  ijc  10  uiitijout  Ecmeop* 

tho'  a  Ca- 
veat was  entered,  and  the  Ecclefiaftical  Court  catinot  meddle  with  it.     Litt.  R.  165.  Stevens  v.  Crilp.' 

2*  31f  a  lapman  be  aUmitteU,  inffitutcn  ann  intiucteti  to  a  'Bene- 
fice, aitO  after  6  Months  IjC  10  deprived,  becaufe  he  is  a  Layman,  and 

a  Sentence  of  Nullity  Of  W  ^limitfion,  Jnftitutiou  aitti  JnHuction, 

pet  it  lljall  not  fo  relate  to  make  a  Tide  of  Lapfe  to  the  Ordinary ;  for 

otiieriuifc 


Prerogative  of  the  King.  20,1 


otljenutfc  bp  fuel)  $T9can0  tlje  temporal  Jnljcritancc  \m\>  lie  mm 


(Q,e) 


Clergj :     Priv  i  leges. 


I.  Hot  pari*  15  npDec  Clergy  praved  that  thev  ought  not  to  be  P- vine's 
e,  3*  B*  1 9-     X     taken  nor  impriloned  lUltljOUt  CilUfC  Or  l^rO^  ^br  ^z""' 
Cef0  of  laU)  by  tlje  S^im(ter0  of  tIjC  Hinn;  by  his  Comniandment,  N"  ,y  ' 

aguinii  the  i.aw  aiiD  aDfapsi  Of  tlje  Lano :  Co  iuljiclj  tlje  HaIiiq;  mv 
fuicrcB,  tijat  lji0  intention  10  not  to  no  contrarp  to  tOe  laui,  luit  if 
anp  10  taken  tip  ComuianB  of  tOc  t\m,  it  10  Qoitc  tor  jitft  Caufc  bp 

tlje  Ordinance  made  in  the  Parliament  oi  Northampton  f  e,    ^UClj  X^Z- 

tition  bp  tljeni  niaue  15  C*  3*  JI^»  21,  aijaluft  3Imprlfonment0  uiaGe 
of  tljeni  bp  rtje  3iiiflicc0. 

2.  iRot.  Pari.  15  €.  3*  B»  22.  30.  Clje  Clerp  complain,  tljat  P'-ynnc-s 
tuljen  It  10  retiirneD  tijat  a  Clerk  lja0  no  Lay-iee  nt  lji0  'BaplitDick,  ^v."  ^'^<  „ 

immeDlatCly  a  Capias  10  atuartien,  where  they  ought  to  lend  a  VV^rit  to  f,  ^l,      ' 
the  Billiop  his  Ordinary,  tO  CaUfC  Ijim  tO  COmC,  aUO  UlfjCn  anP  Clerl%0  N"  ;o  ^^ 

arc  conUcmncri  before  tijcm  for  aiip  Sinn  for  anu  CuiUe,  tije'Jiuif ices  »f  a  sdre 
coaimann  to  \zW  t\)t  faia  aum,  uiitljout  fentJinnj  to  tlje  OSiiljap  1110  /  ^"''^  be 
£DrDina.p,  bp  uii)iclj  Commaitanieut  tlje  lay  Ii5nisaer0  enter  tijc  on°a^Re"^' 
jfeeofii3alp"Clj^rclj,  ann  tlje  #00110  aiiDCljattela  u.  Co  iuljidj  cognisance, 
tljc  l^inn;  an0uiereri,  Cije  pro£ef0  aforcfaio  10  niioiuable  bp  tlje  iLau)  «'■  "pot^  a 
of  tlje  lanD,  ann  lja0bcen  Cinie  luljcreof  a^eniorp  $c.    ^m  it  10  J"<^g"^2ni"» 
not  tlje  Jntcntioa  of  tlje  fAtnij,  tijat  anp  laynian  enter  tije  j7ee  orAnnukv''^ 
ipolp  Cljiirclj  againft  tije  Pri^iieo;c0  ano  irrancljUe0  tlcrcof*  and  the  W 

rijf  retiirKS 
that  the  Defendant  is  Clerkus  Bemftci.iliis  ruUiim  hnbevs  Lnhiim  Feodum  &c    The  Plaintiff  niill  have  a 
Writ  to  the  Bifhop  of  the  fame  Diocefe,  to  warn  the  Defendant  ;  and   if  he  appears  not,  or  flievvs  no 
Matter  wherefore  Execution  fhould  nor  be  <;ranted,  then  a  Writ  fliall  be  awarded  to  the  Billiop  to 
levy  Execution  de  Bonis  Ecclefiafticis      Gibf.  Cod.  i  -. 

in  an  Aftion  oi  Account  &c.  the  Body  of  a  Clergyman  jhall  not  be  arrejfed  by  Capias,   but  the  Slicriif 

can  only  return  Quod  Ciericus  eft  Bencficiatu':  Sec     Gibf.  Cod.  15 Nor  upon  Statute   StaoJc  or 

Statute  Merchant  ;  for  which  Purpofe  there  is  not  only  the  Claufe  in  the  Writ,  Si  lienis  fit.  Re  'iltcr 
fol.  146.  147.  but  a  Special  Writ,  forbidding  the  Sheriff  to  arreft  him  ;  or  if  lie  be  taken  by  fucli' Pro- 
cefs,  a  Wnt  is  provided  for  his  Difcharge.    Gibf.  Cod.  1 5 

3*  Kot.  pari  45  €.  3»  B,  is*  'Bccaufc  in  tljid  prcfcnt  parlsa-'  rv^^.-o 
nient  it  U3a0 fljeion  to  tlje  t^ing,  bp  all  tlje  lorDd  anti  Commons  of  ^^li^.'' 
Cimlanti,  tljat  tlje  <J?oi!ernment  of  tlje  Eealm  lja0  lonn;  been  uiaticpwnne^ 
bp  people  of  Dolp  Cfjurclj,  uiljiclj  are  not  )uftifuible  ni  all  Cafe0,  bp  cott'  Rec. 
luljicij  great  C^udjief0  ann  Dama!je0  IjaDe  Ijappciiro  in  Cmie  paft,  Abr  1,2. 
niiD  more  nml)t  Ijappen  in  Cimc  to  come,  in  Diiljcnfon  ot  m^^-  'J- 
Croiim,  anH  great  premriice  of  tljc  fait!  Eealm,  bp  isiueife  Caulcy 

tUljiCiJ  one  nilgbt  Declare,  tljep  piay  that  Lay-peoplc  and  no  other  be 
chofen  Chancellor,  Treal'urer,  Clerk  of  the  Privy  Seal,  Barons  of  the 
Exchequer,  Chamberlains  ot  the  Exchequer,  ConiptroHer,  and  all 
other  Greac  Orticers  and  Governors  ot  the  Realm.      ^UflUCr,  CijC  li%ina; 

uiiU  ornain  upon  t!ji0  point  a0  to  Ijim  IljaU  fecm  bcit  bp  tlje  ^Wcz 
ofljiggacliCoiinciU 

4.  Eelidcs  the  many  Confirmations  of  the  Great  Charter  in  Parlia- 
ment, (which  included  a  Confirmation  of  the  Rights  and  Liberties  of 
the  Church  and  Clergy)  and  belides  other  general  Confirmations  of  the 
Rights  of  the  Clergv,  in  Conjun£tion  with  thofc  oi  the  Laity,  there 
have  been  divers  Acts  and  Claufes,  efpecially  in  favour  ol  the  Clergy. 
Accordingly  divers  of  our  Kings  belbre  the  Conquefl:  (particularly 
Edivard  the  Elder^  Edgar ^  Canutus^  and  Edivard  the  ConlcJJvr)  begin  their 
Lav/s  with  fpecial  Provilions  for  the  Liberties  of  the  Clergy,  of  which 
therclbre  the  Uiiige  lince  is  only  a  Continuance.     And  'tis  oblervable, 

that 


2C^2  Prerogative  of  the  King. 


that  many  of  the  Confirmations  were  made  at  the  fpecial  Requelt  oi  the 
Commons  in  Parliament,  whofe  Petitions  Irequently  began  with  f'uch  j, 
general  Clauie,  in  Favour  of  the  Church  and  Clergy.  Gibl!  Cod.  5. 
and  fee  Ibid,  topag.  22. 


(Q.  e.  2)    *  Ordhicvy^  and  Pozver  of  the  Ordimry. 


*  In  fomc 
Acts  of  Par- 
liament we 

S^oVwb?'  inrp'>s  ©rtjfmirp  Ijimftif,  tuitljout  anp  Canon  or  Citftain,  c^n- 

called  Or-  X     HOt  command  any  Layman  to  obferve  any  new  Cciemony  in  ti)Z 

dinary.and     CljUrC}). 
fo  tiiken  at 

tlie  Common  Law,  as  having  ordinary  JuridiiiSion  in  Caufcs  Ecclcfiaftical,  albcir  in  the  Civil  havr, 
■whence  th.itWord  (^Jrdinaiiu.s)  is  taken,  it  fignifies  any  Judge  amlioriied  to  take  Cognizance  of  L^aules 
Proprio  fuo  Tuve,  as  he  is  a  Magiftrate,  and  not  by  Way  of  Deputation  or  Dclcg.ition.  The  Word 
(Ordinary)  doth  chiefly  take  Place  in  a  Bifhop  and  other  Superiors,  who  alone  are  univerfal  <n  their 
Jurildiftions ;  yet  under  this  Word  are  compriv/d  alfo  other  Ordinaries,  vi?,.  Suc/i  as  to  whom  ordinary 
Jurildidtion  doth  of  Right  belong,  whether  by  Privilege  or  by  Cuftom.    Godolp.  Rep. 23.  cap.  5.] 

2.  As  if  tlje  SDrninar^  commann^,  tljat  no  Jfcntc  after  njc  Ijasi  Ijau 
a  CljtlD,  fl)all  tie  Cljurcljen,  if,  uiljcn  flje  comes  luitijnt  lije  Cljmcly- 
noor,  flje  tiocs  not  fenccl  noiun,  ano  niahe  fjer  ©rt?ond  tauiarostije 
Caft,  ann  alfo  come  nt  a  ©ail ,  tljisi  CouimanD  is  not  laiaful,  be= 
caiife  tijcre  is  not  anp  Cuftom  fince  tijc  KefDrmation,  nor  anp 
Canon  for  it ;  anH  alfo  tlje  Manner  of  churching  10  otQatncD  tip  rijc 
QBooU  of  Common  l^rapcr,  Wcl)  (S  confirmeo  bp  tijc  «dtatute  of  r 
El.  ann  t^e  £Drriinarj)  of  ijimfclf  ijas  not  aup  fiiclj  Isomer  to  impofc 
fuel)  neui  Ceremonies  upon  tljc  LaietP.  p*  20  31a.  is,  E»  in  one 
shipdaiu^  Cafe,  tlje  iBife  of  an  aioeru^ian  of  Boriuici),  uiijo  loas  ec-- 
camnninicaten  bp  tijc  Cijancellor  tijcrc  Cc  Officio  -,  refoi\jen  bp  lee 
aim  Cbambcrlaln,  contra  l^ougljton,  anu  Dap  gt\3cn  luljp  |5rot)i= 
bltion  fljouia  not  be  n;ranteti»   OBut  it  iuas  ftap'O,  became  it  tuass 

CCrttfie'D  bp  UiVierfCBlfljOpS  to  be  the  common  Cultom  oi  the  Church  of 
England. 

3.  It  was  agreed  that  the  Ordinary  in  his  Vifitation,  fhall  make  the  Pa- 
ripjiofurs  fiiJfaiH  their  Bells,  Or/iameiJls  Sc  Br.  Depolition,  pi.  2.  cites 
II  H.  4.  12. 


(R.  e)    *  Depofitlon.  And  what  fliall  be  Cmje  to  depofe. 

♦Deprivation  ^  ^  yjj:  jjj^  Abbot  aliens  his  Land  which  he  has  in  Right  of  the  Houfe, 

ffX5c'«,  tJe  fljall  be  +  nepofcn  as  a  Diiapidator  Domujs.  20  jp.  6. 46.  n  9 

Jure,  by      c»  4-  34-  aDjuUgeti  accotDiiislp  29  e.  s-  16. 

Clergyman  is  deprived  of  his  Benefice.  Degradation  is  an  Ecclefiaftical  Cenfure,  whereby  a  Clergyman 
is  deprived  of  his  Orders  It  is  otherwife  called  Depofition.  A  Sentence  may  not  only  be  given  for  this 
Purpofe,  but  the  Clerk  may  be  folemnly  ftripp'd  of  his  Clerical  Habit.   Wood's  Inll. 

fS.Ccited  9Rep.  98.  b.  Trin.  i5jac.inBagg'sCafe.— S.  C. cited  ii  Rep.  72.b.Palch.  i^Jac.  in  S19ag« 
Daltn  ColUgt's  Cafe,  cites  2  H.  4  5.  b.  and  11  H  6.  35E.  i.— :^  Br.  Depofition  &c.  pi.  4  cites  S.  C. 
II  Dilapidation,  by  the  Opinion  of  Lord  Coke  3  Inft.  204.'  is  a  good  Caufe  of  Deprivation;  but  Tome 
think  the  Authorities  he  cites  in  the  Margin  do  not  prove  it,  viz.  29  E.  3.  16.  Where  it  is  true  there  is 
not  one  Word  to  that  Purpofe.  And  3  H.  4.  3.  is  only  the  Opinion  of  Serjeant  Tyrwhit,  where  Thirn- 
ing  Ch.  ].  is  of  Opinion,  that  if  a  Bifliop,  Archdeacon  8cc  committed  Wafte  in  cutting  Wood  which 
they  had  in  Right  of  the  Church,  they  were  not  punifhable  at  Common  Ltw  ;  and  then  demands  of  the 
"Bar  how  the  Party  could  be  puniflied  in  the  principal  Cafe?  Whereto  Tyrwhit  anfwers.  He  fhall  be 
depos'd  as  a  Diiapidator  of  his  Houfe;  and  Thirning  replies.  Let  that  be  as  it  will,  (i.  e.  by  Common 
Law)  yet  by  the  Law  of  the  Land  he  is  not  punifliablc.     Notwithftanding  which  I  think  clearly,  th;t 


Prerogative  of  the  King.  2^^ 


at  Common  Law  an  Aflion  of  Wafle  lay  for  Dilapidations  in  Ecclefiaftical  Houfes  and  Buildings;  and 
that  therein  the  Place  walled  was  recovciable,  which  was  TaHtamount  to  a  Deprivation.  Watf.  Clerg. 
Law  54.  5;. 

And  in  the  q  E.  4.  34.  It  is  held  per  Moile  J.  that  if  a  Son  gives  nn  Abbot  &-c.  I  o  1.  to  pray  for  the 
Sold  of  his  Father,  and  he  fpcvds  the  Money,  he  fliall  not  be  deprived,  bccaufc  he  received  the  Gift  in  Jure 
Proprio  (or  in  Jure  Perlbns)  but  if  he  aliened  &c.  any  of  the  Abbey  Lands,  he  might  be  deprived  j  for 
thofe  he  had  in  Jure  Donius.  And  it  fcems  to  me  there  is  the  like  Reafon  for  a  Deprivation,  where 
Walle  is  done  in  Houfes  or  Lands  held  in  Jure  EcclefiE.    Watf.  Clerg.  Law  ;;. 

Tho'  in  Equity  Deprivation  may  well  belong  to  Dil.ipidators,  yet  that  it  hath  ever  been  inflifted,  ap- 
pe.Trs  not  by  any  Thing  that  is  alleged  either  out  of  the  Books  of  Common  or  Canon  Law,  which  fpeak 
only  of  Alienations.    Gibf.  Cod.  1116. 

2.  Before  the  Statute  iS  EL  cap.  7.  U  ax\  Jnciimlicnt  fiat)  \stt\\  con-  Hob.  zRS  to 
vicled  by  Veidift  of  Homicide,  mill  tOUlO  not  ^mq.t  liimrclf  Of  It,  tl)i0  ^9+  ^  ^■ 
ftaD  been  Canfc  of   Drpnuation.     %x\\\,    15  fa.  15,  m.  litttoccn  ^^'""^^'^'^  ~ 
"Serle  and  IFilliams,  HDCl' Clinam,  for  fic  Wasi,  Cnminofus.  S.'c.  b/^  ' 

3.  But  otfiertoife  it  ftail  been  if  %t  had  purged  himfelf  thereof,  a0  Name  of 
toasJ  agretti  in  tFie  fame  Cafe  SearPs  Cafe. 

4.  But  now  tfeo'  tfic  Purgation  be  taken  away  by  18  El.  cap.  7.  pet 

tfte  Crime  remains,  anD  tJje  Contjiaion  bp  tlernia  of  ^omuitie 
ftall  binU  Sim,  anb  fo  Be  map  be  tiepriljeti  for  iu  '^u  1 5  la*  15,  IR, 
bettoeen  Serk  and  IVilUams.  IRefolpeD  per  totam  Cmim,  anb  pro- 
fiibition  benicD,  Contra,  iTJitg,  27,  28  <^\,  15,  3Rotulo,  2574,  be= 
ttoeen  Nichols  anb  Chafe.    proBibition  benicb  in  futlj  Cafe, 

5.  3f  a  IDarfon  fpeaks  againft  the  Book  of  Common  Prayer  clfa= 
bliGjeb  bp  t\)t  ^tutmt  of  i  El.  -^Dgig  i0  goob  Caufe  of  IDcpriuation 
bp  tBc  Ctclcfiaffital  iiato,  toitfiout  anu  '^\\i  of  tBe  faib  Statute  -,  for 
ge  to&o  rpeafes  againft  tje  jDcatc  anb  ©uiet  of  tfie  Cfiurtg  i0  not 
iDortBp  to  be  a  ^iDoijernour  of  tlje  Cftuttfi,  Co.  5,  Cawdry'$  Cafe 
5,  b,  abiubg'bf  3nb  fame  Cafe,  37  CI,  116,  IR,  Cawdry  anb  A£fon, 
tW  it  toagt  obimeb  tfiat  it  toafii  but  Malum  Prohibitum.  Snb  t%i^ 
potocr  of  SDcpriuation  10  not  tafeen  atoap  bp  tfie  faib  Sft  from  tge 
iSDrbinarp  for  tge  firff  £)ffente  being  in  tfie  affirmatibe,  Snb  alfo 
tfierc  i0  an  ejrprcfs  iBrofaifo  )coW\i  eyteptsJ  it,  Co,  5,  Cmvdry  5. 
jabiubgeb, 

6.  By  the  Common  Law  there  are  tv}o  Sorts  of  Degrading ;  on  Sum- 
mary, by  Word  or  Sentence  only  •,  and  the  other  Solemn,  by  diverting 
the  Party  degarded  of  thofe  Ornaments  and  Rights  which  are  the  En- 
figns  of  his  Order  or  Degree.     Gibs.  Cod.  1 104. 

7.  The  King  without  Parliament  may  make  Orders  and  Conftitutions  S.P.M0.755. 
for  the  Government  of  the  Clergy,  and  may  deprive  them  if  they  obey  not.  P     ^^^\    ' 
Cro.  J.  37.  at  an  Aflembly  of  all  the  Judges,  and  of  the  Archbifhop  of  sfj'r.Cham- 
Canterbury,  Bifhop  of  London,  and  divers  of  the  Nobility.  ber. 

8.  *  Herejy,    Schifm,    Ir religion.    Perjury,     and   Excommunication    are  »  -^sS.  51, 
good  Caufes  to  deprive  a  Clerk  ;  fo  of  Homicide,  if  he  be  attainted  and  pi.  ig.  Per 
not  pardoned  -,  otherwife,  if  pardoned  ;  for  Pardon  reftores  him  to  the  Bendloes. 
Benefit  of  Law.     Jenk.  259.  p.  55.  cites  Hob.     Searle's  Cafe. 

9.  It  was  refolved,  that  if  Bifhop,  Archdeacon,  Parfon  &c.  abates  all 
the  Trees,  this  is  good  Caufe  of  Deprivation.  11  Rep.  98.  b.  Trin.  13. 
Jac.  B.  R.  in  Bragg's  Cafe  -,  and  cites  2  H.  4.  3.  b.  accordingly, 

10.  Where  a  Statttte  makes  it  a  Part  of  a  Bifhofs  Office  to  tender  Oaths 
on  Ordination  of  any  Perfon,  if  the  Bifliop  difobeys  it  is  good  Caufe  of 
Deprivation  ;  and  then  the  Metropolitan  may  proceed  againft  him  for 
doing  contrary  to  the  Duty  of  his  Office,  but  not  to  punifli  him  as  for  a 
Temporal  Offence.     12  Mod.  239,  240.  Bifliop  of  St.  David's  v.  Lucy. 

1 1.  Mifapplying  Revenue  is  Cauie  of  Deprivation.  12  Mod.  240.  Mich. 
10  W.  3.     Bifhop  of  St.  David's  v.  Lucy. 


N  n  n  (S.  e) 


"— -—  II  -  r  II  •  i-  I  -  -  '  '  '•'  "  '  ■■  ■  ■       -— .1-1-1  ■■  I 

2^4  Prerogative  of  the  King. 

Foi.  223.     ^s.  e.)    *  Guardian  of  the  +  Spiritualties.     The  Guar- 
•ThePo'^er      diaii    of   thc    Spiritualties.      fVho    is    of   Common 

and  Jurifdic-  -ry  •    1  , 

tion  of  this  Klgnt. 

Office  in  the 

Church  is       j^  /^jF  Common  iRigfit  the  Dean  and  Chapter  is  <IDuart)ta!t  of  tjje 
LTwas'Tn''       VJ  g>pitituaIriC£J  of  the  Metropolitan  til  %mt  of  ffilacatioii, 

Ufe  before 

the  Time  of  E.  I.     This  Ecclefiaftical  Office   is  in  Being  immediately,  upon  the  Vacancy  of  an  Archi- 

epifcopal  See,  as  when  a  Bifhoprick  happens  to  be  vacant.     Godolp   Rep.  m  the  Introduftion  9. 

f  Spiritualties   are   all  Manner  of  Jurifdidions  of  Courts  ;     As   to  grant  Adminillrations,  to  prove 
Wills,  to  grant  Licences  to  marry  &c.     Sav.  52.  Pafch.  25  Eliz.  Anon. 

Of  Common  2.    Of  inferior   Bifhopricks    in   Ctme   of    tHatation   the  Dean    and 

Right  by  the  Chapter  of  the  See  of  Common  IRiggt  i0  dDuattiian  of  tJ)c  a>ptrituaU 

Law™the  "f^'  ^"'^  "*•*  *6^  .Metropolitan,    Contra,  31  ^^.  6.  10,    aomitteij. 

Dean  and  £5ub.  ij  €.  3,  23,  b,    3nti  tf^ttt  It  10  faiU  bp  S>touf,    Cgat  in 

Chapter,  Se-  Ciittc  of  111,  !♦  ctiiti  altoap0  before,  tfie  fpctropolttan  tea0  CDuartitan 

de  vacante  x\\\  fgf  %mt  of  !^,  3,  aiiO  tgcn  bp  2Dcfault  CompoKtion  toasf  tafeeii 

of  the  Bi-        r^„  it. 

„     ...     tor  It, 

Ihoprick,  is 
Guardiin  of 

the  Spiritualties,  as  appears  T.  P.  17  E.  3.  23.  but  now  the  Archbiihops  have  ufed  to  have  this  by 
way  of  Compofition,  as  Great  Lords  will  incroach  all  into  their  own  Hands.  Per  Coke,  Ch.  Juft. 
But  by  Doderidge  every  Archbilhop  is  Guardian  of  the  Spiritualties  of  all  the  Bilhops  within  his  Pro- 
vince, but  fede  Vacante  of  his  own  Dioccfe  the  Dean  and  Chapter  thereof  is  Guardian  of  the  Spiritual- 
ties. Coke  faid,  that  this  commenced  by  way  of  Compofition,  but  that  originally  it  was  not  fo,  but  the 
Dean  and  Chapter  was  Guardian.  But  Doderidge  faid,  It  does  not  appear  fo  by  our  Books,  no  Men- 
tion being  made  of  any  fuch  Compofition,  but  that  the  Guardian  of  the  Spirituallies  is  to  be  according 
to  the  Difference  between  a  Province  and  a  Diocefe.  3  Bulft.  176,  177.  Pafch.  14  Jac.  in  the  Cafe  of 
Grange  v.  Denny. 

inaProhibi-      3.  5  (2;,  2,  ©uarc  Jmpelitt.  165,  atmittcb,  tgat  biiring  tge  caa- 

A°"t,{,'^^         tancp  of  tSe  Bilioprick  of  Durham  the  Archbifliop  of  York  is  dDuar^ 

beaded  a°^    ^^^^  of  f6«  §>piritualtic0, 

P-efcription, 

Thai  he  and  his  Predeceffors  have  Time  out  of  Mind  been  Guardian  to  the  Spiritualties  of  the  Bifhop- 
rick of  Durham,  fede  Vacante;  and  IlFue  was  joined  thereupon,  and  tried  at  the  Bar  this  Term.  Hale 
faid,  De  jure  Communi,  the  Dean  and  Chapter  were  Guardians  of  the  Spiritualties  during  the  Vacancy 
as  to  Matters  of  Jurifdiftion  ;  but  for  Ordination  they  are  to  call  in  the  Aid  of  a  Neighbouring  B:fhop, 
and  fo  is  Linwood.  But  the  Ufage  here  in  England  is,  that  the  Archbifliop  is  Guardian  of  the  Spiritu- 
alties in  the  SufTragan  Diocefe,  and  therefore  it  was  proper  here  to  join  the  IfFue  upon  the  Ufage. 
There  was  much  Evidence  given,  That  anciently  during  the  Vacancy  of  Durham  the  Archbifhop  had 
exercifed  Jurifdiflion,  both  Sententious  and  other,  as  Guardian  of  the  Spiritualties  ;  But  fince  H.  Sth's 
Time  it  had  been  for  the  moft  Part  adminillred  by  tlie  Dean  and  Chapter.  And  the  Verdifl  was  here 
for  the  Dean  and  Chapter,  i  Vent.  225.  Mich.  24  Car.  2.  B.  R.  The  Dean  and  Chapter  of  Durham' 
V.  the  Lord  Aichbifhop  of  York. 

4.  23  C%  I.  IRot,  Clauf,  ^nnfa.  4,  Prior  de  Ecclefia  Chrifti  Can- 
tuar.  cIDuariDian  of  tfie  §>pirttualtic0  in  '^Lirnc  of  tElatatton  of  the 
Archbifhoprick. 

5.  ^f  tfie  arcBbiftopritU  of  Canterburp  the  Dean  and  Chapter  is 
dDuarbian  of  t^c  §)pivitualtieei  in  '^imt  of  Qlacation, 

Where  the  6_  Qf  the  Archbilhoprick  of  York  the  Dean  and  Chapter  is  i©uarbi= 

"^fTorf ?/''''  ^"  ^^  '■^^  ij>piritualtie0  in  '^Timc  of  aiatation,  anb  not  tJ)c  artJjbiftop 
voiI,\h'^ Me-  of  Canterburp,  becaiife  it  10  a  biaiiia  proinncc,  anb  not  fuborbii 
tropoiitan  nfltE  to  tJiE  art^btftop  of  Cantcrbwp,  Contra,  31  i?.  6,  10.  ab= 
jjiaii  have  mittetj  5  for  tfiere  a  parfon  of  tfie  ©robinte  of  |.ioih  bab  atb  of  tgc 
the  Spiritual-  ii^^xx^-^xiWt^w,  0uarbian  of  tj)e  fepiritnaltics  of  t^c  SiigbiJ^op  of 
TheKirg  the   i^oJ^^  »"  ^""^^  of  aiatantp  of  tfie  ilrcfibinsopricfe, 

Temforalties 

as  of  other  Bifliopricks,  and  if  Aid  be  to  be  had  by  a  Parfcn  of  the  Archbifhop  of  York  at  that  time, 
he  fhall  have  it  of  the  Metropolitan  ;  And  fo  fee  that  Canterbury  is  a  more  High  See  than  York,  and  it 
feem?  that  at  that  Time  he  may  commit  the  Adminirtraticn.    Br.  Ordinary,  pi  2a.  cites  31  H.  6.  10. 

7.  The 


Prerogative  of  the  King.  2'^s 

7.  The  Church,  when  Difdiocefan' d  by  Death,  Tranjlation,  or  other-  Latch.  237 
wife,  or  Quafi  Viduata,  whilfi  the  BiJI:op  is  employed  about  Tranjmarine  ' 
Negotiations  in  the  Service  of  the  King  or  Kingdom,  the  Law  takes 
Care  to  provide  it  a  Guardian  Qiioad  Jurifdidtionem  Spiritualem,  du- 
ring fuch  Vacancy  of  the  See,  or  remote  Abfencc  of  the  Bifhop,  to  whom 
Prefentations  may  be  made,  and  by  whom  Jiijliiutions,  Jdmijfwns  &c. 
may  be  given  ;  and  this  is  that  Ecclefiaftical  Officer,  whether  he  be  the 
Archbifhop,  or  his  Vicar  General,  or  Deans  and  Chapters,  in  whomfoever 
the  Office  refides,  him  we  commonly  call  the  Guardian  of  the  Spiritual- 
ties.    Godolph.  Rep.  in  the  Incroduiftion,  pag.  9. 


'  See  Aid  of  a 
Common 


(T.  e       Guardian  of  the  Spiritualties.     TVhat  Thing  p^^"^^"  (Y) 

he  may  do.  (Z)  pi.  i. 

T 


^Ct  dDuartjian  of  tjic  ^pjritualticjJ  map  Admit  and  Inftitute.  s.  p.  Arg, 

Cafe  of  Evans  v.  Afcough, 


2.  2  CD,  I,  IRot.  pan  ipemb,  5.  The  King  prefented  to  the  Guar- 
dian of  tijc  ^pxritualticjS  of  the  Archbifhoprick  of  Dublin  in  3il'Cla»&. 
^eOe  bacantc,  for  a  Church  in  Ireland. 

3.  C^c  dDuarDian  of  t&c  ^pirttualttfg  (fiall  try  Baftardy,    41  an.  Trial  (U.) 

4.  22  C%  I,  llot,  (Claufo  ^cmb,  n.  j©orfo»    Letters  tJicettcd  to  ^  '  *^'  ' 
all  tfie  115tfl)Op0  to  make  Orizons  for  the  Journey  of  the  King  into 
France,  nnti  in  tBc  tlatantp  to  t&c  dUuartiian  of  tfic  Spiritualties* 

5.  23  e-;  I*  iRot,  Clauf,  ^emb,  4.  ^mt  CttlcfiEe  (JDgtiffi  Can* 
tuatf  dDuai-Dian  of  tfie  Spiritualties,  in  JHacantp  of  tge  fame  ^rtg* 
bifljopritfe,  had  a  Felon  delivered  to  him. 

6.  Debt  lies  againjl  the  Guardian  of  the  Spiritualties,  as  Ordinary  in 
the  Time  of  V.ication.  Br.  Ordinary,  pi.  24,  cites  17  E.  2.  and  Fitzh. 
Brief  822. 

7.  The  Guardian  of  the  Spiritualties  fliall  try  the  IflTue  of  Able  or  Not 
Able  in  Quare  Impetit  between  the  Plaintiff  and  the  Biffiop,  where  the 
Archbifhop  is  dead  and  the  See  void,  and  the  Biffiop  refufcd  the  Clerk. 
40  E.  5.  25.  b.  pi.  32.  Daubeney  v.  the  Bifhop  of  R. 

8.  Guardian   of  the  Spiritualties   cannot  confirm  a  Leafe.      Per  Noy  ^*'5.'*- ^37- 
Arg.  Palm.  461.  Trin.  3  Car.  B.  R.  in  Cafe  of  Evans  v.  Afcough,  cites 

7H.  4.  97. 

9.  25  //.  8.  cap.  21.  5.  16.  Enafts  that  //  the  Archbifiwprick  of  Canter-  J^^  ^'^^'- 
hiiry  be  void,  then  fuch  Manner  of  Licences,  Difpenfations,  Faculties,  In-  sp^^tualtie! 
firuments,  Refcripts,  and  other  Writings,  which  may  be  granted  by  Virtue  have  all 
ayid  Authority  of  this  A£l,  fhall  {during  the  Vacation  of  the  fame  See)  be  had.  Manner  of 
done  and  granted  under  the  Name  and  Seal  of  the  Guardian  of  the  Spiri-  Jurifdiftion 
tualties  of  the  faid  Archbifljop  for  the  "Time  beittg,  and  fhall  be  of  like  Force  ^^^,1^^  ^ 
and  EffeB  as  if  they  had  been  granted  under  the  Name  and  Seal  of  the  Arch-  ,j,e  pj^f^  (^f 

hifJoQp.  granting  Li- 
cence! and 
Difpenfatlo!:s,  Probnte  of  Wills,  AJminiftrntions  &:q.  during  fuch  \'arancy,  and  of  Admitting  and  hjlitut- 
ing  Ckrhs  prefented  to  them  ;  but  they  cannot  (as  fuch)  Conjecr.v.e  or  Ordain,  or  Prefent  to  vacant  Bene- 
fices,   Wood's  Inft.  27. S.  P.  Godolph.  Rep.  in  the  Jnti&duftion  9.  10. S.  P.  Godolp.  Rep.39. 

40.  cap.  4.   S.  I.  2.  3. 

S.  ij.  And  if  he  flmll  refufe  to  grant  fuch  Licences  (^c.  where  by  Law  they 
ought  to  be  granted,  in  every  fuch  Cafe  the  Lord  Chancellor  of  England,  or 
Lord  Keeper  of  the  Great  Seal,  upon  Petition  and  Complaint  thereof  to  him 
made,  may  ifftie  his  Majejly's  Writ,  direSied  to  fuch  Guardian  of  the  Spi- 
ritualties, requiring  him  by  Virtue  of  the  faid  JVrit,  under  a  certain  Pe- 
nalty therein  limited  by  the  faid  Lord  Chancellor  or  Lord  Keeper,  to  grant  the 
fame  in  due  Form  of  Law ;    otherwife  (and  no  jufi  and  reafonable  Caufe 

fkewn 


2^5  Prerogative  of  the  King. 


Ojewn  for  fuch  Reftifal)  the  [aid  Penalty  may  be  incurred  to  his  Majejly,  and 
a  Commiffion  under  the  Great  Seal,  ijjued  or  two  fuch  Prelates  or  Spiritual 
Perfons  as  fliall  be  nominated  hy  his  Majejly,  impowering  them  by  Virtue 
of  the  /aid  A.I  to  grant  Pach  Licences  i^c.  as  were>  reiufed  to  be  grant- 
ed by  the  Guardian  &c.  as  aforefaid. 

10.  The  King  prefented  to  a  Prebend  then  void,  the  Temporalties  king  in 
his  Hands  fede  vaeante,  and  before  Injlitution  the  King  repeals  his  Prcfenta- 
tion  ;  Notwithftanding  which  the  Dean  and  Chapter  being  Guardians  of 
the  'spiritualties  fede  vaeante,  inptute  and  injlal  the  Prefentee.^  After- 
wards the  King  reciting  that  the  Prefentee  was  in  Canonice  inftitutus 
ex  fua  Prsefentatione,  ratifed  aird  confirmed  him.  He  died  Incumbent  ; 
in  the  mean  Time  a  Bifloop  is  created.  The  King  lliall  have  the  Prefenta- 
tion  again  •,  for  he  was  not  in  Ex  Prsefentatione  Regis,  and  confequent- 
ly  the  Confirmation  void  ;  and  Judgment  was  given  (ut  dicitur)  for  the 
King.  But  the  Reporter  fays,  Qusere  if  it  be  necelTary  to  allege  that  the 
Repeal  was  fhewn  to  the  Guardians  of  the  Spiritualties  before  the  Infti- 
tution  &c.  fo  as  they  might  have  Notice  thereof,  as  of  a  new  Commif- 
fion  &c.     D.  292.  pi.  70.  Trin.  12  Eliz.  Anon. 

11.  In  a  Quare  Impedit  the  Plaintiff  recovered,  and  had  Writ  to  ad- 
mit his  Clerk  directed  to  the  Dean  and  Chapter,  Guardians  of  the  Spiritual- 
ties, the  See  of  the  Biflioprick  being  then  vacant,  which  is  not  return- 
able ;  and  before  Execution  of  the  F/rtt  a  Bifhop  is  created.  It  was  doubted 
whether  the  Authority  to  execute  the  Writ  be  ceas'd  in  the  Dean  and 
Chapter  ;  and  it  feems  that  upon  a  Suggeftion  made  to  the  Court  of  this 
Matter,  Eo  quod  nihil  adum  fuit  in  Breve  prsedifto,  another  Writ  may  be 
awarded  to  the  Bifhop,  and  may  be  returnable  if  it  pleale  the  Party  &c. 
D.  350.  pi.  19-  Pafch.  18  Eliz.  Anon. 

12.  In  Cafe  of  Deprivation  for  not  reading  the  Articles  of  Religion,  as  re- 
quired by  Statute,  the  Notice  to  the  Patron,  in  Cafe  of  the  See's  be- 
ino-  vacant,  ought  to  be  given  by  the  Guardian  of  the  Spiritualties,  to 
make  a  Lapfe  accrue.     D.  379.  b.  pi.  54.  Pafch.  22  Eliz.  Anon. 

13.  It  was  a  great  Queftion  upon  a  Demurrer  in  Law,  If  a  Lapfe  de- 
volves  to  the  Ordinary,  and  within  thofe  6  Months,  the  Ordinary  is 
tranflated  to  another  Bifhoprick,  If  the  King,  or  his  Metropolitan,  Ihall 
prefent  to  that  Lapfe,  in  default  that  the  Patron  does  not  prefent.  Noy 
Attorney  faid,  That  the  Warden  of  the  Spiritualties  fhall  prefent,  who- 
foever  he  be.    Noy  69.  Anon,  cites  Dyer  78.  pi.  103. 

It  ceafes  i^.  When  the  Bifhop  is  confirmed,  then  the  Power  of  the  Guardian  of 

^v"(  ''V*  ^^^  Spiritualties  ceafes,  and  he  may  confccrate  Eleds,  confer  Orders  &c. 
the  c"«^J       Lat.  246.  in  Cafe  of  Evans  v.  Afcough, 

d'EJlire.     8  .    ^.  ,        , 

Rep.  69.  in  Trollop's  Cafe. The  Books  of  Common  Law  differ  much  concernmg  the  Tirr.e  when  the 

Tower  of  the  Gunrdinn  of  the  Spiritualties  ceafei,  and  that  of  the  Bilhop  commences.  Some  fay,  upon 
the  Eledlion  of  the  Bilhop,  others  not  till  Confirmation.  And  again  others,  as  to  all  Minifterial  Adls, 
upon  Eleflion  ;  and  as  to  Judicial,  upon  Confirmation.  But  as  the  Matter  is  underllood  and  praftis'ti 
at  this  Day,  the  Power  of  the  Guardian  of  the  Spiritualties  ceafes  t;ot  till  Confirmation.  Gibf.  Cod.  132. 
15  J. — Godolp.  Rep.  in  the  Introduftion,  pag.  9.  fays  it  ceafes  as  joon  as  /i  new  Bifipop  is  conjecrattd  to 
that  See  that  was  vacant,  or  otherwife  tranfiated,  who  needs  no  new  Confecration. 


(U.  e)      Ecclefiaftical  Courts.     High  Commiffion. 
i.T3l^  t5c  iDtotcf0  of  &ai-um,  toitfein  tlje  |l?amkt  of  g>affciton,  iss 

1.    a  Chapel  of  Eafe,  tohtcf)  10  within  the  Parifh  of  Trowbridge,  anO 
in  tolntF)  Cftapel  the  Parlbn  of  Trowbridge  had  ufed  to  find  a  Chaplain 

to  fap  £'it)ijic  &cri)tfc  for  tge  Snfiabitants  of  t^e  ^amlct,  %\yt  par. 
fon  of  "(ZurotobnDgc  refufed  to  find  one  to  fau  SDiuiuE  ^crbiie  accori)= 
inglp  ;  ^c  map  be  fueD  for  xW  before  x\yt  l^igli  CommifDon ;  for  tfio* 
it  be  not  anp  of  t&e  great  Crorbitant  £'ffencf0,  pet  tl)i0  £)flfence  10 
publitfe,  antr  not  pribatc ;  j^or  \yt  refufea  to  celebrate  oitjinc  ^erbice, 
^,  6,  3a»  315,  bettoeen  Sir  J.  Unieux  and  Paller.  Contra  J0.  6»  S,  3ie, 

2«  a 


Prerogative  of  the  King.  237 


2,  d  pntfcn  may  lie  UicD  in  tlje  fpigO  Conmnrfiuu  Court  foe 

nrcaching  au,ainll  the  Book,  of  Coiumou  Prayer^  and  iviuling  to  cele- 
brate divine" Service  according  to  it  ;    JfOt  it  IS  A  PUbllCk  QfFCllCC* 

A'JmineM's  Cafe.   \^tX  ClUUim  aajUOiTCO. 

3.  (;i  C^aU  cannot  lUe  a  contract  oF  Marriage  llCfOtC  tl)C  Dilj!)  COn:= 

nnroomTj^ ;  QSccaiuc  rljiSJ  is  a  civil  Cauie,  ano  from  tijctr  €-)cntcncc 
na  imtiii  \\i%,  i'p*  s.  ^a»  X^«  bctiuccn  c7///wy!'  and  Huutky,  Ucrol'ucUj 
ano  1  Oroljiiiiiou  RuiutcQ, 

4.  a  Divoae  cauiiot  nc  fitcti  l3Cforc  t!)c  Di!};fjCommirfiancr0,  l!5e= 
caurr  \t  ijs  a  <  i^i  Matter,  ano  not  cnr.iinai,  anD  tijcrcforc  a  DiUorce 
cannot  be  iucn  Ixfore  tijcm  iX^eaiufcno  Appeal  can  lie  fuet!  tljcrrupon 
tl}C^'  I'tiii:-  roe  ijigijeir  Court  i  But  engirt  to  be  before  tDc  ©rOiUaip. 
^:^:n.  'i3v  per  Curjani,  ana  j ^roijiuition  sranten  accoroinivlp* 

5*  il  O^iin  cannot  be  tun  in  tijc  oi^b  CoinuuTfion  for  tbc  Prof;i- 

nation  .^fthe  Sabbatii,  bUt  uUlXiJt  tO  UC  !UeO  fOt  It  bCfOtC  tljC  ©tCtnarp* 

£i?.s.  la.  03  >  pcrCurianu 

6.  8)0  aC13an  cannot  L'e  fueD  tberC  for  carrying  of  Wood  upon   a  Tn  Atme^e's 

Hoivdav,  as  ^t*  luUe'sDap,  X^ut  ouiTbt  to  be  fuet!  before  tljeV^''"^^ 
£)rmnarD~  £9»  8. 3a.  \v  Aiimer'^^  Cafe,  per  CooK\  the'^iioic""' 

7.  So  a  ^an  ibail  not  be  fuc3  t()ere  fjr  Keeping  ot  Open  shop  upon  a  cmrt  of 
DalPOfiP.  ^.  8.  :ia.  03.  ""^  E-^ciie--^ 

*-       "  _  quer,  judicl- 

a'ly,  refolved  rhat  the  H'^h  C(>m!-ni'Tionei-s  could  not  vunidi  any  Man  for  %•:!>•*;>?•  on  a  Ho.yihy,  albei: 
it  be  a  Matter  of  Ecclefiafti;al  Conufance,  but  ought  by  thi  true  Meaning  of  the  Statute  of  i  tlix.  to 
be  puiiifhed  by  the  Diocefan  4  Inft.  532. 

8.  djC  Vicar  of  the  Church  of  D.  caiUlOt  fue  the  Parfbn  of  the  fimc  Nov  149  S.C. 
Church  ('il3(:a  I)a0  tlje  Advowfon  appropriate)  befOtC  tIjC  t>\m  CO.ll^  " -^- ^-'-"'''=^^ 


&i  Tuuni, between  l^artp  anu  Partp,  anu  tiic  a>tatutc  ot  34  «.  s.  ;j™«° 
W  oroameUtbatSuitanmybeforfucOl^cnfionssm  tijc  Court  ofKo;^'_,, 

tljC2)rDtnarp.  C23.  5.  5.  B»  B*  bCtUSCCU  Ropa  and  Bulbrokc  aOjUtigCD  Kep,4,-  sc 

per  Curiam.  %  Name  of 

oir  Anthony 
RoperV  Cafe  fays  it  was  rcfolved,  That  the  faid  CommifTioners  had  no  Authority,  nor  Commiffion  in 
the  faid  Ca-e. 

9.  ''^f  one  fue0  another  in  tfje  Tpisb  Commtrfion,  for  not  landing  at 

the  B  ehearlal  cfthj  Crcwd,  tUiflttlUS-.ind  laying  that  the  C\)nltiiuiions 
of  -he  l-ilhop   -Acre  not  Lci^e  Di\ir,a  (a  fiJrOijlbltiOU   UHU  bC  graUtCDj 

ticcflufe  if  19  mt  aitp  Cnormou^  SDftcnce.  $p.  s.  3ia.  'B.  jomc/'ji 
Cafe,  per  <rtiruv;vu 


belonfiij  totbe  ©rcinar})  of  tije  place  lubere  tjc.Q9. 17.  €au  15.  per  ch  j.  raid 
Curiam  betuicfn  *sirf.dw.Powe/j  aiitibio  J0ifc,a  |3roljibition  granteD.  f£f^sf> 
loetujcen  OoUnj  nno  I}id  naife  proijibition  lininttu.  T^etiuecn  &i\:  precedents 

EdniMd  Pk-^den  anti  iJlO  IBlfC  90.  8.  t%  KOt.  912.  Lanj^ton's  Cafe  [3).  thaitheHi^h 
8.  Ja.  EOt.  109.   Mnlton't^  CufC  I[)l!l.  8.  Ja.  UOt. Enryty^   CaJC.  Comnninon 

^.  4.  car.  Eot.  1603.  *^'/'3'^'^  Cafe  Q^icij.  4  Car.  $^aPle'0  Office,  S^%^;'f,. 
i«^/&'5  Cafe.  auT!  tberefore  m  mn  lauise's  '^ime,  it  teay  reron.icti  n,onyrard 

nionp : 

for 

grantet). 

[tuere]  taileiJ.  exprcnidi:i 

their  Coin- 
minion,  that  it  does  notmake  it  Law  if  it  be  not  within  the  Statute  of  i  Eliz  to  which  Crawley,  Keeve, 
and  FclK-r  J.  agreed;  And  thcv  all  agreed.  That  they  may    as  well  charpc    mv  Lard  v,ith  a  Kent- 
QiaiTc,  as  Grant  Alimonv  out  of  it. ^i  i  ''  ^T  5*5,   59,  60.  Mich.  6  Jac.  S.  C 

Ooo  II-  The 


'ij^> 


2C^8  Prerogative  of  the  King. 


ThcHi"h  11    The   High   Commillion  Court,    which  was  erected    iii\irtue  of 

Commillion    ^  jv]  ^.^p_  j g,  being  aboiiilied  byStat.  i6.  Car.  i  cup.  ii.  the  Extenc  and 

CaufcVEc-    Exercife  of  that  Authority  an  how  A-I.tttcrs  of  mcra  SpeaiLitioit^  and  Cu- 

clcfuftical,    riofity  ;  and  therefore  it  may  only  be  obfcr\ed,  in  general,  that,  while 

was  by  Let-  that  C'liirt  fhodj  there  were  many  and  great  Contcjls  between  it  and  the  Courts 

tcrs  Patents,  ^y   ^yi„iinjier  -  Hall    concerning  the  Extent  of  the  Jnrifdiciion  alfigned 

Forcc^aml    ^^d  limited  by  this  Aft  j  The  Commiinoners,  on  one  hand,  not  conhning 

Virtue oFtlic  themfelves  to  fuch  Crimes  as  might  properly  becalLd  Enormous  (Herefy, 

Statute  of  I    Schilm,   Polygamy,  Inccll,  and  Rccufancy)    but  t.iking  Cognizance  of 

,^'""^^'', '■  Adultery,  Alimony,  Detamation,  Laying  violent  Hands  on  a  Clerk. 

whereof  i!     Miftjehaviour  of  Clergymen  in  their  Functions,  and  the   like,   theCog- 

An  Aft  i-e-   nizance  of  which,  the  Judges  affirmed  to  belong,  of  right,  to  the  itand- 

ftonng  to      ing  Eccleliaftical  Courts,  and  not  to  be  Eiormities  witnin  the    Meaning 

theCiov.n    ot  this  Statute ;  alledging  further,  that  the  Exercife  of  Jurifdiction,  in 

Tm-ii'aif^'i^n  '•^^^^  ^""^  '•'■'^  ^''^^  Cafes,    by  the  High  Commilfioners,  would  not  only 

tcclefiaf-      prejudice  all  the  Billiops  of  England  in  their  Eccleliallical  Jurildiction, 

tical  Seethe  but  would  be  alfo  grievous  to  the  Subjetl,  who  mull  be  drawn  up  from 

High  Com-  all  the  remote  Parts  of  the  Realm,  when,  before  their  own  Diocefan, 

micliT^if     "^'""^y  'Ti'gh'^  receive  Juftice  at  their  own  Doors.     Much  of  this  kind  is  to 

'they  were     be  met  with  in  the  Reports  of  that  Time,   particularly  in  my  *    Lord 

competent,    Coke  ;  who  ftrenuoully  reJilted  the  Encroachments  of  the  High  Commif- 

that  is,  if     j-^^j-, .  ^^^  ]-|g^  ^;^(j  ,-(-,2  other  Judges,  reftrained  them,  in  many  Inllances, 

SulrituTr      ^y  Prohibitions.  Gibf  Cod.  50. 

Perfons,  . 
proceed  to  Sentence  of  Ex-communication  What  the  Power  of  this  Court  was,  and  whether  tiiey  might 
m  Caufes  Ecclefiaftical,  proceed  to  Fine  and  Imprilonment,  is  at  large  examined  by  the  Lord  Coke  in 
the  4tli  Part  of  hts  Inftitutes,  where  he  reports  the  Judgment  and  Rcfohitions  of  the  whole  Court  of 
Ccinimon  Pleas  thereon,  Pafch.  9  Jac.  Reg.  upon  frequent  Conferences  and  mature  Deliberation,  fet 
down  in  Writing  by  the  Order  and  Command  of  King  James,  likcwife  whom,  and  in  what  Cafes  the 
Ecclefiaftical  (Jourt  may  examine  one  upon  Oath,  or  not  (there  being  a  penal  Law  in  the  Cafe)  and  whe- 
ther the  Saying,  Quod  nemo  tenetur  feipfum  prodere,  be  applicable  thereunto.  Godolph.  Rep.  I  iS.  cap. 
1 1.  S.  14  cites  Trin.  i  5  Jac.  B.  R.  Burroughs,  Cox  &c.  againft  the  High  Commiflioners,  Bulftr.  Par.  5. 
5  Bulft.  40.10  54. *  See  the  12.  and  13  Reports  throughout,  &  4thlnl1:.  324:0535. 


(X.  e)  Convocatmi  of  the  Clergy.  \?ower  of  Convening.] 
Refoived.    i,  T^  j|)  e  arcljUinjop  of  Catttcrburp  cannot  IjoiD  a  Council  for  \)\& 

Tr.SJa.  i    J^rODiltCC  lUitljOtlttlje  King's  Licenfe ;  jf  or  fuel)  CGUUCU  i)ClII 

voc'ad'on  '  Up  ij^ulicrt  atcWJtfljop  of  Canterbury  toas  proljibitcn  bp  Jftt?  "i^tm 
cannot  af-  cijisf  Iiiftlcc,  bccdufc  l)C t)a5  not  tlje  i^uig'.s  Licence ,  Oiut  Ije  tyoulD 
femhh^x     not  obep  it*  ^ceo*  4^ 7* 

theirconvo-  ^^  13,  ^l*  3.  Rot*  l^atU  ^.  u  Ctjctc  Id  s  UBri't  for  a  Can^acn= 
run/rrj-tionoftljeClergpottiK  province  of  Cantetburp  *at  paul'^,  am 
the  King.  z.  anotljerfortljcotbcrof^orh,  ©ine  @»tatute  25  h.  s.cap.  19.  where 

Mor  after  the  Clergy  of  England  acknowledge,  that  the  Convocations  of  the  lame 
their  Af-      ciersv  is,  and  alwavs  hath  been,  and  ought  to  be  alfembled  only  by 

icmhlv  con-      ,      ,p.-      =     \if   •. 

y.r. /J..«/Zi- the  Kmgs  Writ. 

lute  any  Ca-  /,     , 

ro?is  without  Licence.  3.  Nor  execute  any,  which,  upon  Conference,  they  inal!  conclude  upon  without 
Royal  AfTent.  4.  Nor  ajier  Rcy.>l  JJfent,  hut  with  thcfk  four  Limitat'ons  I.  That  they  be  w<«!r<i/w/? 
the  A';«e'j  Prerogative.  Z.Kor  againft  the  Common  Law  3.  Nor  againft  any  Statute  Law.  4,  Ner  againft  any 
ChjZdw  of  the  Realm.  And  all  thi.s  appears  by  the  Statute.  25//  8.  19.  and  this  was  but  an  Affirmance 
of  what  was  before  the  faid  Statute.  12  Rep.  ;2.Trin.  8.  Ja. *Orig.  isCet) 

3»  'S^lje  Convocation  is  under  the  Power  anil  autljOtitP  of  the  King. 
21*  ^*  4»  45*  b* 

4. 23  H.  8.  cap.  19.  €nact0tbat,  'WtiZ  ConbocationZfljaU  be  alTeiU' 
ble0  bj)  tljc  jtxins'si  i©rit.2i»  a 

5.  The 


Prerogative  of  the  King.  239 


5.  The  High  Court  of  Convocation  is  called  the  Convocation  of  the  S.  P.  JbiJ. 
Clergy,  and /jr  the  highcjl  Cuio't  P.cck/iajlical^  where  the  whole  Clergy  ,'^'^,."P- "r'- 
of  both  Provinces  are  either  prefent  in  Pcrfon,  or  by  their  Reprcfenta-  Tliat'amonfr 
tive.s.  They  commonly  meet  and  lit  in  Parliament-time,  fw;/////;;^  c/ the  Laws  of 
t-iVo  Parts,  \'iz.  the  Upper-Horife,  where  the  Archbilhops  and  Billiops  doH.  i.cap.  S. 
lit  J  and  the  Lo--sitr  Hoiffe  where  the  inferior  Clergy  do  lit.  This  Court  "  ^^'^  '*"".■ 
has  the  LegtJIative  Pcnver  of  making  Eccleliallical   Laws,  is  commonly  clinl-ir^- 

called  a  National  Synod,  cofivened  hy  the  King's  Writ  direSted  to  the, jioie.— 

Archbilhop  of  each  Province  lor  fummoning  all  Bilhops,  Deans,  Arch- ''^- P. Wood's 
deacons.  Cathedrals,   and  Collegiate  Churches,  alligning  them  the  Time  ["'^,5°p      " 
and  Place  in  the  laid    Writ ;  But  one  Proftor  fent  for  each  Cathedral  ^"„lilf  flri^ 
and  Collegiate  Church,  and  two  tor  tiie  Body  of  the  inferior  Clergy  of  two  PVoitors 
each  Diocefe  mav  luifice.     The  higher  Ha/fe   of  Convocation,  or  the  aie  fcnt  to 
Houfeof  Lords  Spiritual,  for  the  Province  ol' Canterbury  conftjh   f;y'"22 '^'^'"''"^°'-"^* 
Bijkcfs,  whereof  the  Archbijhop  is  Pre/ideut ;  the  Lo-joer-Hoiife,  or  Houfe  ,.y"Ai>;h*dci- 
ol  Commons   Spiritual  con/ijiing  of  all  the  Deans,  Archdeacpjis,  o/ie  P  roc- corny  -.hui 
tor  for  every  Chapter,  and  two  for  the   Clergy  of  each   Dwccf'e,  in  all  i66  in  the  Pm- 
Perfoiis,  viz.  22  Deans,  2.^  Prebe/idaries,  $1^  Archdeacons,   and  j^^  Clerks ^'^^^f'^  ''f^''"' 
reprefenting  the  Diocefan  Clergy.     Both  Houfes  debate  and  tranfaB  on-  oni'yfoV  e^e- 
ly  fiich  Aj'atters  as  his  Alcjcjiy  hf  Commffion   alloivs    concerning  Rcli-ry  Diocefe. 
gion  and  the  Church.     The  Archbilhop  of  York  at  the  fame  time,  and  As  there  are 
in  the  like  Manner,  holds  a  Convocation  of  all   his  Province  at  York,  two  Houies 
conftantly   correfponding,  debating,  and  concluding  the   ^'ne  Matters  °;^^ ""J^^^^^rg 
with  the  Provincial  Synod  of  Canterbury.     The  Antiquity  of  this  Court  are  \<wo  Pro- 
oiQonvoc&t\on  is  very  great,  tor  (according  to   Beda)  St.  Augullin  An.  hcun^i-s  or 
686,  aiTembled  in  Council  the  Britain  Bilhops,  and  held  a  great  Synod.  Speakers; 
The  Clergy  was  never  aliembled  or  called  together  at  a  Convocatio.!  ^^{q^^  ^'^'^ 
by  other  Authority  than  by  the  King's  Wait.  Vid.   Pari.    18  £.  3.   nu.  fometimes  in 
I.   Inter  Leges  Ince,  An.   Dom.  727.  Godolph.  Rep.  9S,   99.  cap.   11.  th- Upper- 

g    2  Houie,  cho- 

fen  by  that 
Houfe;  another  in  the  Lower- Houle,  chofen  there  and  prefented  to  the  Upper  Houfe.     Tht  Jr,-h- 
bijhop  is  the  Prejldmt,  And  proroo^ues  and  li/ffohes  it  M  the  Dirccti.jn  of  the  King.     For   the  Convocation 
is  under  the  Power  and  Authority  of  the  King.     Wood's  Inll.  500. 


See  (X.  e) 
pi.  1,2    in 


(Y.  e)  The  Power  of  the  Convocation. 

See  Canons. 

i.»nr!i)e  convocation  ijas  not  mip  poiuct  to  no  an})  tljiun;  to  bind  ^  convoca. 

_|^     the  Temporalty.  20  Jl),  6*  13*  tionCfiys 

Ld  Coke, 
12  Rep.  72. )  rrsy  makeConftitutions  by  which  thole  of  the  Spiritualty  fliall  be  bound,  (becaufe  they 
all,  by  Reprefentation,  or  in  Perfun,  are  prefent)  but  not  the  Tcmporalty.  Hy  wlucli  it  is  to  be 
hoped,  he  did  not  mean,  that  when  Canons  and  Confiitutions  are  framed  by  the  KcclellalHcal  Legifla- 
ture  about  Matters  merely  Spiritual,  and  being  inforced  by  Ecclefiailical  Cenlures  for  the  Iraprovd- 
itient  of  the  Difcipline  of  the  Church,  and  confirmed  by  the  King  as  fuprcme  Head  of  the  Church, 
that  fuch  Confirmation  has  not  Power  enough  to  bind  the  Laity.  This  would  look  as  if  the  Laity  had 
nothing  t'j  be  faved  but  their  Effates,  nor  the  C!cr};y  any  thing  todo,  but  to  lave  thcmfelves.  Kluch 
truer,  undoubtedly,  is  the  Doctrine  delivered  by  Vaughan  in  the  Cafe  of  (SrOilf  iillO  dliot*  The 
Convocation,  witii  the  Licence  and  AiTent  of  the  King,  under  the  Great  Seal,  tv.iy  m.ike  Ca>wns 
jcr  Regtilation  of  tie  CI iirch,  and  that  rs  iiell  cincerjihig  Lniiks  as  Eiclefiajlicki  All  that  is  required 
of  them  in  making  new  Canons  is,  that  they  confine  thcmfelves  to  Church  Matters.  Upon  the  fame 
Foundation  he  declares  in  the  Cafe  of  JfjU  anD  (S^OCD,  that  a  Canon  fo  made  is  the  Law  of  the  King- 
dom aj  well  as  an  Act  of  Parliament.    Gibl".  Cod.  974. 

2»  'SDfie  ContlOCattOn  IjajS  no  l^OtUCt  to  allow  or  difallow  the  Patents  Br.  Ordina- 
of  the  King.  20.  t>.  6»  13,  'T'  P'„  I; 

3-  2  10, 4*  Hot;  parU  JI3*  24.  a  Writ  10  grautcti  bp  tljc  antjtcc  of  ""^  '- 
t!jc  1OVD0  Ccinpornltn  parlianicntto  the  Sheriiis  ot  London,  nno  tl)tss 

is  UlMcrilltC  per  ipfumRegem  ik  Concilium  in  Parliamento,tlP  UlIjlClj  tfjC 

^njaitlo are commantico  to  burn  vviiUam  Sautre,  uiljo  uias  before 

condemned 


240  Prerogative  of  the  Kin2-. 


condciiined  tcr  a  Rclapied  Heretick  by  the  Aichbilhop  ol"  Canterbury, 
Apoltulicae  ledis  Legatum,  and  the  other  Suliragans,  and  all  the  Cler- 
gy ot  the  faid  Province  in  Concilio  fuo  Provinciali  Congregat.  Juris  Or- 
dine. 

4.  31  H.  8.  cap.  14.  The  lix  Articles  are  rcf^)lved  and  agreed,  (being 
Matter  of  Religion)  by  the  AHent  ol'  the  King,  the  Lords  Spiritual 
and  Temporal,  and  other  learned  Men  ot  his  Clergy  in  their  Convoca- 
tion, and  by  the  Alient  of  the  Commons  i   but  aftil'UJiirIl0   tl)t\>   HtZ 

f naftcn  bp  tfjc  iiUnn;,  Lorc^  g^pintual  nnn  Cciviporal,  am  Coni= 

tUOnS  in  IMiUimcnt,  anO  No  Mention  ol  the  Convocation. 

5.  21R.  2.  cap.  2.  12.  (£naCteU  by  Alient  of  the  Lords  Spiritual 
and   Proftors  oi  the  Clergy  &c. 

.<:eeHe.ery         6.    I  El.  cap.  I.    Pro\  iio^tfjilt  tIjOfC    lUljO   fljaU    \)d:Ot  JUllEitlimOn   bp 

&c.         icttcrjs  Jii)atent0  fljaU  not  baue  Poujit  to  ad| udge  Hereiv  but  m  fucu 
Cafc0  miM)  lyii'oz  been  before  atinniLtcti  tc.  €r  luch  as  hereattcr  ihaii 

be  ordered,  judged,  and  determined  to  be  Hereiv  by  the  High  Court 
of  Parlianient  of  this  Realm,  with  the  Alient  o"f  the  Clergy  in  their 
Convocation. 

7»  Cfie  Con'OOCatiOn  Ijatlj  JSJOtoeC  to  make  Holydavs  or  Falling 
Days.  20  0*  6«  i3» 
S  P.  per  8»  Clje  COnHOCatlOn  Ijatlj  POUlCr  to  make  Conltitutions  Provincial,- 

CokeCh  Jby    which  thule  oi  Holy  Church  Ihall  be  bound.  ::ot),6^iz^ 

but   they 

ought  to  be  according  to  the  Law  and  Cuflom  of  the  Realm.  Noy  159.  cites  ;:  H.  6. 14.  and  21  E.4  ^6. 

SeePrefen-        9.    13  El.  cap.  12.  £)rtiain0,  That  the  Articles  agreed  by  the  Arch- 
ntion  (M.     biHiops  and  Biihops  ot    both  Provinces  and  all  the  Clergy  in  the  Convo- 
cation held  at  London  &c.   lliall  be  read    by  the  Incumbent,  or  other- 
wife  he  lliall  be  (piO  faCtO  deprived. 

io»  18  (£,  I.  jQot,  |3at.^emb.  24*  kcc  miiit  Rogerum  cctrancii'it 
$  Dugonem  Jfiu  ©ttoniss  g)cnefcaL  Ipofpirii  Kcffis  atcDiepifcooa 
Cantuac.  $  ommbu0  CpUcopfS  $  alas  pr^ilatiss  apun  lonDon  Con= 

iJOCatiS  dd  appcllandum  pro  Rege,  ne  in  Concilio  $  COniJlCSatlOne 
tila  contra Coronam  f  DtlWItatem  UOfiCam  aliquid  Itatuereprselumant ; 

Q3annante0  ei0  quoQ  ftcut  oaaroutais  Dcara0  (qiia0  oe  nobis  tenctis) 
^lii^m,  nuilo  niotio  prsefumant  Ccncilmni  tcnete  De  alinuibu0,  nuce 
an  Coronam  bel  pertonain  noftram  m  ftatiim  Conftiii  noftri  per= 
tmcnt ,  $  eciatis  pro  certo,  qiioD  a  feccritis,  1100  intc  aa  i3O0  $  isaxc-- 
nm  Dcftrn0  capieniuis ;  mo  Ije  cuniuiantiS  tijeni  9D  erljortanDum 
ft  93oiicnriuni  Hog  $  Clcrum  bctlrum,  ut  nobis  tc>  ^ubbentioncm 
faciatts  liberalcuu 
l^''' J"^  I  u  9  €.  u  Rot-  ]di\u  £0tmb.  6»  inhibitio  arcIjicpiTcopo  «  omni^ 
♦  F\:fL-  fc"^  €pifcopi0  f  alii'0  prseiatis  aptin  lanibetlj  conbenturis,  ne  *  aii. 

i^_^^^.^^quid  Itatuanr  m  Prsjudicium  Regis,  COron^  bCl  DlffnttatiS  fU^. 
nfdiction  I2»  K0t»  Pat»  25  e*  I*  part  i*  O^emb,  9*  Hugh  le  Dilbenfer  fvvasl 

}s,Schijms,^^^'^^'-^^^.^^  lOnCOn  at  this  time,  that  they  do  not  make  nOr  OrOam 
and  ether  '  ^^Y  Ordinance  which  may  turn  in  Prejudice  of  the  King  or  his  Minillers, 
mcrcSpiritiial  ov  thofe  of  his  Peace. 

And  Eccief:- 

iifiical  a.ufes,  and  therein  they  did  proceed  Juxfa  Le^em  Dhinam  &■  CamKei  Sanctae  Ecclefiie  •  And  as 
they  could  never  affemble  together  of  themlelves,  but  were  always  azlled  together  hy  the  Kind's  IVrit 
fo  were  thev  oftentimes  commanded  by  the  Kinj^'s  Writ  to  deal  with  nothing  that  conce-ned  the' 
Kmgs  Laws  of  the  Land,  his  Crown  and  Dignity,  his  Perfon,  or  his  State,  or  the  Stvitc  of  his 
Councilor  Kingdom.  4  Ir.ft.  3 zz.cip.   74. 

Parifh  13,  5n  44  e.  3»  in  a  SmiOU,  a  Canon  tuaS  niabC,  that   the  Parfon 

hereto  Je'''' °^  ^^ '^''>"  ^^^"^'^^  '"  (EnglauU  ihould  appoint  the  Clerk  of  the  Parilh. 
F.cal  Clerks; 

ofwhom  every  Minlfer  h.id  at  lenfl  one  to  atTift  under  him,  in  the  Celebration  of  Divine  Offices-  And 
notwithftanding  he  was  maintained  by  tlie  PariHuoners,  he  was  appointed  to  the  Oflfice  bv  the  Minilicr,  as 

well 


Prerogative  of  the  King-.  24.1 

V''!I  accoiiling  to  the  Conftitiuion  of  Archbifhop  Boniface  45  H.  5.  in  the  Year  iz6i,  as  by  the  Cufi 
torn  of  the  Kcalin.     Gibs.  Cod.  240. 


14*  3in  anOtOcr  gipnOH  Ijrin  i6o3»  a  Canon  lungi  trnUE  to  the  flimesincethc 


24Ja»  06.  E»  iVaipofe  v.  Gale,  pcc  Curuim,  ainiliptfjc  Caimiel  a=in'thc"pa^ 
tttccQ,  aiiO  j^roljtbition  grantcB  bp  Conftut  to  trp  tijc  Ciiftoun       rift  cieric 

has  ofccn 
been  contefted  between  Incumbents  and  Parifhioncs  for  maintaining  the  Authority  of  the  Canon,  in 
Favour  of  the  Incumient,  a;;uia(t  the  Plea  of  Cuftom  in  Behalf  of  the  Parifhoners;  and  Prohibitions 
have  been  prayed  and  always  obtained.  Gibs.  Cod.  140,241. 

[For  more  as  to  Clerks  of  Parifhes,  fee  Clerk  of  a  Parifh.] 

15-  2^ot.  pari  is  e,  3-  13. 12.  myi  Commaitjs  pra\',  -Cfjat  no  *  orig.  \, 
l^ctttiau  mane  liP  tljc  Clcrgp,  iuDici)  map  lie  in  *  Decreafcoc  Da^  ^.Yf:'";) 
map  of  ti)e  liJcopIe,  or  of  toe  Conunoitaltp,  be  txrantcn  ttl!  it  \st  [q^^ 
trieo  bp  tl)e  £\inn;  nnn  all  tlje  Ccuucil,  tijat  uiitijofit  Daniagc  ort!)C  \  orig.  is 
t  C5rcnt  f|3cn,  or  of  t!jc  Counnoii?  x  it  map  be  ujcU  obfccijeti*  i:inru)er,  (Bo;-.  ncmfa 
at  pleales  t&s;  i^urnc  aiiO  iji0  cotnicti  tliat  i^  it  ajall  be.  puutencr ) 

16.  i;ot»55ad.  18  e.  3.  Jf3. 23.  (iCtjc  petitions  of  tfje  CIeca;i'> 
ann  Suiujcc  of  tije  iaiiin:,  anti  gtanteu  bj)  ijim  unnet  fjisj  €)eal 

17.  2  H.  4.  cap.  5.  It  t^  rCCitCQ  tljat  tije  Lollurds  preach  &c.  to  the 
great  Peri!  of  the  Souls  of  the  People,  antl  Of  ail  tl}e  Ecalm  Of  €110= 
iaitll,  as  now  plainly  is  lound  and  lullicieatly  proved  before  the  Reve- 
rend Father  in  God  the  Archbilhop  of  Canterbury,  the  Billiops  and 
other  Prelates,  Mailers  of  Divinity,  and  Doctors  of  Canon  and  Civil 
Laws,  and  a  g,Teat  Part  of  the  Clergy  of  the  fiid  Realm,  efpeciallv  af- 
fembled  for  this  Caufe.     QX  fCCmS  it  lUa0  a  COUlJOCatlOU  ill  lUljiC!) 

t5)C  Ci^i!ian0  ©ere,  idIjo  are  lapujcn* 

18.  The  Jurildiction  of  the  Convocation  is  only  touching  Matters  The  Jurif- 
mecrly  Spiritual  and  Ecclejiajlical,  wherein  they  proceed  JuKta  Legem  '*"^^'?"  °^ 
Divinam  &  Canones  SanSlse  Eccleiiae.  Godolph.  Rep.  99.  cap.  11.  b.  2.  c-uion  mav 

be  excrcifed, 
in  making  Canons  with  the  King's  Licence  and  Aflcnt,  in  Examining  and  Cenfuring  Heretical  or  Schif- 
matical  Books  or  Perfbns.  But  then  an  Appeal  lies  to  the  Kiio;  in  Chancery,  or  to  lis  Delegates,  as  hath 
been  lately  refolved.  It  is  the  Legillative  Powi:r  in  the  Church,  and  the  Canons  that  are  made  con^ 
cerning  the  Church  with  the  Royal  Aflent,  bind  the  Clergy,  but  not  the  Laity.     Wood's  Inft.  500. 

19.  Serjeant  Hawkins  fays.  It  is  certain  that  the  Convocation  may  de- 
clare what  Opinions  are  Heretical;  but  that  it  has  been  quellioned  ot  late, 
VN'hether  they  have  Posver  at  this  Day  to  Convene  and  Convitl  the  Here- 
tick.     Hawkl  PI.  C.  4.  cap.  2.  S.  3. 


(Z.  e)     The  Privikger  of  the  Convocation. 

I.  8  H.  6.      A   LL  the  Clergy   from  henceforth  to  be  called  to  the  In  t'-e  Jour- 
cap.  I.  ji\_  Convocation   by  the  King's  Writ,    and  their  *  ^CD  ?;'''°*'f'^ 
tiant0  and  Familiars  ihall  tor  ever  hereailer  iJ^ti  and  Enjoy  fuch  Lil)crcv  l^^^^  °^e 

and  jinmiimip  in  Commo;,  Carrpimj  ano  lACturniuu,  as  the  Great  firdVcVcai 

Men  and  Commonalty  ol  the  Realm  ol  England,  called  or  to  be  called  A-.plications 
to  the  King's  Parliament,  have  Ufed,  or  ought  to  Have  and  Enjoy.         "  ^''^'f 

°                           /                           '              '^    .         _  '.  ^  Lordflnp.'! 

fbrEedrefs,  in  Cafes  where  this  Liberty  of  the  Convocation- Clergy  hath  been  invaded,  ^vhich  theie 
Lordfhips  have  accordingly  granted.     Gibf.  Cod.  975. •*  S.  P.  Godolph.  Rep.  99.  cap.  j  j    52. 

Ppp  (A.  f.) 


24-2  Prerogative  of  the  King. 


(A.f)      BilLop  and  *  T^mporakks.    For  what  Caufes  the 
Temporalties  Ihall  heje/fcd. 

Temporal- 

tics  a,e  all  1. 1  T  Jf  it  T-lfljOp  incumber  the  Church  after  a  PrOljibltlOn  Of  Ne  Ad- 
r):"!^  1  mirtas  OCliUCt'O  to  Ijtm,  nntl  tljCrCOf  tatinO  Cullty  in  quare  In- 

wiiiTsi  cuinhj  avit,  wt  Ijlss  Ccmporaltiejs  fijnll  not  be  Tcircn  for  tW.  21  (£.  3. 
fliop'.have    13-  Cura/ X^ut  (iiiajtc* 

by  Livery 

or  the  King,  as  Caftles,  Manors,  Lands,  Tenements,  Parfonages,  Tithes,    and  all  other  Cerrainries  of 

whicli  the  King  is  anfwered  during  the  Vacation.     Savil  jz.  Pafch.  25  Elh..  Anon. 1  S.  P.  Br. 

Reseller,  pi.  9.  cites  21  E  5.  3. 

Br.  Con-  2.  Jf  il  Prior  l)C  attainted  in  an  Attachment  upon  Contempt,  for  Not 

tempts,  pi     admittino;  i  Variet  to  his  Corody,  t)i0  'eCeUipOlMltlC^  fijall  bc  fClfeD,   3S 

Air.'zrs'c.  ^ff-  aB)iioseD» 

Br.  Con-  3-  Jf  il  Bifhop  bC  attainted  in  an  Attachment  upon  a  Prohibition,  i]i0 

tempts,  pi.   ccmpotalties  fljall  be  ftifeo*   21  €.  3-  i-  60.  b*  nDjungeo. 

19.  cues  S.  C. 

Br.  (>uarc  Incumbravit,  pi.  i.  cites  S.  C. Br.  Refeifer,  pi.  9.  cites  S.C. 

^^  ^^-  4-  Jf  3  Bifliop  be  found  a  Difturber  in  a  Quare  non  AdmiiPit  brought 

f,'"'''';?;;//  bv  the  King,  1)10  Cempomltic^  fljnll  be  feifcD.    23  e.  3-  22. 

E  5.  2-. S.  P.  Bv.  Quare  In-'pedit,  pi.  97.  cites  24  E.  5.  55. Br.  Forfeiture  ckTcrrc,  pi.  106.  cites 

S.C.  .Juil  the  King  fhall  have  the  Profits  till  he  reltorc  to  hifii  the  Temporalties,  as  11  lecms  in  a 
Quare  Impedit. 

5.  10  e*  I.  Rot.  pat.  09emb»  3*  ^^antiatur  quoo  omncs  Cccrs 
$  Cciicmenta  Goifcopi  Louooit  captautur  in  wmxm  EcgiiS  $  iw^t 
fatienU'  pcoiit  Ecc  lumurcnt  SDccafioiic  cii)U3tiam  Tranigreiiionis 

enormis  N(;bis  per  ipfura  CplfCOpum  fatla;. 

6.  3if  a  "BidjOp  be  attainted  in  a  Trefpafs  againft  the  Peace,  1)10  Cem= 

p0ra!t!c:j  fljall  bc  fcifeo ;  fbt  be  fljall  not  be  tal^en  ais  anotljec  $^an,  W 
caufe  ije  10  a  prelate.   29  (£.  3-  42- 
see(Ef.)pi.    7.  s^.  19  C  3-  Eot.  1 14.  CpifcapiiS)  Barioicl)  implacitatur  pec, 

7.  The  Cafe  ECSSl^  fOt  proceeding  in  the  Ecciellaliical  Court  againlt  the  Abbot  of 
of  the  Ab-  s^_  Egid.  againll  the  Privilege  of  the  faid  Abbey,  granted  bv  the  King 
Edmonds'"'     before  the  Conqueft  &c.  aUU  tlje  Defendant  found  Guilty  by  Jury,    ft 

hury.  21  ij3  aisjungeo  tljat  tlje  <Ceuiporalt(c0  of  tije  OSifljop  fijall  be  fafeti ;  ana 
E-  3-  60.     tljat  ni  furl)  Cafes  tor  Contempt  to  tlje  lAuig,  tlje  %c'om  of  tije 

'Bifljops  caperentur  prout  per  DiUerfa  Eecorua  prosenitorum  Eegis 

liquet.  Canien  quoati  boc  DieiS  Data  eff. 

8.  In  Efi-ape  againfi  ths  jibbot  of  Wefiminjler  of  a  Clerk  attaint,  it  ^vas 
prayed  that  the  Temporalties  Ihould  be  feifedj  to  which  it  was  not.an- 
fwered,   therefore  quaere.     Br.  Refeifer,  pi.  17.  cites  21  Alf.  12. 
If  the  Ordi-      9-   25  Ed.  3.  6.  Enafts  that  the  Bijhops  Temporalties /ball  not  befeizedin- 
nary  chal-     to  the  King's  Hands  Jor  a  Contempt,  hit  thejjhall  fay  a  reafonabh  Fine. 

lemes  a  Ckrk 

v-ho  cnrmtreiiil,  he  fhall  make  Fine,  and  if  he  *  refiifes  a  Clerk  ivho  can  read,  he  fhall  make  Fine  ;  and 
if  he  pjfftrs  Pttrention  to  be  made  by  a  Clerk  contrary  to  the  Common  Lazv,  this  is  an  Efcape ;  but  the 
Temporalties  of  the  Ordinary  fhall  not  be  feifed  in  fuch  Cafes,  becaufe  by  this  Statute  the  Jultices  fliall 

affefs  a  Fine  without  Seifing.     F.r.  Ordinary,  pi.  12.  cites  9  E.  4.  2S. S.  P.  Br.  Clergy,  pi.  2.  cites  7 

H.  4.  41. ♦  S.  P.  And  he  is  not  ?«rf^e  of  the  Prifoner,  nor  of    his  Reading,  hut  is  [only]  Mhiijler, 

and  the  Juftices  are  as  Judges.     Br.  Ordinary,  pi.  1(5.  cites  7  E.  4.  29. lbid.pl.  20.  cites  7  H.  4.  41. 

S.  P.  But  per  Gafcoign,  If  the  Ordinary  challenges  o?ie  for  a  Clerk  ivho  is  No  Clerk,  the  Court  fhiU  feife 

his  Temporalties. And  2  Inft.  164  fiys,  that  ancicn;ly  his  Temporalties  were  liable   to  be  '.cifed  for 

fuch  Contempt  But  fince  this  St.itute  it  is  held  to  be  fincable  only  — And  2  Hawk.  PI.  C.  500.  cap. 
;;.  S.  1 16.  fays.  It  feems  to  he  generally  agreed  that  he  fhall  now  be  only  fiiei  in  f  ich  Cafe  and  the 
like,  for  ohflhuttely  perfifiwg  to  return  tl,it  a  Pr'foMr  readi  as  a  Clerk-,  or  the  contrary  &c.  again(l  the  de- 
clared Senfe  of  the  Court. 

lo.  Iffje 


Prerogative  of  the  King.  243 


10  Iflue  was  taken  in  C-.ife  of  a  Corody,  if  the  Kt>ig  was  Patron  of  a 
Priory,  (^w  re  he  had  piefenced  one  to  the  Corody,  by  reafon  that  his 
Progenitor  lounacd  a  Chapel  there  before  any  Priory  was  there)  or  it  the 
Biihop  of  E.  ana  his  Predecelfors  de  tempore  have  been  Patrons  there  ? 
And  the  jury  found  for  the  King  ;  for  which  Caufe,  and  becaufe  the 
Priors  had  uiuie  Elect  tons  of  Priors  there  without  Licence  of  the  Kin^,  to 
the  Di/j'nhen'on  of  the  King  and  his  Crown,  it  was  agreed,  that  the  King 
recover  the  Patronage,  and  that  thcTeniporaltics  be  Jeifed  into  the  Hands 
of  '.ne  King  tor  the  Dilinhcrifon  and  Contempt,  'till  he  had  made  Satif- 
tailion  to  ihe  Iving.     Br.  Prefentation.  pi.  39.  cites  38  AfT.  22. 

II.  If  the  Kuigprefent<:  and  his  Clerk  is  in,  and  after  the  King  revokes  Br.  Prefenta- 
his  Prefentation,  if  the  Bijhop  dues  not  remove  the  Incumbent,  the  King  fhall  tion  ^,1  6. 
feife  the  Temporakies.     Per  Thorp.  Br.  Ordinary,  pi.  23.  cites  44  E.  3.  "'"^-   • 

Where  the  Km?  writes  to  the  Biffjop  to  a  foil  a  Afan  excommunicated  Br.  Excom- 


12 


13.  An  Archbiihop  is  attainted  of  Treajon,  the  Kmg  IhalJ  have  the  lem- 
ralties  m  Jure  Coronet,  not  in  Jure  Vacaticiiis  ,  for  he  remains  Archbiihop 
until  Degradation  and  Deprivation.     Jenk.  210.  pi.  44.  cites  D.  108. 


(B.  f )     What  rrnft  the  King   ffiall  have  thsrehj. 
[I.]  1  Jf  tl5C  IKm  W  lunirnicnt  to  fn?e  tlje  Cempornlticd  of  tijc  b,.  R^rdre 


Seifm  the 
King  has 
Poffeffion, and  not  only  the  Profits—  Br. Scire  facias,  pi.  loi.  cites S.  C.  —  Br.  Seifin.  pi.  9.  cues  S. C, 

2.  Quare  Impedit  by  the  King  of  the  Advowfon  of  B.  and  made 
Tide  by  the  Poifeliions  of  the  Abbot  of  Reading  in  his  Hands;  and  the 
Deienditnt  laid,  that  King  H.  Great  Grandtather  of  King  J.  granted  to 
the  Jblct  and  his  Monks,  that  he  and  his  Heirs  Jhould  not  meddle  with  the 
Po(ffJton  of  the  Moufe  in  the  I'lme  of  Vacation,  but  that  the  Prior  and  Monks 

Jhould  have  the  Difpofition  of  them /or  their  Sujfcnance;  and  faid,  that  they 
had  enjofd  it  accordingly.  And  the  bell  Opinion  was,  that  the  Grant  is 
good,  and  that  this  VV^ord  (Pcffcffions)  jhall  be  taken  th  heAll  which  they 

pall  have  in  Pojjejicn.  And  Per  Ciielr.V\  hereaMan  demands  Franchite  by 
Charters  of  the  King  before  Time  of  Prefcription,  he  Ihall  not  have  ic 
otherwifethtxn  it  has  been  uied,  quod  non  negatnr  ;  and  quare  the  Reafon 
of  thofe  Words  (tor  their  Suttenance)  ;  lor  Pre,cntation  to  Jdvowfon  is 
not  Sufhiiance  to  them.     Br.  Patents,  pi.  22.  cites  39  E.  3.  21. 

3.  The  Matter  and  Fellows  of  iVJerton  College  in  Oxford  were  Patrons  ibid,  in 
of  a  Benefice  within  the  Biihoprick  of  Durham,  and  the  Incumbent  died,  M-i'-g.  fays 
ixv\6.  t\y^  Church  remained  void  \iY  fix  Months ,  and   afterwards  the  ■^'/■«/' £'".'^3s 
wzs,  deprived.     Whether  the  'Collation  belong'd  x.o  x.\\c  King  or  to  tht-'aua^i-de  .that 
Archbi'lhop  of  York,  Metropolitan,  or  not.     Q^usere.     D.  87.  b.  pi.  103.  ubelong-dto 

Patch.  7  E.  6.     The  Malltr  and  Fellows  of  Merton  College's  Cale.  thcGuaVdian 

'  ot  tlie  Spiri- 

tualties.   It  fecnis  that  it  is  becauie  that  it  ccu'.es  by  leaibn  of  tiic  bpiiiuultics. 


(C.  f.) 


244-  Prerogative  of  the  King. 


(C.  f)  in/itatms.    JflMt  Peijotis  maybe  -jtfiud. 

of  Opinion  'oi*:>     '•♦.o* 

3*  'But  all  Abbeys  and  Priories  Of  COUimOU  HtlXht,  if  fhrw  TtiPfo 

rot  kvviuiiy  exempt,  ujcrc  \jintable  njj  ia  tte  nuU:  aiS  iiSS^ 
Daiji^  Prccpcs.  3.  is.  tin:  tljcp  lucre  RciigiauS:  '^"^* 


(D.  f)     Bifhop.      Vifitation. 

2.  "am  Patronage  of  a  Deanry  be  appointed  to  the  Kino-  bva  Sta 
tute    and  that  he  and  his  Succellors  ftall  nominate  him  Imtf)  3  Savine  of 
all  Riehts  &c.   to   Srranp-pr>5     PYrPnr  rhi.  Rwi„,„     .^^.^    "r-:^.."7^     '"e"'^ 


Jaiy  .2?I„      3*  ^'-^^  ^"^^^"'^"^P  'J«-^  ^^^'^  «f  Correaion  of  a  Parfon.  ao  ^,  6.  46. 

foroe  Cafes  a  Power  as  to  the  Pcrfon,  the'  not  to  the  Place  ;  for  if  the    Pnrrn„  nf  ^    n      .■ 

..Mont  a  Luer.ce  or  commits  ar,y  Mfdemearwr,  the  Ordinary  may  puniih  him.  '  wtts   Ck7f''LT7'" 

174.  ■ cues  5  Salk.  140.  ^  "-"-'^o    -L-aw.  1-3, 


4*  But  not  of  an  Abbot.     20  |)*  6,  46* 

,.  .^\c^^*^"  tijC  Hofpital  of  St.  John  of  TerufaJcm  ms  fUrrClltlcrPTl  inH 
mmm,mi^  fuppreired   by  th'e  m  Qt  33  H.  8.    a7d   Spo  Lo^ 
vcfted  m  the  Crown  Up  tOC  ^ft,    pCt  the  Vilkation  of  them  d  d  no 
ceafe  thereby,  (jCCaUfC  tljai'  COfpOratiOn  lUa0  not  maim  bV  iU  But 
when  they  were  Deraigned,    and  fcft  tfjCIC  DMU  HUle     aitfi  Sr^pi 

at  ujjiclj  tocp  ti3erc  writable,  tijen  m  €owmmmnm^^^ 

ro^CO,  ani.   Umitm  tlje  Vllitation  ceafei.  DiSj^llFo^cf  it 


Wherever 
there  is  a 


(E.  f)  What   *  Perfon  {hall  v'lfit. 
Cure  o?     '-Jl^J^i  ??^»t  lato  of  tIjeBcalm,  the  KingM^  mm  ta 

Ir'' J!^^  •  Ch!^h^&S^^"'i?\""l^^''*'^^^  ^«  '^^"^^^  aUD  InormSs  if  the 

churchisvi-Lhurch.  i)a\)i0 1,  ^^rotpegs  4* 

W  the  bI-''    .f  *  %^the  Statute  m  Cuue  of  H.  8.  the  Crown  was  but  rCIJUtteD  attB 

him  ;  If  to  a  ' 


3.  t>< 


Prerogative  of  the  King.  245 


3»  D.  8,  iQ^  3*  "B*  R»3R0t*  9"«Epircopus  Exon.  attachiat.  ad  refponden-  ^^'_^'-  9'"*- 
dum  JJoimno  Rcgi  quare  exerccrct  lurikiictiotiem  in  CapclLi  RcgiaSanctce  |5^  |;'J^^ 
BurianK  in  Cornub.    &c»  bCltC  pltlCtfat    JlllDCm*  ClllD '<Kr,  i?*  C»  3*  cites  it, sin 
Rot    9"   "X^*  i\»  TimcofE  I. 

J./  Clic  King  {jimfCif  fljaU  ^iflt  his  Free  Chapels  and  Hofpinil^  atttr  p^^^<^,^     ,^ 

not  t!)C  SDrtmiaip*  Dn^is*  i43cocpcs-  4»  -7»  <^*  3*  85*  Jr*i^:Z«a^,4^'  may  continue 
n*  '^\)t  LortJ  Cijancetlor  fljaU  erecutc  It  tor  tijc  mm.  iud,,  in 

point  ot  £x- 
cmrtion  from  ordinarv  Vif.tation,  thougli  the  Head  or  Members  receive  Inftiniiion  from  the  Ordinary 
This  appears  beyond  Exception  from  the  Kmgs  I'refn:t.il,o»  of  a  Prebendary  ot  the  Free  Ckipd  of 
H<(iwVs,  made  to  the  Bifliop  of  Chichelkr,  and  a  Rjy.rl  M.-„idau  for  hi/l.^lment,  reciting  the  Admiihon 
and  Inrti'tution  of  the  Pcrfon  Prcfentcd  ;  Both  which  wehnd  in  the  Rcs;ifter.   Gibl.  Lod.  2;-.        _ 

If  the  Bifhop  attempt  to  vifit  an  Hofpiral  of  Roval  Foundation,  a  Prchihithr.  is  proiuied  it  the  Remitter 
Fol  40  b  By  the  Tenor  of  vi  hicli  it  appears,  that  De  fare  Communi,  t!ie  Chancellor  of  Ens^land  for 
the  Time  being  had  the  Right  of  Vifuing  all  fuch  Hofpiuls  in  the  Name  of  thi  King.  Gibl.  Cod. 
J147. 

5,  die  Donatives  of  the  King  atc  iiot  uifitflblc  bv  tljc  Ottimnri)  Jn  Jncu^- 
Du^is/i.D.  fC.of  fmv..  46.  temp.  C%  6,a5c,  liJtcmumre.  ^i-D^^nvcof 

6.  ■SniCsDonatmCS  of  tDe  UUin;  arc  properly  viluable  by  the  Chan-  as  he  comes 

ceiior  j6a\)is.  u  46. if.  15.13.42. 3.  auG  tix UiusmaiMuakca  bpe-  to  .t ..ceiy 

ciai  Commiirion  tO  tOlS  [i)lirpOlC.  D.  i.  4*^*  King's  Let- 

ters Patents,  he  fliall  not  be  vil^table,  nor  dtpriwble,  by  any  Ecclcfiaftical  Authority.but  by  the  Lord 
Ciiar.cellor,  or  by  CommiJioners  under  the  Great icul.  liRcp.  41.  m  Nunolas  buller  s  *^.i1l. 

".  CIjC  Abbcv  of  St.  Edmond's-Bury  UKlS  tlf  tlje  Foundation  of  the 
Kins,  and  exempt  from  every  Jurildiction  of  the  Ordinary,  tljat  110 
©rtlinarP  fljali  Mix  tijCtC,  and  after  ordained  in  Parluur.enr,  that  il  the 
Biihop  of  his  Succelfors  vilir  aeainllthe  Ordinance  and  foundation,  they 
ihall  iorrl-it  30  CalClltJS,  0115  nftCt  tijC  'BtfijOptS  fUtU  upon  a  Contempt 

forviiitiu^^  coiurarp  to  tljts,  anti  agatnll  ti)c  [i)rot}ibition  ot  tne  tMnn; 
notto  Uifjt,  aim  fortljigijia  '^Teuiporaitic^  furcD,  ana  t)C  tortcitcXi  m 

8.  8  e.  I.  Rot.  CIaur.09Cmb.  8,  RCC.  OtC.  (glaUC.Pr^ec-ipniius  tibi 
quod  non  permittas  m\%m\.  Epifeopum  MZ\  £)tnC.  Sift  fillO?^  93miftr£!5i 
mm.  Cap€ntinO2i,CteiiCO0,  aUt  allO^  Minillros  hto  Capelht  de^c 
QU£  eit  de  Hireditute  J.  S    infra  ^tatem,  &  in  Culfodia  noltra  exilten- 

tis  viiitare  m  Jurumcttoiicm  ©rOinartam  in  cancni  Iwcra  <i.apcUa 
evEctere,  ^wi  m  ca  aluiuiti  contta  tcnorcm  JnciuifittCijiis,  luipci-  ac 
IJiKcato  iioftro  fupct  Iioc  $c.  attcmptarc  tc.  fcti  ni  tO!3cut  ftatu  m 
QUO  auT  Oic  onitus  -i^atns  pc^tiicti  J.  ^*  uianutcin: a-j,  protcija^  f 
trfcntas  tsurnntc  Cufron.  $  lioc  nulla  nmtia  ouuttao' «. 

9.  u%,   e.  i.ROt.  ClaUf.  q3cmb.  ?<  aaCXtVafC  tlic  free  Chapcs  of 

the  King  aix  crcmpt  from  ti'ic  ccDiuarp  JunfDictton,  Uiijidj  tljC  jean 

asd  Olncial  of  London  COUipdOtijCm  tO  pnj)  (tC.    Pruhibinon.  6.  e.  i. 

Eot.  }3tu  99. 17.  in  ^clictiula  aniicta.  €i)c  fc^ms  rccia%  Quo^ 
cum  CitVM  0mnmm  eanctoruni  Dc  Dcvbi'  cum  |i)vxbentiid  *a.U2S 
patincnt.  fui^fiut  liDcra  Captlla  mm^  ^t  ab  onuu  CH-tiinaria  %iu 

ttlQiCttOirC  Cmnpta,  f  OonrnO  ^''^P^  unmvdiate  vSub)  tta  ^:c.  $  Art.hi- 

diaconus  Derhv  luriimctioiier.i  llu  Diui^icat.  Ere  mantiat  iiuoti  pr^= 
fato  arcljiatsja'cone  talnti  Junmictioncm  i^mtsicanti  m  r.ullo  obtcm- 

'10    Jfa  Hofpitftl  br  Spiritual,  theBilliop  fljail  blfit.  €0.  10.  g)Ut^[SoofC> 

ton'^  31. 8  ecr.  29. 8  c.  3-  air.  150.  coii--^c'fJI 

II    3fa  Jporpitfli  be  Lav,  the  Patron  fijallMt  It.   CC  lo- ^^^^C// j  _.  v,n?or, 

31.8^^29:8  €.  3. aiv.  150.  -'j-^ 


mcr.t  of  the  Founder,  or  of  the  Law,     If  it  be  a  *  Lay  otie,  the  Foimder,  or  his  Heir. ;  Bur  if  -'^  Ec- 
clefialUcal  one,  then  the  Biftopof  the  Dioccf.  is^Per  Holt  Ch   ].  .Show    74,  Mid.  i  VV.  £c  .X  .    Per- 

Q'li 


clefialUcal  one,  then  the  Bilhopot  the  Uioccis  is^^rer  noit  v....  j.  o„u«     ,  ^^^.  ,-^......  .   ..  .  >.^  ...    •  - 

i.|,,,„        !_   ♦  s  P    lerk  2-0.pl  S8.  —  Ir  is  fu>d,  in  the   Joiirna!  of  ParliameDr  j  !!.  ^.   That 

^  "  '  •>  ■      '^  n .,  ^  -         "  Jhtifes 


246  Prerogative  of  the  King. 


Jlitfes  .reLtt:)i!i  io  Hojpilah  ought  to  be  rejormed  in  Comocation ;  But  the'  the  Ruic  of  the  (."anon  is  tliar 
Holpiials,  de  Jure  Commuiii,  were  under  the  Infpedion  of  the  Bifliop  ;  And  tho'  alfu  the  Order  of  the 
Lords  in  Purliitincnt  implies  plainly,  that  they  underllood  the  .Statute  2  H.  5.  cap.  1.  to  be  an  Aifir 
mancc  of  th.;c  gei  era!  Riglit,  without  any  Exception,  but  to  thofe  of"  Royal  Found  nion,  firce  tic 
isr^uKc  neither  mentions  nor  implies  any  other,  yet  Lord  Coke  diftinguilTies  between  Spiritual  nmi ! L 
Hoipitals  ;  .^nd  laid,  the  Exemption  from  the  Ordinary,  in  the  Caic  of  Sutton's  Ko<"piral,  was  but  dccla' 
raiory  ;  For  btin<;a  Lty  Incorporation,  he  neither  couid,  nor  ouf^Jit  tovifit  it.  Gibf  Cod.  1  14-  1 1,{ 
:.  Holt  Ch.  J.  heid,  that  in  Defcf.t  of  a  panicular  Appoiniment  of  a  Vifitor  hy  the  Founder,  the'  Com' 
mon  I,aw  makes  the  Founder  Vilitor,  and  it  is  not  at  his  Plealbre,  whether  there  fliall  be  a  Victor  or 
■not ;  But  it  he  is  hlcnt  during  lis  o-wn  Time,  the  Right  will  drfcend  en  his  Heirs.  And  his  Lordfliip  <'i\A 
that  it  lb  appears  hy  the  Cafe  in  Yelv.  7  ^  and  2  Cro.  60  where  it  is  admitted  on  all  Hands,  that  the 
Fourderis  I'atron,  and  as  Founder  is  Vilnor,  if  no  particular  Vifitor  he  appointed,  and  that  (i-i  is  8  H  •- 
•70  &  S  AfT,  20  (o  that  Patronaf;e  and  Vifitauon  are  r.eceflary  CWfecjucnts  of  each  other;  For  this  vi 
fitatorul  Pouer  was  not  introduced  by  any  Canons  or  Confliiutions  Ecclefulfical  ;  It  arifcs  from  the 
•rroperty  which  tl  e  Founder  h^id  in  the  Lands  aiTigrcd  to  liipport  the  Charity.  Skin  4S5  Triri  6 
\\\  &M.  B,  R  m  Cafe  of  Philips  v.  Bury — _^t,how.  Pari.  Cafes  45,  40  Accordinglv,  and  there  it' 
was  lurthcr  art;ued,  That  m  our  old  Books  {deprived  Ly  ratron)  and  (depriied  Ly  lyitor)  aie  ^/l  one  ■  For 
this  Authoniy  to  "ifit  is  a  Benefit,  that  naturally  fpriiigs  o'Jt  of  the  h'oundation,  and  it' was  in  his  Power 
if  he  pleated  to  transfer  it  to  another,  and  w  here  he  had  ib  done,  the  other  w  ould  have  the  fame  Ritrhc 
and  Authoruv  as  the  Founder  had  ;  That  there  is  no  Marnier  of  Difference  betiieni  an  Hcfpit.^l  and  a  Co! 
ley  except  oily  in  Deffree:  An  Hofpital  is  for  thofe  that  are  Poor  and  Mean,  or  Sick  &c.  A  Colle'^e  is 
For  another  Sort  of  Perfons,  and  to  another  Intent ;  The  former  is  to  maintain  and  fupport  them  •  This 


are  liccleliallical,  tiien  the  t-Jnlinary  ot  the  i'lace  is  Vilitor  ;  But  if  they  are  Lay  CorpoVations    then  the 
Founder  and  his  Heirs  are  perpetual  Vifitors 12  Mod.  252     Mich   to.  W  -  'Ar,.,.,  'h„u  <-..    r 


.who  are  to  receive  the  Chanty  of  the  Founder,  whereof  a  particular  Vifitor  is  not  appointed    Iftht 
are  Ecclefiaflical,  then  the  Ordinary  of  the  Place  is  Vifitor  ;  But  if  they  are  Lay  Corporations    then  tf 

Founder  and  his  Heirs  are  perpetual  Vifitors 12  Mod.  252     Mich   10.  W  -    Anon    Hnlr  cu 

J- :j  i_  .  ..__i.  :.  ..1 !,_  r^ .•    ..  ..r  _  r-   11  _  _     1     -.        i-  . -"   tt-^  .     .     '  ~'       """•    t-^^ni  k^u. 


faid  he  took  it  that  the  Corporation  of  a  College  being  Lay,  the  Vifitation  belongs  to  the  Founder  and 
liis  Heirs,  and  if  \.\\t  Founder  dies  'without  Heir,  that  ihc  liftation pall  po  to  the  Ainr;  For  which  lee 
5  E.  4.  ^imon  m  i^OnfOrD'jS  tialV,  and  faid  that  this  was  his  Private  Opinion  ;  And  tliat  whether 
a  Right  ot  Viiitation  iliould  efcheat  was  a  Point  which  divided  the  Court  in  ^r.  3&atril"k'.S  (Life  • 
Ai^d  faid  that  there  isa^grcat  Di-.-erfity  between  Abbot  and  Convent,  and  Maffer  and  Fellows  filivor 
and  Commonalty  &c.  For  in  Cafe  of  Abbot  and  Convent,  tiiere  mull  be  the  major  Part,  and  the  A'bbot 
bcfides,  Becaufe  he  afls  only  cum  Conlenfu  of  the  major  Part  of  the  reft;  But  in  Cafe  of  MalV-r  and 
Fellows,  &c  the  Mafter  himielf  is  but  Part  of  the  Acting  Part,  and  he  is  one  of  the  Grantors -s  well 
as  the  Reft  ;  Ard  he  faid.  That  m  cafe  it  be  a  Donative  and  a  private  Corporation,  thou-h  it  he  Spi-'nal 
yet  he  i;  of  Opinion  that  the  Vihtation  belongs  to  the  Founder,  though  he  does  not,  by  exprefs  Words' 
referve  it  to  liimlelf ;  For  why  fliould  it  of  Common  Right  belong  to  the  Ordinary  '  And  whether 
the  King  may  grant  the  Inheritance  of  a  Vifitation  may  be  a  Queftion;  For  it  may  be  faid  to  be  Privv 
to  his  Pcrlon  ;  But  without  doubt  he  may  grant  to  whom  he  pleafe  to  be  Vifitor  for  a  Time. 

n^U^^^      12.  3if  a  Lay  IpOfpital  beerCCtet,  and  no  Villtor  named,    but  Go- 
^j^^i.^^^  vernois  appointed,  tljC  (SOUerilOriS  fljail  Utfit  CO.  10.  Sutton  31. 

If  the  Fiiinder  limits  not  who  pal!  lifit  (fays  my  Lord  Coke  Uhe  Bifhop  of  the  DioceCs  fhall   fotAvhich 
he  refers  to  the  Statute  of  2  H.  5.  cap.  i.  and  fays  nothing  of  his  Diftincf  ion  between  Spiritua'l  and  I  av 

Hofpirals.     Gibf  Cod.  11  51  Gilbert  Ch.  B.  faid  the  Meaning  muft  be,  that  when  an  Hofpital'is 

incorporated  as  adiftmft  Corporate  Body,  and  Governors  appointed  ;  That  (in  point  of  Conftruftion")  is 
then  a  Parting  with  the  Vifitatorial  Power;  For  there  can  be  no  End  in  erecting  the  Governors    but  to 
make  them  Vifitors  where  the  Poor  are   the  Corporation,  and  the  Revenues  are  lod(-ed  in  them  a-  a 
Corporate  Body.  Hill.  12  Geo  i.  G.  Equ.  R.  iSo.  Cafe  of  Birmingham  Schorl.  -  S.  C  1  Wm'sRe'i  --\ 
Edenv.  Fofter.  '       J  :'•"5■ 

I3.  All  Abbies  and  Priories  iUCrC  IJlfitablC  by  the  Ordinarv,  as  to  their 
Rule  and  Order  Of  COmmCIt  Hifffjt,  it  thev  had  no  Exemption      W)A' 

^i^projcpc'si.  3-  P      •    ^a 

•  14-  ^\)t  Hofpital  ot  St.  John  of  Jeruf^Uem  tua0  IJSTltable  by  the  Ordi- 
nary Of  Common  Eiffljt*  Daij,  l^royie^.  i.  atmuttiti.  jfor  tlicp  lucre 
Kcjigioud*  ^ 

15  lit  tl)c  Statute  of  25  H  8.  iuljic!)  ttiltcg  aiyai>  tljc  Boi3''"0  su- 
premacy, tijere  t0  a  Provifo,  (1315,)  That  the  Archbilhop  ot  Canter- 
bury, or  any  other  Perfon  or  Perfons,  Hiall  have  no  Power  or  Authoritv 
by  Reafon  of  this  Aft,  to  ViJit  or  Vex  any  Monalterics,  Abbeys  Prio- 
ries, Colleges,  Hofpicals,  Houfes,  or  other  Places  Religious  'which 
be,  or  were  exempted  before  the  Making  oi  this  Act,  aiiy  Thing  in 
this  Aft  to  the  contrary  thereof  notwithftandingi  but  that  Redrefi 
Viiitation,  and  Confirmation,  Ihali  be  had  by  the  King's  Hio-hnefs    hi' 

iieirs 


Prerogative  of  the  King.  24.7 

Heirs  and  Succeflbrs,  by  Commilfion  under  the  Great  Seal  to  be  direfb- 
ed  to  lucli  Perlbns  as  Ihall  be  appointed  requilite  lor  the  fame,  in  fuch 
Monallcries,  CoilegeSj  HofpitaL^,  Priories,  Houles,  and  Placea  Reli- 
gious exempt,  lb  that  no  Vilitation  or  Coniirniation  Ihall  be  irom 
henceforth  had  or  made  in,  or  at  any  fuch  Monallcries,  Colleges,  Hof- 
pitals,  Priories,  Houles,  and  Places  Religious  exempt  by  the  laid  Bi- 
ihcp  uf  Rome,  nor  by  any  ot  his  Authority,  nor  by  any  out  of  the 
King's  Dominions  &c. 

16.  JlT  iljC  Statute  of  3  I  H.  8.  cap.  i^  Of  tI)C  DtfTOlUttait  Of  ^(ina= -" -^"^  "O"' 
ffCCICjS,  tljtXC  l^  Xm  Pro^ifo,  (1J150  That  fuch  of  the  kte  iM"nalte- J|;^"^/;^^^^_^ 
ries,    Abbies,    Priories,    Nunneries,    Colleges,    Hofpitals,    Houfcs   of  ly  eKemj^t' 
Friers,  and  other  Religious  and  EcclelialUcul  Houles  and  Places,  and  from  oidi- 
all  Churches  and  Chappels  to  them,  or  any  of  them  belonging,  which  "'."'>'  J'^'"''- 
betore  the  Diiioiution,  Suppreliion,  Renouncing,  Relinquilhing,  For-  ei\^he""'u-h 
feitmg,  Giving  up,  or  Coming  unto  the  King's  Highnefs,  were  ex-  ^.  enjoy" 
empted  from  the  Vilitation  or  Vilitations,  and  ail  other  Jurifdiction  of  tlicir  £x- 
the  Ordinary  or  Ordinaries,  within  whole  Diocefs  they  were  Jituate'  or  emption  up- 
fet,   Ihall  Irom  henceforth  be  within  the  Jurifdiftion  and  Vilitation  "i^  „" Co'rn' "'^'^ 
the  Ordinary  or  Ordinaries  within  whole  Diocefs  they,  or  any  of  them,  l^w   .is 
be  liiuate  and  i'et,  or  within  the  Jurifdiclion  and  A'ifitation  of  fuch  Per-  Free  Cli;ip- 
fon  or  Perlbns  as  by  the  King's  Highnefs  Ihull  be  limited  or  appointed,  pels  md  Uo- 
this  Aft  or  any  other  exempt  Liberty  or  Jurildittion  to  the  contrary  not-  ^"J."j\^-'(|,^l'l 
witnitanding.  only' by''  '^ 

Coriiniiirion 
from  the  King,  and  tlic  I'ccond  by  CommifTion  from  the  Donor)  or  fuch  as  the  Crown  may  have  ex- 
empted or  fliall  exempt,  purfuant  to  the  Pov,  ers  granted  by  this  Statute.     Gibl".  Cod.  1018. 

17-  IntljC  Statute  of  i  &  2  P.  &  Mar.  cap.  8.  (U)IJSCD  rcpCal^  tljC 

g)tatutc  or  25 13. 8.  before  mentionctJ  ijcre)  tijcre  iu  tyy  Prov  do  (,i(i?0 

\Vhereas  by  the  Diiioiution  ofMonalleries  and  other  Religious  Houles, 
certain  Parith  Churches  and  Chapels  were  beiofe  exempt  Irom  the  Jurif- 
diction of  the  Archbilhops  and  Bilhop  of  the  Diocefs,  and  by  fpecial 
Exemption  and  Privilege  from  Rome,  were  under  the  Government  and 
Order  of  the  Abbots  and  Priors  of  thole  Religious  Houfes,  which  (aid 
Churches,  by  Colour  of  the  fiid  Exemptions,  be  now  of  Ipecial  Grant 
from  King  H.  8.  and  King  Edward,  under  the  Rule  and  Government, 
snd  JuriM'ftion  of  Laymen,  who  can  no  more  enjoy  that  Supremacy 
over  thelo  particular  Churches,  than  the  King  might  over  the  whole 
Realm,  Be  it  enacted,  That  all  fuch  Archbifliopsand  BilLops  in  their  Dio- 
cefs, and  ai!  other  Spiritual  Perfons  having  J urildi6tion,  and  their  Mi- 
nifters  and  Officers,  and  no  Lay  Perfon  or  Perlbns,  in  every  Church  and 
Place  within  the  Precm6l  of  the  fame,  being  exempt  or  not  exempt, 
may  freely  and  without  impediment  execute  their  Spiritual  jurildiction 
in  all  Points  and  Articles,  as  tho'  no  fuch  Exemption  or  Grant  had  ever 
been  made.     'BUt  uftet  ttjCrC  10  3  Provifo,  tljilt  tW  fljAt!  UOt  eUtenU 

to  toll  or  Qtminsflj  tlje  I5n\3i!cge  of  tljc  iimiicrritp  of  Cambridge  or 

Oxtord,  not  ti;C  Privileges  Ot  Prerogatives  gtniltCH  iKfOrC  tO  tlje 
CljUrCtieei  Cf  V\'ellminlter  nnti  NA'indfor,  *nOr  tlje  IV.wcr  Of  London,  V  i^\ 

nor  tie  prt jUtJicial  to  ftidj  ©cmporQl  lorus  aitO  l^onculoncrei  untfjin 
tlje  IRealm,  tuljo  lip  ancient  Cuftom  IjaDc  enjoi'tn  prol}atCf5  of  ^e(!a= 
nicnt0  of  tljcsr  Ccnanty  anu  otljerd,  luit  tijts  act  is  rcpcaicB  bi'  tljc 
statute  of  I  C-ii>  cap.  u 
18.  :fn  tijc  Statute  ot  i  EH/,,  cap.  2.  (tuljtcl)  19  an  ^ft  fot  iiniformi= 

tp  of  Common  ISramO  tljerCid  a  Provllo,  Cblj.)  That  all  and  lingu- 
lar ArchbilLops  and  Bifliops,  and  every  of  their  Chancellors,  Commif- 
faries,  Archdeacons  and  other  Ordinaries,  having  any  peculiar  Eccle- 
fialtical  Jurifdiftion,  Ihall  have  full  Power  and  Authority  by  Virtue  of 
this  A£t,  as  well  to  inquire  in  their  Vilitations,  Synods,  and  ellewbere 
within  their  luvifdiftion,  at  anv  other  Time  or  Place,  to  take  Occalions 
and  Informations  of  all  and  every  the  I'hhigs  above  mentioned,   done, 

commitOfed 


24-8 


Prerogative  of  the  King. 


comfnicted  or  perpetrated  within  the  Limits  of  their  Jurifijiction  or  Au- 
thority, and  to  punilh  the  fame  by  Admonition,  Extommunication,  Sc- 
quellration  or  Deprivation,  and  other  Cenliires  and  Procds,  in  like 
Manner  as  heretolcre  hath  been  ufed  by  the '^lecn's  Eccleliaflical  Laws. 

19.  In  tIjC  (lliD  S)tattlte  i  Eliz.  cap.  2  it  10  CnaCt^O,  That  fuch  Pri- 
vileges, Jurifdiftions,  Superiorities  and  Pre-eminences,  Eccleliallical 
and  Spiritual,  as  h;u  e  been  by  any  Spiritual  and  Ecclefiallical  Power  or 
Authority  exercifed,  or  may  lawfully  be  exercifed  or  ufed  tor  the  Vili- 
tation  of  the  Eccleliallical  State  and  Perfons,  and  lor  Reformation,  Or- 
der and  Correftion  of  the  lame,  and  of  all  Manner  of  Errors,  Schillns, 
Abufes,  Offences,  Contempts,  and  Enormities,  Ihall  for  ever,  by  Au- 
thority of  this  prefent  Parliament,  be  united  and  annexed  to  the  Im.pe- 
rial  Crown  of  this  Realm  ,  and  thit  the  King,  his  Heirs  and  Succef- 
fors,  ihall  ha\ei'ull  Power  and  Authority  by  Virtue  of  this  Act,  by  Let- 
ters Patents  under  the  Gieat  Seal  of  England,  to  Allign  &c.  to  Ufe^ 
Exercile  &c.  under  the  King,  his  Heirs  aud  Succellbrs,  all  Manner  of 
Jurifditlion  &c. 

20.  The  p^iiie  Place  may  well  be  viiitable  by  two  different  Powers.  So 
it  is  in  the.'Cdfe  of  e-jery  Cathedral  and  every  Diocefs,  which  Are  viiitable 
as  well  by  the  Metropolitan  as  by  the  Bilhop.     Gibf  Cod.  1151. 

21.  The  Archbilliop  of  D.  libell'd  in  the  Spiritual  Court  againll  the 
Dean  and  Chapter  there  for  denying  to  admit  him  to  vilic  them.  Tiie 
Detendant  fuggelled  for  a  Prohibition,  That  the  Chapel  -was  of  Royai 
Foiunidtwii^  benig  frfl  a  Moiiajlcry  of  Royal  Foundation^  and  aftevdoards 
tranjlatcd  into  fjcan  and  Chapter  ;  and  being  a  Donative,  ^v  as  exempted 
from  the  Vifitation  of  the  Ordinary.  Upon  a  Prohibition  the  PlaintilF 
declared^  That  this  Chapel  was  of  Royal  Foundation,  and  that  the  Or- 
dinary had  no  Vijitatorial  Power  there,  hut  what  he  had  by  the  Letters  Pa- 
tents of  Creation  33   H.   8.   which  esprcfsly  provide.   That  the  Archbijlop 

Jhall  have  no  Power  over  the  Deanry,  but  fuch  as  he  had  over  the  Pnor  and 
Convent  of  the  Holy  Trinity  Time  out  of  Mind,  Avhich  Priory  was  of  Royal 
Foundation,  and  had  Time  out  of  Mind  been  vilited  by  the  King  or  his 
Chancellor.     The  Archbilliop,  after  Oyer,  pleaded  That  the  King  did 

further  order  and  declare  in  the  faid  Letters  Patents,  that  the  Church  of  the 
Holy  Trinity  fiould  be  the  Archiepifcopal  i>eat  of  D.  as  it  was  before,  and  as 
it  ufed  to  be  i  and  the  Archbipop  fk'Oiild  exercfe  no  J/irifdiffion  there,  biti 

fuch  as  he  nfed  -when  it  was  a  Priory  ;  and  that  Time  out  oi MinA^ the  faid 
Archbipop,  and  his  Predecejfors,  Archbifhops  of  Dublin,  kept  their  Cathe- 
drals in  this  Chiirch  ;  and  that  the  Prior  and  Convent  before ^  and  the  Dean 
and  Chapter  JincK  the  Tranjlation,  xvre  the  Chapter  of  the  faid  Archbifbop,  and 
Time  out  of  Mind  had  been  vijited  by  them,  as  Occalion  required,  and 
traverfed  that  the  Priory  was  0/'  Royal  Foundation.  Upon  a  ipecial  Demur- 
rer Judgment  was  given  in  C.  B.  in  Ireland  for  a  Confultation,  and  that 
Judgment  affirm' d  in  B.  R.  there.  Upon  Error  brought  in  the  Houfe  of 
Peers  here,  it  was  argued,  That  this  being  an  Ecckftaflical  Corporation, 
is  by  common  Intendment  fubje^  to  the  Vifitation  of  the  Ordinary  of  the 
Place,  unlels  by  the  Patent  of  Creation  there  had  been  a  Vilitor  appomt- 
ed  by  the  Founder  i  for  all  fuch  are  Prima  Facie  fubjecl  to  the  Jurifdic- 
tion  of  the  Ordinary,  tho'  founded  by  the  Crown,  and  i^o  is  CorbCt'S 
Cafe,  in  D.  273.  That  the  only  material  Point  is,  Whether  this  was  of 
Royal  Foundation,  or  not  ?  which  was  not  the  Point  of  the  Cafe  between 
*Sci  CC.  f)  this  *  SirCljbifijOp  and  Dr*  J^arrifOU  fome  Years  paft,  who  was  a  Pre- 
Marg.  pi  2.  bendary  of  thi's  Church.  For  if  the  Priory  was  not  of  Royal  Founda- 
tion, the  Deanry,  into  which  it  was  tranflated,  cannot  be  foj  but  if  it 
was  of  Royal  Foundation,  then  the  TranQation  into  Dean  and  Chapter 
is  no  Prejudice  to  the  Founder,  he  remaining  Founder  Itill  •  for  nothing 
is  alter'd  but  the  Monaftick  Rule  and  Habit ;  and  (o  it  was  held  in  the 
©can  ann  GljaptCr  of  jQarlUlCb's  Cafe.  3  Rep.  73.  30  H.  8.  at  ^^'hich 
Time  the  Priory  and  Convent  of  the  Cathedral  Church  of  the  Holy 
Trinity  of  Norwich,  was  tranflated  into  the  Dean  and  Chioter.  So  that 


Prerogative  of  the  King.  249 

if  withifig  is  altered  by  the  'tran/lation,  the  Foiuido'  is  >iut  deprived  of  bis 
Right  oi  Patro/j.-^ge  ,  tnithtr  is  lie  Vijitcr  of  bis  Right  ofVifttatioii ;  becaufe 
it  is  Itill  Che  ianie  Body  Corporate,  tho'by  another  Name.  And  fudg- 
metit  was  aiHrm'd.  8  Mod.  iH3.  Mich.  lo  Geo.  1724.  Trinity-Chapel 
ill  Dublin  V,  Archbifliop  of  Dublin. 


(F.  f)     Exemptions.      [Vifitatlon.] 

i.nni)€  l^inn;  miuljt  ccc;npt  Abbevs  from  tljc  r)iritiition  of  The  Kin- 
X     tae  Ordinary  i  foc  tijc  i^uiij  i.s  €)Uprcmc  ^DrOllUU))*   £)a,  "^'y  ^•":«  ^ 

COlIliilCnO*    73-  FyeeC:aj,el, 

and  exempt 

jui-ifdiftion  of  the  Ordinary.  Thi;  is  agreed  on  all  Hands;  and  our  Law-Booki  add,  Thar  he  m.iy  /;- 
ceme  aj:)  Suhjecl  !o  f'cunii fuch  a  CKipel,  ivith  fitch  Exemption;  which  however  poficively  faid,  fccms  not  to 
be  a  fe.fevidrnt  Truth;  ard  yet  I  find  not  any  Inlt.inces  alleg'd  to  confirm  ir.  'Tnat  many  p'l-ee 
Cha.eis  h:ive  been  in  the  Hands  of  Subjecfts,  is  not  denied  ;  but  it  docs  not  therefore  fallow,  that  thole 

were  not  ori;vn.illy  of  Royal  Foundation.     GibfCod.  237. The  King  may  ere;t  a  Free  Ch.ipel 

and  exempt  it  from  the  Ordinary.  And  I  think  he  m.iy  do  it  wichout  Confecration,  as  in  the  InlLnee 
Ot"_V\  hiteli.dl  ;  but  tho*  the  Codex  is  unwilling  to  grant  it,  yet  our  Books  are  very  evpreQ,  that  the 
Kirg  may  licence  a  Subjeft  to  found  a  Free  Chapel,  and  exempt  the  fame  from  the  Jurifdictloa  of  the 
Ordiiiary.     VVatf.  Clerg.  Law  646. 


B 


(G.  f )     appeal.     *  Delegates.  *  T!ie  Com-t 

of  J  )c'ej;  ites 
Y^the  Statute  25^H._^8.  ^ppCalSl  tO  Rome  arc  Prohibired,  ^^^'l^'^j'^ 


Ordained,    that  for  Defauic  ot  Juitice  in  any  of  the  Courts  ot'the  j^i7L] 

Arcnbilhops  ot  this  Re  dm  &ic.   it  ihall  be  lawful  to  appeal  tO  tijC  lltilltj  delegated, 
mfjiS  ^mzt  OfCijnn{;Cr5),;uid  thereupon  a  Cummiirion  ihall  be  f  grant-  ^^'^P  ^^ 

ed  .<cc.   aiva  ip  a  I'loviio  Circa  nnein  <i5)tatuti,  an  appeal  is  given  to  J^^;'?  [;vf"^ 

the  King  in  Civuicery,  UpOU  6i)ciiti:ilCC0  Ul  li^laCCjJ  ej;er,ipt,  in  the  lame„,;^;,„  u-i. 
Manner  as  was  uled  betore  to  the  See  oi.  Rome.  der  the 

Great  Seal, 
UDon  Appeals  to  the  King  in  time  C.xjes.  i  ft  When  a  Decree  or  Sentence  is  given  in  an  Eccleiialiical 
Cdu'c  l^v  the  Archbilhop,  or  any  of  his  Oficials.  2dly.  When  any  Decree  or  Sentence  is  given  in  any 
Eccielialtic.il  Caufe  in  Places  exempt,  or  Peculiars  belonging  to  the  King,  or  to  an  Archbi:hop.  ;dlv. 
When  a  Sentence  is  given  in  the  Ccivt  of  Jdmir.xity  according  to  the  Civil  Law.  VVojd's  Ir.it.  535. — '~. 
S.  P.  4ln(i.  ;;9.  cap.  74 S.  P    GoJolp.  Rep.  1  \6.   cap.  1 1.  S.  15. 

f  The  ijtatute  goes  on  and  lays,  That  a  Commiirion  fliall  be  granted  under  the  Great  Seal,  to  certain 
Perfons  lo  be  named  iy  t-e  Khiff,  ii;..o  fi.ll  thereby  have  Power,  as  in  Cafes  of  .appeal  from  the  .Admiral  Qurt, 
to  hear  and  def.mte'y  to  detenrii'ie  altfuch  appeals,  and  the  Caiifes  concerning  the  fame,  and  from  nvhcfc  De- 
cree or  Sent-.'nce  no  jurther  Jppea! jhall  be  had.  But  note.  In  Cafe  where  a  Sentence  is  given  bv  Gomnif- 
iioners  delegated  ny  the  Prince,  as  by  the  late  Vifitors  Anno  i  Eli/,,  the  Party  grie^jed  app'almg,  t'uch 
Appealis  out  of  the  Orders  prclcribcd  by  the  Statute  of  24  H.  S.  and  25  H.  S.  cap.  19  And  the  Prince 
in  th  u  Cafe  m.iy  grants  neiv  CommiJJ'ion  to  others  to  determine  that  y-lpfeal  And  this  was  done  by  the  Opi- 
nion of  (everal  Juftices  in  ©OODmail'S  (Laff,  deprived  of  the  Deanry  of  Wells.  4  Inll.  540.  cap.  -4. 
cites  a  Ma-.u'cript  Report  of  Lord  Dyer. 

The  Bijhtp  ot  Winton  is  made  Fijitor  of  J/agdalcn  College  in  O.^ford  by  the  Etinder,  and  exempted  from 
evy  Ordinary  &c.  Dr.  Covcney  Preiideut  of  the  faid  College,  was  deprrjed  by  the  P'ijitor  ;  and  from  his 
Sentence  appealed  to  the  S^ieen  in  Chinccry.  It  was  rei'olved  by  the  Juftices  to  wh'om  this  .Appeal  iv.is 
referr'd,  they  having  conterr'd  withCi/ilians,  That  the  Appeal  doth  not  lie  ;  for  it  is  out  of  the  Statures 
24  8c  25  H-  S.  cap.  12.  For  this  Deprivation  is  a  Matter  m.-erly  Temporal,  and  as  if  done  by  a  Lav  Pa- 
tron.    So  that  if  lie  be  expell'd  he  may  have  Ailife,  or  fuch  Sun  at  the  Clomraon  Law.     D.  209.  pi.  20, 

Mich.  ;  &  4  Elii.   Dr.  Covcney's  Cale S.  C    cited  4  Inft.  940.   as  Dr.  Covency'sCafe,  Prelident  of 

New  College  in  Oxford. S.C.  cited  A rg,  4  Mod.  iij.  116-     And  there  theCTafeo.'  £5!)!rai"  in 

the  Year-book  of  E.  3.  Fitr.h.Tit.  Aflife.pl.  i  jo  is  cited,  that  he  being  deprived  by  the  OrJin.irv  v.here 
tlie  Foundition  was  Lay  brought  an  Aliife  ;  and  it  was  held  good.  And  Ibid.  124  The  Cour:  !aii  that 
Shir.ix  havii;ga  Donative,  a'.d  being  d.prived  by  the  Archbifhop  of  York  as  Ordinary  and  Vifitor, 
and  another  Deing  collated,  the  Queition  was.  Who  was  Vifitor?  And  it  appeared  plainly  that  it 
could  not  be  the  Archbifhop,  becaufe  the  M,itter  was  not  Spiritual,  it  was  in  Ca-'e  of  a  Lay  Hofpiral, 
■wliich  had  no  Spinuial  Polfelfton,  it  was  neither  College  nor  Convent;  and  therefore  the  .Affdc  was 
held  good,   which  proves  nothing  in  the  Calc  of  a  Spiriuial  Corporation  ;  for  if  the  Depriv.uion  h  id 

R  r  r  been 


250  Prerogative  of  the  King. 


been  by  a  proper  Vifitor,  and  one  who  had  a  lawful  luiilciittion,  liis  Sentence  would  have  been  final,  and 
1  o  Ailiie  could  have  been  brought  to  examine  it  Trin.  4  VV.  Sc  M.  B.  R.  in  Clalc  of  Philips  v.  Bury.-- 
6-how.  Pari.  Cafes  47  Arg.  in  the  Cafe  of  Philips  v.  Bury,  it  was  inhlk-d  that  this  Cafe  ot  Dr.  Covcney 
in  D,  209.  nor  that  of  I^ARCtfS'jff  Caft  11  Rep.  99.  of  an  AlRfe  lying  btcaule  of  No  Appeal,  will  not 
upon  Perufal  warrant  the  Dilhnttion  ;  for  that  the  Party  Is  a.s  much  concluded  in  the  one  Ca!e  a.s  in  the 
other,  and  that  it  i.s  reafoniible  to  fufpctt  that  Ci(e  not  to  be  Law,  becaufe  that  i.s  impracticable  which 
it  is  brought  to  prove  The  Head  of  the  College  cannot  maintain  an  Alhfe  for  hi.s  Office  of  Headfhip ; 
He  hath  not  fuch  an  Eftatc  as  will  maintain  that  Writ ;  He  hath  no  fuch  Sole  Stifin;Tlie  w  hole  Body  of 
the  (College  has  an  Interelf  therein  ;  He  has  no  Title  to  the  Monies  in  his  own  Right,  till  a  Dillribution 
thereof  is  made  by  Confenr ;  He  is  the  only  vifible  Head  indeed  of  the  Body,  but  has  no  fmgle  Right. 
And  that  in  <JippliforD'iJ  CafC  it  was  laid  by  Lord  Hale,  that  it  was  impofl'iblc  he  could  have  an  Alhfc. 

Kote,iti,s      2.  But  It  (0  to  be  obfcrijcti  tijnt  this  Appeal  t0  tlje  IMm  i"  Cljatv 

commonly  CCl'Pj  is  only  I)}?  tije  5g)tattlte  afOrefatH,  upon  a  Sulc  in  the  Archbilhop's 
faid,  there  Court,  Of  in  a  Peculiar  exempt  j  ftif  tf  tijCtC  llC  fl  Suit  upon  a  Commiiiion 
^rtrrJio,-  g^'neral  of  the  King,  tliete  HO  SippCa!  MBV  bC  to  the  King  in  Chancery, 

^n  the  Sir,:  wttijiu  tlje  ©tntutc  ot  tijc  £5t|)  bp  tijc  WaxM  mxzxm ,  aniJ  tYjtw 

Mm:u.iI  of    fore  there  may  be  *  an  Appeal  to  the  King  generally,  il^  \)Z  10  tijC  ^U= 

the?vingbe-  p^f^^j,  j^f^-jQ  j,f  ^-jjj  (i?cc!cua(lical  3iurt0iJiftiou  "Qii^m  tlje  jaealui  ^  mm 
cwcibr  tOisi  ouijijttobe  upon  a 'BilJ  figneB  W  ijim,  bcfarc  t^e  Cijaitccilot 
or  Lord      map  make  t'je  ConinufTion  of  Delcptes  to  ijcav  n,   "But  upon  ap= 

Keeper  can   peafs  tipOU  tlje  ^tatUtC.  the  Chancellor  map  grant  the  Commiifion  cf 

iflue  out  ^nr.felfofCourfe,  uiitbout  an])  Bill  ligned^  5^,6.  ^repijeu  Csix-- 

miliioroV  Ktnef  wa0  tieprii3eD  upon  a  ComaufTion  of  Delcpteei,  ani3  \)z  ap' 

Deie.cates,  pcaict!  to  tijc  Mw^  BCitctalip,  auti  not  to  tljc  l\x\\^  \\\  Cijantcrp,  ana 

notwith-  tljereupon  tlje  Sentence  vcpcalcu*  i  ^ar»  m  3  baije  fjeaio  bp  Ee= 

f!.inding  p,3^f  Q^  ^^^  %mm  i  mm  fa  uia^  it  none  in  tijc  latB  Hartfo-rd'^ 

of^'r";  Cafe  about  tlje  i  M^ 

H.  S.     VVatf.  Clerg.  Law    5(5. 

Williams  J.      3.  Clje  DClea:atC0  may  excommunicate.  li).  io»  3!a»  iO*  [©ai'D]  ]ptt 

held,  That  crrbok  to  be  relolijeD  bp  all  tlje  Juflice^  in  tde  0.tcljbii]jop  of  Canter 

the  Court  of  /if.,r» 

Delegates       'il'«lC* 

cuuiol  prcyiource  a  Senter.ce  of  Excmnimiicafwn  ;  and  faid  that  they  had  lately  adjudged  that  Point  againft 

the  Court  of  Delegates      2  Bulft.  4.  Mich.   lojac.  B.  R.  in  Cafe  of  Stevenfbn  v.  Wood. But 

Wood's  Inft.  505.  fays,  That  if  the  Delegates  in  Ecclefiadical  Caufes  are  Spiritual  Perfoiis,  they  may  pro- 
ceed to  Excommunication ;  if  they  are  all  Laymen,  the  Fault  is  not  in  the  Law,  bu:  in  the  Nomination. 

The  Power  of  the  Judges  Delegates  is  Poteftas  dekgata  corrir'ere,  jmi  exequi ;  they  have  Power  there  to 
examine,  but  not  to  correft.     Per  Williams  J.  2  Bulil.  4.  in  Cafe  of  Stevcnfon  v.  Wood. 

Tho'  the  4.  '^fjtp  may  commit  Adminiltration.     ipjl»  10  3ia+ 

Court  of 

Delegates  may  revoke  or  confirm  an  Adminiffration,  yet  it  ffill  remains  a  ^f£re,  <v;hetler  they  may  grant 

it  originally  ;  and  in  the  firft  Inffance  this  was  a  Point  (fated  in  the  Cafe  of  ♦  ^tflunfCll  i).  ®lOOO.    10 

Jac.  I .  and  the  better  Opinion  was,  that  they  could  not.     Watf  Clerg.  Law  58. *  .S.  C.    2  BuKt. 

4.  accordingly  ;  but  the  Doctors  of  the  Civil  Law  differing  in  Opinion  among  themfelves,  the  Courc 
pronounced  no  ablblute  Judgment,  but  it  was  adjourned,  and  not  fpoken  to  again.  But  Williams  J. 
cited  one  13rackcnburj'C'0  (Laff,  where  it  was  adjudged,  Thar  they  could  not  grant  Letters  of  Ad- 
miniilration,  they  having  no  Power  fb  to  do. 

Ill  a  Prohibition  the  Cafe  was  ;  A.  died  Inteflate.  B.  his  Brother  gets  Adminiftration  in  the  Inferior 
Diocefs ;  M.  who  pretended  to  be  Wife  of  A.  fuggefted  Bona  Notabilia,  and  procured  a  Prerog-ative 
Adminiftration  ;  B.  appealed  to  the  Delegates,  and  died  ;  C.  his  Son  and  Heir  gets  the  Prerogative  Ad- 
miniftration repealed,  and  Adminiftration  granted  to  himfelf  M.  prayed  a  Prohibition,  fuppofmg  that 
bv  the  Death  of  one  of  the  Parties  the  CommilTion  was  determined  ;  but  the  CourT  were  of  Opinion 
againft  the  Prohibition,  and  that  the  Delegates  Authority  to  proceed  in  that  Cafe  continued  notwith- 
ffanding  B.'s  Death  ;  for  by  the  Words  of  their  CommifTion,  the  Ecclefiaflical  Lav/  is  to  be  their  Rule, 
and  by  that  Law  a  Suit  does  not  abate  by  the  Death  of  the  Parties.  And  Hale  faid.  The  Appeal  is  to 
the  King  in  Chancery,  and  is  by  Reafon  of  his  Original  Jurildirlion,  and  thereupon  he  grants  a  Com- 
milTion to  hear  it ;  now  if  he  could  hear  it  in  Perfon,  he  may  certainly  determine  the  C.iufe  aft«r  the 
Death  of  the  Parties,  and  conlequently  they  to  whom  he  has  delegated  his  Authoritv,  may  do  the  iame. 
But  upoh  the  Attorney  General's  defiring  to  be  heard,  the  Court  gave  further  Time.  Vent.  155. 
Trin.  I';  Car  2.  B  R.  Pollexfen  v.  PoUexfen.— 2  Lev.  6  Pafch.  25  Car.  2.  B  R.  fays,  the  Prohibition 
was  denied. — 2  Keb.  779.  S.C.  and  that  the  Prohibition  was  difcharged  Nifi. 

It  was  the  better  Opinion,  and  in  a  Manner  agreed  that  B.  R.  may  prohibit  the  Delegates  from  Ccm- 
niHting  Jdminiflratioh.  I  ft.  Becaufe  the  Authority  of  the  Delegates  is,^/'ic?;  by  2  5  //.  8.  and  fo  their 
Jurifdi&ion  does  not  commence  by  Spiritual  Law  ;  but  as  the  Pope  had  an  ulurped  Power,  which  is 
trarsferr'd  to  Lh«,  King  by  Parliament,  and  the  King  gives  it  to  the  Com mifli oners  Delegates.  And 
zdlv.  Becaufe  ihcy  cannot  be  Judges  in  their  own  Caufe.    Lat.  S<J.   i.n  Cafe  of  Reeve  v  Denny. 

-7.   A 


Prerogative  of  the  King.  2f^r 


5.  A  Sentence  in  the  Spiritual  Court  at  L.  was  had  againft  the  Plain-  ^^o  4^2-   pi 
rift",  who  afterwards  appealed  to  the  Arches,  where  the  Sentence  was  u/^v-^'^'f 
affirm'd,  and  adjudged,  ut  fupra,  againlt  the  Plaintiff     Whereupon  he  ^^■,ji|'^^'^jj 
ftied  a  Commiirum  to  the  Delegates,  and  the  Matter  was  re-exainined,  V-'lfrboife 
and  Sentence  then  given  lor  the  Plaintiff     Thereupon  another  Com-  '-^^vs.  t'«; 
iniliion   was  fued  out  to  re-examine  this  Matter.     A  Prohibition  was  ?"",'7 '^°^' 
prayed  to  ftay  it,  becaufe  the  25  H.  8  ena£ts,  that  a  Sentence  belore  the  all^hc"  '''^ 
Delegates  iliall  be  tinal,  and  conlequently  this  fccond  Commillion  is  not  jufticcsof 
well  awarded.     But  it  was  aniwered.  That  the  Queen  hath  by  Law  an  £"gl.3nd, 
Ablblute  Power  to  grant  Commiliions  to  Re-examine,  which  is  not  re- 'p  "^ , '^^l 
llrained  by  the  25  H.  S.     And  that  it  hath  been  lo  rul'd  belore  thefe  diS'^that 
Times  i  and  of  that  Opinion  was  Popham  j  but  becaule  it  was  a  new  rhe  Proliibi- 
Cale,  they  would  ad\ile  thereof.     Cro.  E.  571.    Trin.  39  Eliz.  B.  R.  tion  was  not 
Gervis  v.  Hallewell.  '  g'a:itable. 

Pope  iifed  to  review  in  fuch  Ca'es  after  Sentence  by  the  Legate  :  and  whatever  the  Pope  was  wont  to 
do  i^  uiired  t  >  the  Ciown  by  the  Statute  25  H.  8.  cap  20.  [19.]  Rut  they  agreed  that  this  Review 
iiould  be  final  without  further  Appeil.  Fcnner  feem'd  e  contra,  and  that  the  Pt.pe's  Authorirv  is  abro- 
gated and  extintl  and  that  no  Appeal  is  given  by  the  Statute  any  further  than  to  the  Delegates  ■  and 
tiie-'tfore  it  could  not  be  lawful  to  go  any  further.  But  at  another  Dav,  by  a  Conference  with  al'l  the 
Juflices,  they  aj;recd  that  the  CoinmiTion  was  well  granted,  and  that  Confultation  fliould  be  awarded  • 
but  t';at  if  the  Crnniiflioners  do  not  proceed  to  the  Examination  accordipg  to  the  Common  Lav,  they 
iball  be  rcftrained  by  Prohibition. 

6.  The  Delegates  cannot  make  a  Divijion  of  Intellates  Gccds.  Per 
Hubbard.  Noy  24.  in  Took's  Cafe. 

7.  The  Delegates  cannot  interpret  a  Statute.  Per  Hubbard.  Noy  24. 
in  Took's  Caie. 

8.  The  Court  of  Delegates  have  no  Fewer  to  prove  ITlUs  ;  Per  Williams 
J.  2  Buls.  4.  Mich.  10  Jac.  B.  R.  in  Cafe  of  Stevenfon  v.  Wood. 

9.  The  ]Qd^QsDQ\ii<y'Xte.sm\:ii^J!td^e  according  to  the  Ecckjrafiica!  Laiv. 
Per  Ld.  Keeper.  Chan.  Cafes  201.  Palch.  23  Car.  2.  in  Cale  of  Vanbrouoh 
V.  Cock. 

10.  The  Judges  and  Civilians  ruled  on  Debate,  that  the  Teflimonyofone^, 
who  U'as  examined  tn  Chancery  bet-'s:ccn  the  fame  Parties^  and  Crols-ex- 
amified  there,  Ihould  be  read  before  the  Delegates;  though  it  was  objected, 
that  the  Appellant  here  fliould  take  the  Advantage  here  which  he  ihould 
have  had  if  he  had  been  Crofs-examined  i  For  Crols-examining  a\\  it- 
refs  lets  him  Upright  in  Chancery  but  not  here.  2  Chan.  Cales  250. 
Hill.  30  &  31  Car.  2.  Gargrave  alias  Fan  v — [So  the  Book  is.] 

11.  The  Reformatio  Legiini^  fpeaking  of  the  Appeal  to  the  King,  adds  Watf  Clero-; 
as  follow,  ^w  cam  fuerit  Catfa  devohtta^  earn  vel  Coiuilio  Provi7iciaIi  de~  Law  56. 

Jiniri  'vohnnas^  Ji  gravis  fit   Cat  fa,  vel  a  tribiis  Epifcpis  a  nobis  ad  id  Con-^^)'^^  ^''','s  is  a 
Jtitiiendis.     But  in  modern  Praftile  (viz.  only  trom  the  Year  16^9)  there  ^'j'^,^'''^"!'' 

rr  ,   rr      I  j  rr-  1    t       j  ■         j   r  1        r        1    ,\^  ■     ^nd  that    the 

are  Tempora/  Jtinges  and  Temporal  Lords  appomted  tor  the  hnal  Determi-  Practice  has 
nation  of  Matters   conietledly  Spiritual.  Gibf.Cod.  pag.  1082. been  all  a- 


c)  nor  from  1604  are   tliey  Commiffion 
lound  inabove  one  Commiffion  in  foity  till  rhe  Year  1639  i  From  whence,  v.itli  Eccle- 
(i.  e.  from  the  Downlall  of  Bilhcps  and  their  Jurifdi&ion  which  enfued,)"afticks. 
we  may  date  the  prefent  Rule  ot  Mixtures  in  that  Court.  Ibid.  Introd. 
Dilc  curie,  pag.  21. 

12.  There  lies  no  ylppeal  to  the  Hotfe  of  Lords  fi-om  a  Sentence  in  the 
Delegates;  For  they  ainnot  have  any  original  J  urifdictioni  becaufe  it 
is  a  Matter  grounded  upon  an  Aft  of  Parliament,  and  the  Act  gives  them 
.nonci  Per  Lds.  Commilhoners.  2  Vern.  n8.  Mich.  1689.  Saul  v.Wilibn. 

13.  A  Woman  was  fuppofed  to  be  Married  firit  to  A.  and  alterwards 
to  B.  Both  A.  and  B.  being  then  living  ;  and  upon  a  Difpute,  the  Spiri- 
tual Court  afiirmed  the  Hrlt  Marriage,  but  was  difailowed  on  Appeal  to 
the  Delegates,  and  the  2d  held  good ;  There  was  Ilfue  by  the  2d.  but 
no'ic  by  the  hrlt.     I'poa  a   Petition  for  a  Commiffion  of  Review  to  re- 

\erle 


e 


2^2  Prerogative  oi  the  King. 


verfe  the  Jafl  Sentence,  Ld.  C.  King  fliid,  That  -x  CcmmiJ/ion  of  Rtvitw 
is  mt  a  Matter  of  i?;^/?/ but  purely  in  the  Difcretion  of  the  Crown,  and 
as  iuch  CommifTinn  tends  to  Bailardize  the  lilue  he  was  againft  it,  and 
fhould  advife  the  Crown  accordingly.  2  Wms's.  Rep.  299.  Trin.  1725. 
Franklvn's  C^ife. 


(H.  f)    Appeals. 

An  Appeal    i^  'T  f  ^  Sentence  llC  W^Clt  in  the  High  Comniinion  Court,  HO  SppCilI 

did  per  Ha       j[  j.fg  fj.j,„^  jf  j,^  cpcro  3jurc»  99,  5  jac.  13.  09*  8  3'nc.  015, 
H>ijh  Com-     2.  But  upon  fuel)  Sentence  nn  appeal  map  be,  if  tlje  parti'  cnn  ac^ 

niiflK)!!  qiUre  a  Ipecial  Commiliion  to  examine  it.  {^«  5,  3|aC»Q5» 

Court  when 

in  Bcirg  ;  becaufe  they  themfehcs  mere  the  King's  Delegates,  as  afting  by  an  immediate  Commiflion 
from  him.  And  there  was  no  Remedy  againft  tlieir  Sentences,  ini  a  veiv  CcmmijJ'ion  to  others,  grantable 
by  Virtue  of  he  Royal  Prerogative  independant  on  the  Authority  given  by  25  H.  8.  or  any  other 
fctaiute.     Wati' Clcrg.  Law.  55,5^- 

3»  I),  2.  OrUainCH,  tijnt  ^ppCailS  fljOtlltl  be  from  the  ConfiHory  to 
the  Arch-deacons  ftoill  fjIUt  to  tlie  Biliiop;  Itom  IjlUl  to  the  Archbilhop  ; 

fcom  Ijim  to  the  King,  jfor,  265.  ^ipeeo  458* 

4.  But  99attl)etD  pans?  ija0  furtijer,  tljattlje  King  commanded  the 
Archbilhop  to  make  an  End  of  the  Suit,  and  that  he  proceed  no  further 
without  Licence  oi'the  King.  0peet5.  45^*  I^H*  ^HSlOr*  94*  T3* 

5v  Jn  Eoffce  Jpoijcnt!.  fol,  303*  aitn  San.  augiar*  94*  it  is,  tijat 

Appeal  fijuti  Be  from  the  Archdeacon  to  the  Billiop  commencing  with  the 
Archdeacon  without  fpeaking  of  the  Conhfcory,  ailtl  fO  COOlUit  1)10  6, 

€piJf!c  tiw  it,  ann  tljcre  f}eofaferijejsiljc"|?oiucroft!jc0mo;iipon 
Ccclcfiafiicai  3"uni5iaion  to  be  ancient  anD  not  neiu* 
6,  amono:  tlje  petition^  m  l^aiiianient  ise.  u  tljerei^fiidjpc^ 

titiOn,  IJBiUiani  tie  BOttmgijam  Clericus  petit,  quod  poUit  proiequiAp- 
pellationem  fuam  in  Curia  Romana  &:c.  Rex  non  conceliit,  quod  Privi- 
Jegium  fuum  infringat,  fed  impetret  intra  Regnum,  ii  libi  viderec  expe- 
dire. 

7.     24  H.  8.  cap.  12.  S.  5.   Ena£ls,  that  Appeals  in  Can  fa  'Tijiamenta- 

rj',  Caiifes  of  Matrimony  and  Divorces,  Right  of  7'ithes,  Ollat ions  and  Ob- 

ventions.,  fliall  be  fued  froni  the  Archdeacon  or  his  Official^  if  the  Matttr 

he  there  coviinenced,   to  the  Bilhop  of  the  Diocefs. 

A  rarfonof      S.  6.  And  if  the  Matter  be  there  commenced  before  the  Eifliop  Diocefan  or 

a  Church  in  J^is  Commiffary,  then  within  1$  Days  after  Sentence  given ^  an  Jppeal  may 

orwinton    ^^  '^  ^^^  Archbifhop  of  the  Province  to  be  there  defyitely  adjudg'd. 

■was  depriv- 
ed, and  he  appealed  to  the  Archbifhop  of  C.  in  Curia  Prxrogativa  fiia  de  Arcub'is  ;  the  Queflion  was, 
Whether  this  Appeal  was  well  brought  ?  becaufe  the  Statute  niertions  only  tlie  Archbifliop  of  the 
Province  where  &c.  without  limiting  any  Court  in  certain.  It  was  the  Opinion  of  all  the  Juftices  of 
6.  R.  that  the  faid  Words  in  the  Appeal,  viz.  (In  Curia  Prarrogativa  fua  lie  Arcubus)  were  void  and 
fuperfluous,  and  that  the  Words,  viz.  (to  the  Archbifhop  of  C  )  were  fufficient  to  have  the  Benefit  of 
the  Appeal  by  tiie  Equity  and  Intendment  of  this  Statute.     D.  240,  pi.  46.  Trin.  7  Eliz.Anon. 

In  Trin.  5         S.  >j.  If  the  Matter  be  commenced  before  the  Archdeacon  of  any  Arch- 

W,  5.  the  bifhop,  or  his  Cominijfary,  the  Appeal  may  be  within  15  Days  Sc  to  the 

ci-ecd  ^that  ^^dltwcc  or  Aiches  of  the  fiiid  Archbifhop,  and  from  thenca  zvithin  other 

no  Appeal  15  Days  i3c.  to  the  Archbifhop  himfelf,  and  no  further. 

could  be 

made  from  the  Dean  of  the  Arches  to  the  Archbifhop,   becaufe  it  was  one  and  the  fame.  Carth.  1:0. 

in  Lee's  Cafe. But  Ibid,  in  Marg.  the  Reporter  fays,  tiiat  the  Statute  24  H.  S,  1 2.  is  e.^prefsly  tB 

the  contrary,  but  that  this  Statute  was  not  mentioned. 

f.  8.  And 


Prerogative  of  the  King.  253 

S.  8.  J/ii^  il  the  Cafe  be  commenced  before  the  Archbifliop,  then  to  Le 
there  definiti'vcly  determined  without  lurther  Appeal. 

S.  9.  Where  the  Matter  touches  the  King,  the  jippeal  may  be  vithin  1$ 
Bays  to  the  Higher  Convocation  Houle  of  that  Province,  and  no  farther, 
but  filially  to  be  there  determined. 


oft 

not  hold  two  Dignities  fimul  &  femel  in  the  fame  Church,  and  the  firlt  ^f^^^  ciiTpter 
was  void  by  the  Canon  Law.  The  Dean  appealed  to  the  Archbipop.,  of  Fernet, 
who  affirmed  the  Sentence.  \N'hereupon  he  appealed  to  the  Kuig;  but 
the  King  granted  the  Deanry  to  one  Turner  ;  alter  which  the  King  died. 
Queen  Mary  granted  another  Commiliion  to  the  Delegates,  vvhu  rfiored 
htm  to  his  Deanry.  Alter  the  Death  ofQueen  Mary  fviz..)  Anno  i 
Eliz.  Turner  by  a  ne'-jo  Commi[fton  "-jcas  rejim-ed  by  Sentence,  and  that  Sen- 
tence alter  affirmed  by  other  Commillioners,  notvvithllanding  the  Re- 
chiimer  and  Appeal  oiG.  Dyer  273.  pi.  35.  Pafch.  10  Eliz.  W'alrond  v. 
Pollard. 

10.  Stephen  Gardiner,  Billiop  of  VV'inchefter,  was  dcprroed  at  Lam- 
beth by  Ccmymffion  from  E.  6.  made  to  10  Perfons  proceeding  thereupon 
Ex  Otncio  mero,  mixto  vel  Promoto,  r.mni  Appellatwne  remuta,  Summarie 
de  Piano,  without  any  Form  or  Figure  of  Judgment,  but  only  upon  an 
Inquiry  into  the  Truth  of  the  Fatt.  4  Inll.  340.  cites  a  MS.  Rep.  of  Ld. 
Dyers. 

10.  An  Appeal  being  a  natural  Defence  cannot  be  taken  aivay  by  any 
Prince  cr  Poller  ;  and  in  every  Cafe  generally,  when  Sentence  is  given 
and  Appeal  made  to  the  Superior,  the  Judge,  that  did  give  the  Sentence, 
is  bound  to  obey  the  Appeal,  and  to  proceed  no  further  until  the  Superi- 
or hath  examined  and  determined  the  Caufe  of  Appeal  ;  nevertliclefs, 
where  this  Claufe  (JppcL'jtione  remcta')  is  in  the  Commiliion,  the  Judge, 
that  gave  Sentence,  is  not  bound  to  obey  the  Appeal,  but  may  execute  liis 
Sentence  and  proceed  further,  until  the  Appeal  be  received  by  the  Supe- 
rior, and  an  Inhibition  be  fent  unto  him;  tor  the  Claufe  (Appellatione 
remota)  hath  three  notable  EffcBs  ^  lit,  That  the  Jurifdiftion  of  the 
Judge  that  ga\  e  Sentence  is  not  by  the  Appeal  i'ufpended  or  Hopped  ;  lor 
he  may  proceed,  the  lame  notwithltanding.  2dly,  That  lor  Proceeding 
to  Execution  or  lurther  Procefs  he  is  not  puniihable.  3d!y,  That 
thole  Things  that  are  done  by  the  faid  Judge  after  fuch  Appeal  cannot 
be  faid  void  ;  tor  they  cannot  be  reverled  Per  viam  Null  i  tat  is.  But  if 
the  Appeal  be  juil  and  lawtlil,  the  fuperior  Judge  ought  of  Right  and 
Equity  to  receive  and  admit  the  lame,  as  he  ought  to  do  Juitice  to  the 
Subjects ;  and  fo  if  the  Caufe  of  the  Appeal  be  jufl:  and  lawt'ul,  he 
ought  to  reverfe  and  re\oke  all  mean  Acts  done  after  the  Appeal  in  Pre- 
judice of  the  Appellant.  Thus  far  the  Report  oi  the  Lord  Dier  truly 
Tranflated.     4  Inlt.  340.  cap.  74. 


(I.  0     The  EffS  of  Appeal.  ""^"-^^ 

».  T  Jf  after  Sentence  t^)Z  \3tXXt\>  tippCtllei  the  Sentence  is  utterly  fuf-  The  vcrv 
X  pended  llUnng  tljC  appCilU  2  l\.  2.  QlUU'C  JUipCtrt*  143*         brinj^in-'  n 

Apj  eal  is  a 
Sufpenfion  of  the  firft  Judgment  in  the  Spiritual  Court  for  the  principal  NIatter,  but  not  for  the  Colts  ; 
Per  Lord  Keeper  Egcrton.     Goldsb.  119.  pi.  4.  Hill.   45  Elii.  in   the  Gale  oi   VVilloughby  v.  VN  il- 

loughby. 

2.  If  a  S9an  ttppCillSlI  from  a  Sentence  of  Excommun'caticn  he  may 

celebratttMais.     20  p.  6*  2J.  ll, 

S  f  f  3.  So 


2  54-  irerog 


Prerogative  of  the  Kina 


b- 


?.  So  aftCV  %pCal  \)Z  may  bring  Actions  at  Common  Law,    nilU 

"^jt  to  be  aniu)a-ci3*   Duti.  20  0.  6,  25, 

4.  If  an  inferior  Spiritual  Court  commits  Jdii/itiijiratioii^  end  an  Appeal 
is  made  iVom  chence  to  the  jirches  and  there  the  firlt  Adminiltru:ion  is 
affirmed,  the  Ufe  is  to  remit  the  Caufe ;  but  when  the  firil  Sentence  is  re- 
lurfld  the  firjl  Court  iliall  be  oii/ted  of  Jiinfditiion^  and  the  Court  that  re- 
veries it  &c.  Ihall  commit  de  Novo.     Lat.  85.  Reeve  v.  Denny. 

5.  It'  a  Church  be  only  voidable  by  J^eprivation,  and  the  Ecclefiafti- 
cal  [udge  hath  aftually  pronounced  a  Sentence  of  Deprivation  againft 
the  incumbent,  )  et  ij  the  Perfon  deprived  cifpeals^  the  Church  is  not  a6tually 
wid  \'o  long  as  the  Appeal  dependeth  j  And  if  the  Sentence  of  Depriva- 
tion upon  the  Appeal  he  declared  void,  the  Clerk  is  ^tticct  Incumbent  as 
before,  without  any  new  Inftitution.  VV'atf  Comp.  Inc.  8vo.  95.  cap.  6.  cites 
Fitzherb.  Abr.  2R.2.  Qiiare Impedit.  143.  27  H.  7.  Gard.  118.  Trin.  7 
Eliz.  Dyer,  f  240.  and  Mich.  33&;34Eliz,.  Gayton's  Cale.  Owea 
12.   Packman's  Cafe.   6  Co.  18. 

6.  If  the  u'ippeal  be  to  the  King  in  Chancery,  and  the  Deprivation  be 
affirmed  by  the  King's  Delegates,  or  if  the  Deprivation  be  immediately 
made  by  the  Lord  Chancellor,  or  Keeper,  for  that  the  Incumbent  is  vi- 
litable  immediately  by  the  King,  I  conceive  that  no  Jppeal  lies,  and  that 
the  only  Remedv,  that  the  Perion  deprived  hath,  is  to  get  a  Commijjion  of 
Revuw,  which  is  only  grantable  of  Grace  by  tlie  King,  and  not  ot' 
Right ;  nor  is  there  any  Remedy  at  Common  Law  if  the  Caule  of  the 
Deprivation  was  Ecclelialtical  ;  lor  there  the  Sentence  is  binding,  and  not 
thereby  examinable  ;  and  therefore,  if  a  Perfon  be  deprived  by  the  Au- 
thority aforefiid,  and  another  be  inllituted  to  his  Benerice,  tlie  new  In- 
cumbent's Title  Itands  gotxl  'till  it  be  reverfed  upon  the  Commiiiion  of 
Review  ;  for  this  was  laid  in  the  Cafe  of  a  Clerk  deprived  by  the  High 
Commillioners.  W'atf  Comp.  Inc.  8vo.  95.  cites  Trin.  4  J ac.  Bird  v. 
Smith.     Moor  781. 


menSm'     ^'  ^^     Prerogative  of  the  King  in  Matters  EccUfiajl'tcal 
Co.  E.  542.  i»r-|^j|)e  filing  lip  !)ii5  prcrogatiiic  Kopal  \xm  grant  Licence  to 

S.C    where         |_     an  JnCUmlKUt  to  hold  }JI$  QoCnCfiCe  in  C6mmendam  tUltl)  il 
Gaud/lnd^^ifljiJPnCii*     IX  39-  eU  Q3*K*  Armiger  atltl  Holland. 

Fennel-,  that 

the  King  had  this  Prerogative  by  the  Common  Law  ;   for  the  Benefice  is  made  void  by  the  King's  Aft, 

and  he  may  wsH  difpenfe  with  his  own  Aft. 

2.   9  (£♦  I.  EOt*  Claun  09*  4.  Dorr.     Rex  Epifcopo  Ciffr.  (fC» 

Cum  no0$i3roQ;cnitQrc0  noftri  ijoci^riuileffio  ufi  umius  a  Ccnipore 
quo  lion  crttU  C^emoria  quod  cierid  noitri  aD  orDU'kCS  ^ufctpjencoiBi 

\3Cl  aO  faCtCnO.  ftlpCr  fUIlS  'BmCfiCiiSi  perfonalem  Relidentiam  dum  no- 
Itris  immortantur  *  obfequiis  compelli  non  debeant  Mandamus  vobis  quod 
\W  Clericum  nollrum  &;c. 

_  3.  !)♦  8,  €*  3*  'B»,K*  EOt  23,  The  Archbiiliop  of  York  fummo- 
nitus  per  breve  de  Ven.  tac.  ad  relpondend.  Domino  Rcgi  proConfecratione 
Epif  Durham  elefted  a  Biihop  without   the  Alfent  of  the  Kings    tljC 

jDefennant  conies  ann  {ap0,  tijat  Ijc  is  a  Peer  of  tlje  Kcalm,  aim 
ougljt  not  to  be  conipeiro  to  anfiuccbj)  ^ttacijuicnt  anDDiffrcRs 

^C.  Co  tPljiCl)  It  I!3  anftueteO,  Quod  Contempt  us,  Excellus  &  Tranl^ 
greffio  praedicta  tangunt  Ui'urpationem  Juris  Regii  Contra  Coronam  pCt 

quoti  ^rapUictttm  lavctic  tie  JDeniretac.fiut  indent,  pet  ConcKunn 
Hcgt0,  quia  inBoDo  cafu  J^oiiumEcuiermun  cff  apponcnamn,  Dirjs 
Dntujs  ao  aunicnn*  ijimicuini, 

X.  The 


Preroizative  of  the  King".  255 


4.  The  Kings  of  England  from  Time  to  Time  in  every  Age  before 
the  Time  of  h'^'s.  have  ufed  to  grant  DifpeHjhtioiis  in  CatifcsEcckfiafiicah 
for  where  the  Law  of  the  Church  is,  that  every  Spiritual  Peribn  is  vi- 
litable  by  the  Ordinary,  King  William  the  Coirjueror  by  his  Charter  cs- 
mptcd  the  Abbot  of  B.ittcl  from  Vifitation  ami  Jimfdidion  of  the  Ordinary 
in  thofe  exprefs  Words  {Sitqiie  diifa  Ecckjui  libera  et  J^nieta  iuiperpetumn 
ab  oniiiiSnbjctitofie  Epifcoporiim  et  quariimhbet  Perfaianim  J)o7>ii/tatioiie,Ucuz 
Ecclefia  Chrilli  Cantuarenfis  &c.)  by  which  he  difpenied  with  the  Law 
of  the  Church  in  this  Cafe.  Dav.  Rep.  72.  b.  73.  a.  Pafch.  9  Jac.  C.  B. 
in  Ireland,  in  the  Cafe  of  Commenda. 

5.  The  King  may  difperife  with  a  Priejt  to  Hold  two  Benefices,  and  "with 
a  Bajiard  that  he  pall  be  a  Priejl,  notwichllanding^  the  Eccleliaftical 
Laws  which  are  to  the  contrarvi  and  as  he  may  difpenfe  with  thofe  Laws, 
lo  he  may  Pardon  all  Oftenccs  againlt  them.  Dav  Rep.  73.  a.  Palch.  9 
Tac.  C.  B.  in  Ireland,  in  the  Cafe  of  Commenda. 

6.  The  Eccielialtical  Court  cannot  proceed  to  piinip  a  Perfon  for  a 
Crime,  according  zo  the  Canons,  for  which  he  is  pardoned,  or  at  Com- 
mon Law  excufed.  Arg.  Skin.  500.  Trin.  6  W.  &  M.  B.  R.  in  the 
Cafe  oi  Philips  and  Bury. 


C. 

c. 


(L.  f  )     Prsrogatlve   of   the  King  in  Ecckjiajlkal  Courts, 
by  ffYits  of  the  King. 

I,  Tjf  Pariftioners  Of  ^  13.11111)  have  ufed  Time  out  of  Mind  to^elea 

1    two  Churchwardens  Annuallv,  and  to  prclent  them  to   the  Arch- 

de.-u^'on  to  be  Iworn,  auB  \)Z  Wi  "fCD  tO  flUCai"  tljClll,  nitt!  \\m_  UpOlt 

mcl3(!i:lcctiou  aun prefcntatiauto {)rai  to  be  l^'^un,  he  retuiech  to 
lue ir  them,  a  l^iHt  w^'^  be  tiiitctru  out  Of  03. K,  to  t!}£  ardjpeacoii 
comaraunmij  ijim  to  fuicac  tijciiu  03. 17  :iac.  03,  E.  ^ucij  !©at 
KranteD  far  tlie  Cljuccljuiarticti  of  Stnton-Vaicnce  \\x  Kent,    jroc  trjo 

a  Canon  IJC  made  i  [ac.  to  the  contrary,  it  CamiOt  tilUC  aioaj)  ttjC  (Lm= 

touu  '2b»  15  car.  15.  E.  end)  mnt  ijcantcn  foe  tijc  CJ)itrci> 
mmw^  of  tijc  liJartnjes  of  *  Ktheiborough  anu,  .^^  rz'o^?^  Apojiic  s  *  Ma.-.22 
m  Lonrion,  aftet  mutxic  potions  auB  upon  Dearuto;  of  Coiuifel  on  p'^  ^-^  |  ^ 
buti)  Cities.   B,  4  Car.  15.  K.  Ivot.  42°.  II  ^'•'^^''-  ant>  s:one,  iiKe  by  N.mc  ot 
l^rit  KrantcB.---ifortljeCijurcl3\uarl!cn0  of  ^Hoibetou  m  Devon, E^pn. 
Uhe  OBcit  ijranten.  c5%.sV{": 

II  Prohibition  (F)  pi,  ...  S.C.  —  ^  Mar.  66.  pi.  104.  Mich.  15  C.r  S.  C.  and  cites  the  Gifcs 
of  Sutton-Vakuce  in  Kent,  and  of  St.  Ethelborougli  in  Lordon.  -  f>.  P.  Kaym.  4V;.  P-'ich.   5;  C.u  2. 

C-TDcntcr-s  Ca'e. If  the  Pony  elecUd  offen  limfelf,  and  the  Ecdefyjtkal  Jnr.^e  refufes  to  tender  tie 

Oath  to  him.  a  .\larMv:m  from  the  Temporal  Court  will  be  granted,  .ind  ^Mll  not  be  revoked  upon  a 
Return  that'heis  vot  HM,s  Perfom  ;  becaufe  they  fay,  th.at  in  this  the  F.ccl ef, aft ical  Court  arc  not  to 
iud-e  of  the  Qu.ilifications  of  the  Perfon  any  more  than  <,f  an  Executor  or  an  Admmilh-ator  ;  but  the 
Panmioners  %Uio  chufe  him  are  the  moft  nropcr  Jud-cs  of  liis  1^  itnefs  tor  the  O.iice.  And  it  mult  be 
own-d  with  re-.u-d  to  the  Goods  of  the  Church,  tliat  the  Pannuoner.s  who  arc  to  repair  what  islolt  or 
fnoil-d  ou-ht  to  be  Tudges  in  what  H.mds  thev  flwH  be  lodged,  becauie  they  may  well  be  prelum  d  to 
chuCe  fuch'Kands  a.s  are  lafe.  But  with  regard  to  the  Duty  of  prelerving  Order,  and  pre  ennng  V  ice, 
the  Pre'-umption  docs  not  hold  fo  (Irong  that  the  Parifhioncr.s  wiU  always  chufe  fuch  as  fhall  be  zcL^us 
in  that  Work,  which  yet  is  a  very  coallderable  Branch  ot  the  OlScc  of  Churchwarden.  Gibf.  Cod  -4,_ 

2.  36  C.  3.  CDeKin?  commanded  theBiOiopOf  CiCOU  to  fend  Chrifiiie 

to  thePariihof  ©Jt.'BurieumCormuaU.  ,     .  ^^ 

3.  jf.  Jl5,  'i5.  63»    a  U0nt  dc  Cautione  admittenda  BttCCtCU   tO  tlje 

4.  iF»'ii5.  15.  2oo»  9  JBritbiVCCtCtl  to  the  Mayor  of  Q%m^  to  m- 
rol  a  Tellamcnt  and  to  prove  it. 

5.Jf 


Prefcription. 


5.  3!fit  Clerk  of"  a  Parifli  In  JLOnHon  fjtl0  fcCClt  uled  Time  out  of 
Mind  to  be  elected  by  the  Vcllry,  and  alter  admitted  and  fworn  beiore 
the  Archdeacon,  antl  he  refufes  tO  flDCiir  fUCl)  CicrU  fO  ClCftCD,  bUt  at)= 

mm  anotljcr  elcftcn  bv  tijc  parfon,  a  J©nt  map  be  c^mma  to  umt, 
^  coiunu'uiDins  to  fmcnrljim.  22  jac*  03*  R.  H'a/pooie's  Caie.  m\i\),  16 

,So'°S  C       ^'^'^^  '^»  i^'  bCtUlCCIl  *  Owicand  Pcmbcrto,,,  tOC  X\iZ  ClCCkOf  tijC  j^a^ 

till)  Of  €)t*  -/-b/tr'j  Lounoit  fact)  i©ttt  tjtantcD* 

For  more  of  Prerogative  in  General,  See  i^itl   Of  tIjC  IMm-,   CanOnSi, 
COUmiCnOam,  PtCfCntatlOn,  and  other  proper  Tfcies. 


# 


Prefcription. 


*  Pre'crip 
tioti  is  from 
Time 
wliereof  the 


Meriivint^"^)     t^^'^''-     ^"'^J    by^hatNamer    they   may    prefcribe, 
&c.  andth'^s  [  though    thev  hold  only  at  Will&c'l 

holds  if  there  i.  <j  j  j  •  j 

be  no  fperial 

wdlo'^'-  "^  A  hXl^i^'"^  f^^  prefcribe,  tljntlje  ann  an  ^rtjcant^ 

the  contiary.      ,     >C  *-  P"^  »lCO  f  C»  to   be  impleaded  only  by  Original.   1 1  €,  4» 

jenk.  26.  In  -*  ^*  tijoiiffi)  tljc^  atE  uot  a  Corporation, 

pi.  49.  — 

t   2'^'  °/^,^'^'  "•^"/f ,'!  ■?"■'""'"'  "'  ^■""■^'  ^'lo/'"''.  '7''!""  h'  came  to  the  Bar  to  fiend  and  mimjler  Mat- 
terror  hsChnjt,  a,^d  Bill  doe,  not  lit  ^gainfilim ;  and  after  he  fa,d,  that  he  is  Serjeant  at  La-x,  and  that 
A  A  A   ,V"'  "'  l-f-^J"^^'  ""«  "/  -\{">dhave  been  impleaded  by  llrit  original,  and  r.ot  by  8,11  ■  And 

demanded  Judgment   if  the  Court  ^vill    take   Conufance.    The  Plaintiff  demurred      Per  Brian    You 
cannot  prelcribc  .  for  you  are  not  incorporated.     But  it   wa.s  held,  that /....../ ,„..^  p,;f,ribe,  nvhoare  not 

,nccrporated,  as  Oigicer  oj  the  Court  fhall  prefcribe  in  Privilege  &c.  Br.  Prefcription,  pi.  72.  cIks  11 

tl^n!''?-!!"  ,,<;;,f°«"  A"°^"^y  "/ap  prefcribe,  tOat  ije  ann  all  attoritcpg  fc» 

cites  s.  C.-  y^^C  ""^^  ^^  h^^^  Privilege  f  C*  1 1  €,  4.  2*  -      ^  ♦ 

A  in  Tref-        3,  3  i^au  HtaP  ptefcnbe,  tljat  all  the  inhabitants  of  the  Parifli  IiaUe 

mmplire  "^"^^  ^^  ^^^^  f'J^I'^  Sacraments,  and  to   be  buried  in  the  Church-yard 

his  Grafs,  ?C,    i8e*4>  2,  b»  ^ 

the  Dejend- 

antfaid,  That  the  Place  &c.  is  &c.  and  that  the  City  of  Coventry  h  an  ancient  City  Time  out  of 
Mind,  iwA  all  the  Citizens  and  Inhabitants  oitht  fame  City    have  had   Common  in  the /aid  Pi  ice  for  all 
rheir  Beafts  Levant  and  Couchant  in  the  fame  City  Time  out  of  Mind /com /«,/.,  <r  Z)^y /„  A- j,  ^  £,„^ 
and  that  the  Dcjendant  ,s  an  Inhabitant  in  the  fame  Qty,  by  which  he  put  in  his  Beafts  as  in  his  Common* 
/nd  itwas   agreed,  that  the  JW^»;^G//>fw  cfC.  may  prefcribe  for  them  and  their  Inhabitants  Siic  and 

not  otherwlfe.  Br.  Prefcription  pi.  2S.  citet  I  5  E.  4.  29 S.  P.   Br.  Cuftoms,  pi.  40     cite.s  iS  E 

4-  ;.-—— So  Prefcription  may  be,  that  tne  Ufage  of  the  ViU  of  D.  has  been  Time  out  of' Mind' 
that  the  Inhabitants  &c.  have  had  *  M  ay  over  the  Landofthe  Plaintiff  to  the  Church  &c.  or  that  thev  have' 

been   c^uit  of  Tell  at  the  Mill  Sec.  Br.  Prefcription,  pi.  76.  cites  iSE.  4.  ;.  - J,  C  cit-d  D  -i  pi 

'r~7T~*j  ^I-   and  that  Inhabitants  may  prefcribe  i»  Eafement,  contra  in  Profit  Jpprendlr  out  of 'L'- 

Mher  s  Land  ;  Per  Pigot,  which  was   not  contradicted.      Br.  Prefcription,  pi.  28.  cites  i  5  E  4  29 

Inhabitants,  unlefs  they  are  incorporated,  cannot  prefcribe  to  hzve  Profit  in  the  Soil  of  another,  but  in  Matters 
of  Eafernent  only,  as  in  a  Way  to  a  Church  ;  So  in  Matters  of  Difchar^e  ;  As  to  be  difcharffed  of  Toil 
or   Tithes,  or  in  a  f  I*lodusdecimandi ;  But  not  in  Matters  of  Intereft.  Cro    [.is-    Hill  d  Tac    R    K 

Smith  V.  Gatcwood. 6  Rep.  59.  b.  S.  C. S  C.  cited  Arsj.  2  Lutw.  iiaS    in  Ca'c  of '  John  ' 

Ton  V  Wyard—— S.Cdted,  Buls.  y.C.  in  Cafe  of  Turner  v.  t)enning._!r-t  S  P  Q-o  /.M 
Mich.  ^,7  &;8Eli7,.C.B.  in  C.ife  of  Auftyev.  Fawkener.  ^  '      1 .  "-lo.  t.  446 

Brooke  makes  a  Qnsre,  if  Hmjhdders  may  prefcribe.     Br.  Prefcription,  pi.  98  cites  1 1  H.  6.  19. 

4.  a 


Prefcription.  257 


4»  a  99iin  mai;  allege  a  CUllOm  Q^iod  quUibet  Capitalis  ■Jufticiarl-  S.  P  Er. 
us  de  Banco  prO  tCUipore  CnffCllCl  ijaS  UfCU  Dare  quodlibet  OJficium  of  P'^''^'-'.?"°". 
the  Court  $f,   D*2,   3,   $^a.  114.  63,  2ohTI.^ 

S.  p.  Br.' 
Prefcription,  pi.  rr  cites  ii  E.  4.  2. 

5.  a  Sheriff  cannot  prcfcnfcc,  tljat  \)t  anti  all  tljofc  tuljo  ija^cBroffice 


bCCil  45)l)CrtlT0  I)a^je  bCnUClfCD   of  ;i   certain  Gilt  at   every  Tourn  hClD  "?'^^'*^>"''' 
-        .^  ,.,•..-  .        .  ..  -  -"*•      pl.  ;  I.  cites 

42  E  3  4. 
Br.  Pre- 
fcription, pi. 


ftcVj7jri)'{)ciM"iss  dyaic"bi)"tljc  ktnn;  mrp  l^car,  ano  iaiioWabif at  ^\  e'^^'T 
ti)e  tAmg'0  UBiiU  42  ec*  3»  5*  anjurssco*  ^i— Er.Pre- 


9   cites  40  E.  5,4.   [but  it  fhouM  be  42  E.  5,  4.  according  to  Br.  0£cj.j 
6»  But  33itie  in  21  ij),  7,  16,  ll,    ^n  Under-Sherift^  prCfCnbCD,  tljat  See  Fees 

fjcantsali  ttuiicr='^ljcnfr0  of  tijc  County  ijaVic  ufcb  to  Ijaiic  lo  niuch^,^)^'  ' '" 

lor  Bair  Fees,  anB  aOnUttCO  poo*         ^  B.!!  Fecs?pl- 

6.  cites  S.  G. 
Br.  Prefcription,  pi.  37.  cites  S.  C 

7.  Scire  facias  to  repeal  Letters  Pttents  of  the  King  of  an  Office  in  Ire-  *  On^.  is 
laud  agaiujl  J.  N.hecatife  the  Plaintiff' has  other  Letters  Patents  of  it  ^^  (Poef  lie"-) 
elder  JJate^  &c.  the   Dcjendant  faid^  'That  the  Land  of   Ireland  is,  and  Pi^eftHKion 
Timeout  of  ALnd^  has  been  a  Land  fevered jrcm  the  Realm  of  England,  (?^;(^  pi.  72. cites  * 
ruled  and  governed  by  the  Cujloms  and  Laivs  there,  and  that  the  Lords  there  1 '  E  4.  2. 
of  the  King's  Council  have  ufed  in  the  Abfence  of  the  King  to  chafe  a  Jtifiice,  H  ^-  ^-  ""'^^'* 
laho  has  Pozver  to  pardon  and  pnnijh  all  Fehnies  and  Trefpafes,  and  to  al-  ^^ifw  when 
femtle  a  Parlianunt  by  Advice  of  the  Lords   and  Commonalty,  and  make  they  void  ; 
Statutes,  and  alleged  hov/  a  Parliament  was  fummoned,  by  "uohich  it  was  en-  Quod  Nota  ; 
aded,  that  tkofe  ivho  have  Offices  there  fball  'he  njident  upon  it  by  a  Day  See.  ^^"^^  '"^  '^''-'^ 
or  otherz:vife  /l:all  forfeit  his  Olfice,  and  that   the  riaintiffizuas  Officer  Sicll^^^^'c^H 
and  did  not  come  by  the  Day,  by  which  the   Office  zvas  vuid,  and  the  King  tion  or  pi-J, 
granted  to  the  Defendant    &c.     The  other  demurred    upon   the    PJea  •  fcntation  to 
and  by  fome  the   Prefcription  is  contrary   to   Reafon,  and  *  may  bind  ^'^^'^''-''^^'''^ 
the  King,  and  therefore  ill  ;  But  per  Fortcfcue,  tlie  Prefcription  is  void,  l'".*^„,^^„'^' 
and  is  in  the  King,  and  not  in  thole  of  Ireland  ;  as  t  Chancellor  of  Eng-  Br.'  Pre"' 
land  who  is  only  at  Will  prefcribes  to  have  Prefentation  to  allBen'e/]cesof'^^^''i'?^''^m-),  ol. 
the  King  \\  under  a  certain  Sum,  and  that  Statutes  of  England,  as  of  roths,''''-  '^"^  '^^ 
ijths  &c.   do  not  bind  Ireland,  becaufe  it  is  fevered,  and  does  not  come    ^^'  '' 

to  Parliament ;  therefore  ^lure  Legem.    Br.  Prefcription,  pi.   4.  cites 
20  H.6.  8. 

8.  In  Debt  it  was  awarded,  that  the  Sexton  of  an  Abbey  cannot  pre- 
fcribe  that  he  and  his  Predeceiibrs,  Sextons  of  the  Abbey  of  B.  have  been 
Parfons  of  St.  A.  in  B.  and  have  impleaded  and  been  impleaded  Time  out 
of  Mind  ;  For  Sexton  cannot  prefcribei  and  grant  to  him  by  the  Kino- 
iliall  not  ferve  to  his  Succelfor ;  for  he  has  no  Succtffion,  quaere  of  hiin- 
felfi  For  it  feenis  that  he  is  a  Monk,  and  therefore  a  dead  Pcrfon  in 
Lavy.     Br.  Prefcription,  pi.  99.  cites  32  H.  6.  31. 

9.  Prior  dative  and  removeable  prefcribed  to  implead  and  to  be  impleaded 
and   to  anfwer,  and   to  be  anlweied  Time  out  of  Mind,  and   a  good 
Prefcription.     Br.  Preicription,  pi.    94.  cites  2  E.  4.  17.  and   44  £.  3 
4.  accordingly. 

10.  My  very  Tenant  may  prefcribe  in  his  ozvn  Right  ;  per  Choke  ^  Br.  ^r<v  fi  nnv 
Prefcription,  pi.  28.  cites  15  E.  4.  29.  7c,:.wtfc/ 

ChoI.e  ;  Quod  fait  CoiiceflTum.  Ibid. But  Tenants  at  V\'ill  cannot  prefcribe  in  their  own  Ri'^ht^  hnr 

1.,  Right  of  their  Lord;  Per  Cur.  Br.  Prefcription,  pi.  -6  cites-  ,8  K.  4  5_!Ls  P 7"  ClSe'  iir 
^"'h^rjl'  ^vf-  "'?r  •/•  4-  ^9— —They  cannot  prclLribc  in  a  ^hinp^-Auh  fiaUerd.rl  }or  c^er 
ice.  but  in  the  Llage  and  Cuftom  of  thcV  ill  they  may  ;  and  lo  note  the  Diverfirv    br   Prefcri-tion    pi 

76.  cites  18  E.  4.  3 7e„.wtior  Lije  camwt  preicrlbc,  nor  a  Man  canr.ot  vreicribc    nffmfp.   7'ekuft 

Jcr  Uje,  and  ttiec*  thete  it  m  Succf£:on  mr  rerpetiiily  there  can  he  no  Prcfcri.)U,)ii.     Br  Prc/cript^on    j  I 


cites 


Ttt  h.Ij, 


2^8  Prefcription. 


Cio.E.  15;.  II.  In  Cafe  lor  dilliirbin^  the  Plaintift'  in  ullng  his  Common  Plain- 
Honeywood  jj/f  f^c  forth,  that  A.  was  leiled  of  certain  Lands  to  which  Common 
S  c'^re^om  W'*^  appendant  for  Life,  Remainder  in  Tail  to  B.  and  that  they  demiled 
That  Gaw-''  the  Lands  to  the  Plaintilf  lor  Years  ;  It  was  objected  againft  this  Decla- 
dy  held  it  to  ration,  that  Lcffie  for  Lije,  and  he  \n  Rcmainda  cannot  prcfcribe  togetherj 
be  good;  and  cited  20  E.  4.  10.  But  per  Popham  and  Gawdy,  it  is  well  enough  ; 
^"^.^''-■'■j,^^  For  all  is  but  one  Eftate.  i  Leon.  177.  Palch.  31  El.  J3.R.  Hauxwood 
Plaintiff  V.  Husbands, 
ought  to 
have  made  a  diftinft  Title  to  the  Common,  and  not  confounded  them  as  he  has  done.     Et  adjomatur. 

12.  A  Copyholder  prefcribed,  that  every  Copyholder  offiich  a  Par- 
cel of  Wood  had  tifcd  to  cut  down  Trees  there  growing  ;  and  held  goodi 
and  a  Difference  was  taken  between  a  Prefcription  tor  Freehold  and  for 
Copyhold  Land  ;  for  Ciijlom  which  concerns  Freehold  ought  to  be 
throughout  the  County,  and  cannot  be  in  a  particular  Place;  But  a 
Prei'cription  concerning  Copyhold  Land  is  good  in  a  particular  Place  i 
for  De  Minimis  non  curat  Lex,  and  the  Law  is  not  altered  thereby, 
and  it  may  be  there  is  but  one  Copyholder  there  for  which  he  might  pre- 
fcribe.  And  Cultom  to  have  Projit  Apprcuder^  Privilege  or  Difcbarge^ 
may  well  be  in  a  Particular.  Cro.  E.  353.  Mich.  36  &  37  Eliz.  C.  B.  Ta- 
verner  v.  Ld.  Cromwell. 
it  is  true,  1 3.  The  Inhabitants  of  Egham,  and  all  the  Tuwus  in  S/mj,  joined  in  a 

That  Te-  Claim  to  cut  down  all  the  Coppices  at  their  Pkafure,  and  to  have  Common 
nants  in  An-  f^j.  ^jj  Cattle  Commonable,  and  Common  of  Turbary,  and  made  Title 
majjoln  ina  by  Prefoription,  Noy,,  the  Attorney  General  faid.  That  they  ought 
Claim  for  a  not  to  have  joined  in  One  Claim.  Jo.  275,  276.  8  Car.  in  Itin.  Windfor, 
Common  The  Inhabitants  of  Egham's  Cafe. 
&c.  becaufc 

King  cannot  claim  for  them  ;  But  [ss  to]  other  Men,  if  [they  are]  Copyholders,  they  only  muft  join 
that  are  Tenants  to  one  Lord,  and  the  Lord  muft  prefcribe  for  him  and  his  Tenants;  But  the  Lord 
of  a  Manor  cannot  prefcribe  for  any  of  his  Freeholders,  but  every  of  them  muft  put  in  feveral  Claims  ; 
For  theReafon  why  the  Lord  may  prefcribe  for  his  Copyholders,  is,  becaufe  the  Freehold  of  the  Land 
is  in  Law  in  him.  Jo  z-6.  in  the  S  C. 

14.  Prefcription  for  a  Thing  Appurtenant  to  a  Manor  (as  Liberty  of 
Foldage  of  the  Tenant's  Sheep)  was  laid  in  a  Body  Aggregate  by  a 
^le  KJiate^  and  was  held  to  be  well  enough.  2  Vent.   139.  Hill,  i  W. 

&  M.  C.  B.  Dickman  v.  Allen cites  Keilw.  140  b.  Co.  Litt.    121.  a. 

Cro.  J.  673. 

15.  In  Trefpafsof  breaking  his  Clofe  called  Jenning's  Key,  the  De- 
fendant prefcribed,  that  Omnes  ligei  Domini  Regis^  Time  out  of  Mind  &c, 
ufed  to  land  Goods  of  too  great  Burden  in  the  Lands  adjoining  i  The 
Plaintiff  had  VerdiQ: ;  But  upon  Exception  in  Arreft  of  judgment,  the 
Court  held  the  Prefcription  good  enough,  and  a  Nil  Capital  was  avrard- 
•d.  3  Keb.  179.  Trin.  25  Car.  2  B.  R.  Jennings  v.  denial. 


(A.  2)  Againft  whom. 

1.    f~jnli  E  Lord  cannot  prefcribe  againjl  his  Villeins^  nor  his  7'enant  at 

I      JFill.  Br.  Cultoms.  pi.  52.  cites  13.  E.  3. 

2.  A  Man  prefcribed   i n  the  Bilhop  of  C.  and  his  Predeceflbrs,  that 

they  had  prefented  to  fuch  a  Priory,  as  Patrons,   Time  out  of  Mind ; 

Skipe  faid  he  cannot  prefcribe  againft  the  King  j  But  Kirk  faid   that  he 

may  as  iccll  againjl  the  King  as  another  Perfon ;  For  other-wife  the  Lords 

fsall  lofe  their  Franchife  in  ^uo  IVarraiito.    Br.  Prefcription  pi.  52.   cites 

38.  Air.  22. 

3.  Debt 


Prefcription.  259 


3.  Debt  of  3  1.  tor  Found  Breach,  becaufc  the  Cuftoiiiof  his  Manor  oi' 
C.  is  that  tkc  Lord  for  the  'time  bei/ig  has  had  3  /.  for  Pound  Breach  Time 
out  ot  Mind,  and  that  the  Defendant  was  Diltrained,  and  lliened  by 
whom,  and  for  what  Caufe,  and  he  broke  the  Pound,  tor  which  he 
brought  his  A6lion  ;  and  by  all  the  Jufticcs  the  Cullom/j-  not  ^ood  to  bind 
aStrafiger-,  For  it  cannot  have  Lawiul  Commencement,  But  fuch  Cul- 
tom  upon  the  Tenants  of  the  Manor  may  be  good;  For  it  may  be  that  it 
was  relerved  upon  their  Tenures  in  Principio.  Br.  Prefcription  pi.  106. 
cites  n  H.  7.  13,  14. 

4.  As  where  the  Tenants  grant  to  the  Lord^  that  ivhen  their  Rents  are 
jirrear^  they  pall  render  20  s.  Ibid. 

5.  In  Replevin,    the  Defendant  avowed   for  Damage-feafant ;  The  •5^" '"  an  Ac- 
Plaintiff  jultities,  For  that  he  had  a  Clofc  adjoining  to  the  Defendant's  ".°':  "".'''^ 
Clofe,  And  that  the  Deiendant,  and  all  the  Occupiers  of  the  (iiid  Clofe,  pi^it'tirt- fee 
Time  out  of  Mind,  had  n;'cd  to  repair  the  Fences  bcfxeen   the  faul  Clofes^  forth,  iiat 
and  for  not  fufficient  incloling  his  Bealts  entered  &c.   Iflue  was  taken  lehadUen  5 
upon  the  Prefcription,  and  ibund  for  the  Avowant;    It  was  moved   \xi''^-'fi"fl 
Arrelt  of  Judgment,  that  the  Preicription,  That  ez^ery  Occupier  &c.    is  {^/^  q"  ju^.^fa 
too  general,  tor  Tenant  at  Will,  I'enant  at  Sullerance,  or  a  Diffeifor  Pafture,  ^ikW 
are  Occupiers,  and  for  this  Reafon  it  was  held,  That  the  Prefcription  ''•':'  L'efai- 
ofwas  not  good,  though  being  after  a  Verdicl,  it  is  aided  by  the  Statute.  ^'"^'  occuped 
Jeofails.  Cro.  F.  445.  Mich.  37  <S:  38  El.  C.  B.  Auftye  v.  Fawkener.        'ccf^'tl^d 

ti  .^.t  Omnes 
alii  Occuf.itores  of  the  Dejendavt's  Chfe  did  nfe  to  put  the  Gates  ;  This  was  found  for  the  Plaintiff,  and  ic 
was  moved  in  Arreil  of  Judgment,  That  Omnes  Occupatores  is  not  i;ood  ;  But  it  was  adjudged,  that 
notwithftaniling  this  Exception,  without  alledging  any  [thing  more]  than  that  all  the  Occupiers  had 
ufed  to  do  it,  it  was  good.  Cited  by  Bridgman  Ch.  J.  Cart.  52.  Mich.  i".  Car.  2.  C.  B.  as  the  Cafe  of 
(2)Untir  i),  f^orf,  and  that  it  was  by  the  Advice  of  all  tlie  Judges. 


{^)    Of  iihdt  Thh?g  it  may  be.    [And   what   ihall    be 
faid  a  good  Prefcription.] 

^an  mav  prcfCribC  to  be  Tenant   in  Common  Ull'tl)  aitOtiJCC  R'- P'-c^-'ip- 
ot  Land.  8.  H.  6.  16.  b.  "!^t^- 

cues  o.  \^. 
At  if  one  and  his  Anceftocs,  or  thofe  whofe  Eftatc  he  has  in  a  Moiety  have  held  the  fame   ui   corn- 
nion  with  the  other  Tenant  or  his  Ancertors,   or  with   thofe  whofe  Eltate   he  has   Pro-Indivi'b    Time 
out  of  Mind  &c.    But  y,'/?!«  7?«rt^•a  cannot  be  by  Prefcription  ;  Bec.Aufc  there   is  Surv^ivor   b.;i\veen 
them,  which  there  is  not  between  Tenants  in  Common.  Co.  Litt.  S.  510.  195.  b. 


-A 


le 
laild 


2*  X^ut  a  C^an  cannot  make  Title  to  Land  by  [cJccTcviption.  OSrooIi  ^^f^f'^'^.^^ 
pitfcnptiau*  *  122,  lo';;^,  l,,.,, 

itfelf  [as]  that  he  and  his  Anceftors,  or  thofe  whofe  Eftatc  &c.  have  been  fcifed  Time  out  of  Miud  £ic. 

Br.  Preicription.  pi.  19  cites  S  H.  6.  t6.  and  cites  Tit.  Trcfpafs.  pi   122 [*  1  here  arc  not  '"  many 

Pleas  in  Prefcription,  but  it  feeras  it  fhould  be  (pi.  19)  and  that  the  (122)  is  a  Miftakc  occaUoned  bythe 
Plea  out  of  (Trefpafs  1 22)  which  Brooke  cites. 

3.  It  feems,  That  a  Dean  and  Chapter  mayprefcribe  to  make  Tndnfrioft 
and  hjlallatton,  as  to  them  belonging.  Time  out  ot  Mind.  Vide  9  H  4. 
9.  a.  b.  The  Bilhop  of  Coventry  and  Litchfield  v.  Wellwood. 

4.  Matter  of  an  Hofpital  preYcribed  in  Writ  o{  Jnniiity  of  the  Seifin  oj  "^^  ^^^^^f'^ 
the  Jmiaityagainjl  a  Parfon  and  his  PredeceJJbrs,  Time  out  ot  Mind,  and' 

good,  and  lb  charged  the  Parfon,  and  no  Land  but  the  Church.  iMota.  Br. 
Prefcription,  pi.  21.  cites  19.  H.  6.  39. 

5.  Where  Retjt  is  granted  by  Fine  or  Patent  of  the  King  before  the 
Time  of  Memory,  the  Party  may  Cw^;/?  by  Prefcription.  Per  Newton.  Br. 
Prefcription,   pi.  22.  cites  19  H.  6.  75. 

6.  It  is  a  good  Cultom  to  Prefcribe  That  -jnhere  a  S'-joan  comes  upon  the    ^^^-^^^^^  ^^ 
Land  cf  any  adjoining  to  the  River  Thames,  and  makes  a  Nefi  there^    ^''^  VxMcUantcof 
has  three  Cygnets^  that  the  Owner  of  the  iwanjhall  have  two  ofthelejl,  and  Swar.sKitUn 

the 


26o  Prefcription. 


h,s  .l/rtKcr,  the  Oifiicr  rf  the  Land  the  third  ;  For  otherwife  the  Owner  of  the  Land 
as  well  a- TO  j^^^,  Chace  them  i  quod  nota;  and  here  in  a  Particular  County.  Br.  Prc- 
vviufen'''''  Icriptiunpl.  loo.  cites  2.  R.  3.  ij- 

Tiin  ^i^EViT..  The  Cafe  of  Swans. Jnd  he  that  has  fiich  Game  of  Swans,  mav  prercvibe,  that  his  Sw.tns 

Ih.iU  'l\iim  '■j.-ithin  tie  M.nwrof  another.  Ibid.  i6.  b.  I :.  a.—  And  in  th;'t  Cafe  u  Prcfcnption  being  laid  tor 
Wild  Swan;,  unmarked,  Midificantes  &c.  it  was  refolved  that  if  the  Defendants  had  .jlledgcd,  Tiiat  v,  itii- 
in  the  (aid  Creek  there  had  been  Time  out  of  Mi'.'d  a  Game  of  wild  Sii^a/u  un>r.-.vksd,  Kidificantes  &> 
Gizreritcs,  and  then  frefcribed  that  fuch  Jihot  and  ail  his  Predecejjhs  &r.  had i<Jed,  Time  out  of  Mind,  to 
hate  and  take  to  Iheir  (  je /owe  of  tkefaid  Game  of  wiM  Swans  and  their  Cy,?,7.ets  i:.tthin  the  faid  Creek,  this 
h:id  been  pord  ;  For  though  the  (ignets  arc  Royal  Volatiles,  yet  in  fuch  a  Manner  a  Man  may  pix- 
fcribe  inti.cm;  Becuifethis  mav  hav'e  a  lawful  Commencement  by  Giuntof  the  King,  andconlcquentljr 
a  Man  mav  prcicribe  in  them  within  a  certain  Pla.e,  fmce  it  may  have  a  hwful  Commencement.  Ibid 
iS.  a.  b 

^".inaVin^)-      -7.  It  is  a  good  Prefcription /o  ^^"j^  a  Halfpenny  of  rcery   one  ivho  goes 

'^'''■''■"'r"?J''ovcr  his  Loindi  For  this  is  Toil  fraverfe.  Br.  Prefcription.  pi.  57.  cites 
For  thii  is  ,  , 

(luidproquo.  5  ■'I-  7-  "• 

Br.  Cuftoms.  7.  It  h  a  good  Prefcription,  T^hat  if  the  Tenants  of  the  M.vior  do  not 
pl.  ;o.  cites  p^y  jf.-,!,^..  ^^./J}  ij  Qfjg  Year^  nor  any  Dtjtrefs  can  be  found  there  by  one  Tear, 
^\  ^-(Z  '5  jf.^j  jIj^  i„^  j.^ay  re-enter^  and  this  is  good  for  the  Generalicy  ;  For  tho' 
'^"   '    '        feme  do  not  pay,  by  which  the  Lord  enters,  yet  it  may  be,  that  there  are 

others  who  pay  well.  Br.  Prefcription  pl.  36.  cites  21.  H.  7.  15. 
Jnd  Kirgf-  9.  Prefcription  by  a  Lord  of  a  iM. mor  was  to  have  after  the  Death  of  every 
mill  J.  _  Ten"nt  for  Lite  or  Tears,  or  at  the  Will  of  the  Lord,  for  every  Tenure  held 
thought  this  ^^^  ^^^^  Tenant  at  the  Time  of  his  Death,  his  bell  Beart,  ;«  the  Name  of 
rot  Hke  the  a  Hcriot,  and  to  feife  the  fame.  Kingfmill  and  Vavalor  J.  thought  this 
Ca'cof!4     not  a  good  Prelcription.     But  Frowike  Ch.  J.  Contra.     Kcilw.  79.  b. 

dc  Glou-efter  Fee;  for  there  the  Lord  of  the  Honour  fl\all  have  Relief,  Heriot,  and  other  ca^iwl  Profits 
for  cverv  Aiienatio",  an.i  there  Ui:ity  of  Pojf'ffion  in  the  Lord  fliall  rot  hurt  the  Cuftom,  becau'e  the 
CuOor^i  runs  in  a  Generality.,  that  is,  throughout  the  whole  Honour  ;  and  where  the  Cultom  runs  ia 
inch  Generaiitv  thrcu^kout  all  and  ezery  Part  of  a  Place,  as  Gavelkind,  Borough  Emrlif:,  and  the  like. 
In  tho'e  Cafes,'  Unicy'of  PoUelTion  is  not  material  ,  but  in  the  Cafe  above,  tlie  Cuftom  cannot  run  in 
fuch  Generality  ,  and  for  this  Reafon  the  Prefcription  is  not  good.  And  alfo  becaufe  every  *  Prefcrip- 
tion ou-'ht  to  depend  en  a  Thing  which  mav  have  perpetual  Continuai7ce,  whereas  between  Leilor  and 
Leffec  for  Term  of  Life,  or  Years,  or  at  \M11,  the  Leil'ces  have  only  an  Eftate  determinable  within  a 
Time  certain.  Keilw.  80  21.  H  T.Talbot's  Cafe.— £»?  Frowike  Ch.  J.  held  this  a  good  Prelcripcion,  and 
f'.iltinruilTi'd  between  one  finable  Leafe  of  one  Jlnfyle  Part  and  feveral  of  fevcral  Parts  ;  that  tho'  111  the  firft 
Cafe  "on  the  Determination  of  fuch  fmgle  Leafe,  an  Interruption  would  be  of  fuch  Prefcription,  be- 
caufe it  referr'd  only  to  that  particular  Parcel,  but  here,  notwithftanding  fuch  Dttcrmination,  there 
are  otlicr  Lands  in  Leaf',  upon  which  the  Cuftom  may  depend  and  take  Place,  it  eKtending  throughout 
the  whole  Manor,  and  fo  makes  it  fquare  with  the  Cale  of  GloucefterFee  cited  by  Kmglmi!  J.  Keilw. 

S  Talbot's  Cafe.— Br.  Prefcription.  pl.  56.  cites  21  H.  7.  15.  S.  C—  Br  Cuftoms  pl.  -,o.  cues  S.  C. 

*It  is  an  infillible  Rule,  that  if  a  Man  has  a  Thing  of  Common  Right,  and  by  Prelcnption,  he  has 
Eftate  in  Fee  Simple  in  the  fame  Thing.     Day.  9.  b.       ^  ,  .     ,     .,  „    ,  ,   „  ,    ^ 

In  Replevin,  the  Defendant  avow 'd,  that  J. S.  held  of  him  by  Homage,  healty  and  Rent,  and  4t 
c-cery  Jlienation  of  his  'Tenant  that  he  and  his  Anceftors  have  ufed  to  have  the  hefl  Beajf,  if  the  Jlienee 
does  not  P-i-e  'Police  to  the  Lord  in  the  Life  of  the  Jltenor  ;  and  that  his  Tenant  alicn'd  to  the  Plamtift  and 
died  and  the  Plaintiff'  did  not  give  any  Notice  in  the  Life  of  the  other.  And  the  belt  Opinion  was, 
that  this  is  a  good  Prefcription  ;  for  it  may  have  lawful  Commencement,  as  by  Condition  or  Rcfcrva- 
tionat  the  Making  of  the  Tenure.     Br.  Prefcription.  pl.  58.   cites  S  H.  7.  10. 

SecCY)pl.27.       10.  Prefcription  to  dijfraifi  in  bis  own  Land  is  good.    Br.  Prefcription, 

S.C.at  large.   pl_  ^     ^ites    26  H.   8.    5. 

MvLordCh.  II.  Where  a  Man  prefcribes  to  £0  quit  of  Tithes  for  his  Lands  in  D. 
J.  Hobart  where  all  Others  of  D.  pay  Tithes,  this  is  void;  tor  Cu/foni  cannot  he 
!he"cafc  of"  Particular,  but  ought  to  be  throughout  a  Country  or  Vill,  Br.  Prefcrip- 
Prefcriiuion,  tion.  pl.  93.  cites  Doct.  &  Stud.   lib.  2.   cap.  55. 

Tithes  differ  ... 

from  all  other  Cafes  in  Law;  For  whereas  Prefcription  and  Antiiuity  of  Time  fortifiesall  otheiTitles 
and  fuppofes  the  bcft  Beginning  that  Law  can  give  them,  yet  in  Cafe  of  Tiihes  it  is  clear  contrary  ; 
for  tho"  the  Grant  of  a  Parfon,  Patron,  and  CJrdinary,  h  good  in  it!clf  without  any  Recompencc  or 
Confideration,  yet  wlicn  it  runs  to  Prefcription  it  dies  and  perifhes ,  whereot  no  other  Reafon  is  given 
but  that  our  Book*  fav,  that  a  Man  may  prefcribe  //;  mjdo  Decimandi,  bui  not  in\v.»  Deamando,  and  thisii 
In  favc-rem  Eiciefti,  left  Laymen  fliould  fpoil  the  Church.  But  he  gives  another  Reason,  That  the  Law 
violently  prcfumcs  that  a  Lawman  cannot  be  difchai-gcd  abfoIuteU,  and  !o  wiil  not  aliow  the  Prefcrip- 

iiyy, 


Prefcription.  261 


fion,  but  ^vill  prefer  the  Good  of  Relij^ioti  and  the  Cliurch  to  the  Benefit  of  a  private  finglc  Perfon. 
Hob.  297.  Mich.  i)Jac.  in  the  Cafe  ot  Slade  v.  Drake. 

12.  A  Man  can't  prefcribe  in  'things  which  touch  the  Croijot.     Br.  Lcct. 
Stat.  Limit.  39. 

13.  In  Trefpafs  of  taking  his  Goods,  the  Defendant  fet  forth,  That  Eendl.  2r._ 
the  City  of  York  was  an  ancient  City,  and  that  there  ivere  Afayor,  Bail-  l^^u'^''^^"^' 
jjjf's^  and  Citizens  in  the  City  Time  out  of  Mmd  till  i  R.  2.  ivko  then  incor-  ^.,  (puf^oji 
forated  them  to  be  ALijor,  Sheri/f's,  and  Citizens ;   and  that   Time  out   'j/ li  *'l)ittma* 
Mind  thtre  had  been  a  Ciijlom  to  fctfe  Wares  foreign  bought  and  foreign  fold  fo'i  ;.  tlie 
•within  the  Liberty  of  the  City  of  Tork^  as  forfeited  ;  and  becaule  the   liiid  ^'es'^^p 
Goods  were  Wares  foreign  bought  and  foreign  fold,  he,  as  Servant  to  more'D.i-^. 
the  Mayor  &c.  jullified  the  Taking.     And  this  Manner  of  Prefcription  b.  I\I;irg  pi.9. 
was  travers'd  and  aliow'd.     D.  279.  b.  pi.  10.  cites  it  as  a  Precedent.      [but  it  ismif- 

plac'd,  and 
fliould  be  pi.  10.]  fay.s,  that  Mr.  Glanvill  in  liis  Reading,  Feb.    5  Car.  friid,  That  he  doubted  of  this 
Cafe  ;  for  he  he'd,  that  the  Prefcription  i>  ill,  and  fays,  that  he  had  fc;irch'd  for  the  Rule  of  this  Cafe 
among  the  Records  but  could  not  find  any  futh  ;  and  he  grounded  his  Reafon  upon  the  Statute  of  9  E. 

^.  cap.  1 .  for  it  is  exprefly  contrary  to  this  Cafe. [That  Statute  does  not  concern  the  Manner  of  the 

Prefcription,  but  only  prevents  fucli  Forfeitures.] 

14.  A  Body  Politick  or  Incorporate  may  commence  and  beeftabliHicd 
by  Prefcription.     Co.  Litt.  250.  a.  S.  413. 

15.  In  A£lion  upon  the  Cafe  the  Plaintiif  claim'd  fuch  a  Cullom  in  Le.  142, 145.' 
the  Town  of  T.   that  he  and  his  Anceitors   had  a   Bakehotife  within  the  Ji''"n' r 
Town  to  bake  White  and  Houlliold  Bread,  and  that  he  had  ferved  all  the  j,  \^'   q^^  ' 
Town  with  Bread,  and  that  no  other  could  ufe  the  Trade  without  his  Li-  it  does  not 
cence,  and  that  the  Detendant  had  ufcd  the  Trade  without  his  Licence  ;  appear  there, 
upon  which  tiie  Defendant  demurr'd.     And  after  Argument  it  was  ad-  'j^^"^  ^"y 
judg'd,  that  the  Adion  will  not  lie.     Ow.  67.   Hill.  32  Eliz.  B.R.  Sir  i"^^^Tve"n._- 
George  Farmer  v.  Brook.  but  £ro.  E. 

205.  Mich. 
•3,1  &  3;  Eli7..  B.  R.  S  C.  fays,  that  it  was  adjudj^'d  for  the  PlaintifF;  for  the  Cuftom  !■;  between  the 
Lord  and  his  Tenants,  which  by  Indenture  m  ly  have  a  good  and  lawful  Beginning,  and  peradventure 
their  Lands  were  given  to  them  upon  this  Condition  ;  and  it  is  realbiiable  th.it  the  Lord  m.iintaining  a 
Bakehoufe,  that  for  this  Caufe  they  fhould  have  reafonable  Recompence,  and  the  Plaintift  had  Judg- 
ment —  S.  C,  cited  8  Rep.  125  b.  Hill.  7  Jac.  in  the  (litP  Of  5fLonDon'0  Cafe  ,  and  fays,  it  was  adjudg'd 
a  reafonable  Cuftom  by  Sir  Chriftopher  Wray  &  tot.  Cur.  and  yet  this  Cullom  relhains  a  Man  to  ufe 
his  Trade  vfithin  a  certain  Place. 

■,  16.  In  Trefpafs  for  entring  and  cutting  down  the  Plaintiff's  Wood, 
the  Defendants  allcdge  a  Prefcription  &c.  to  take  the  Underwood  grow- 
ing on  the  Lands  of  the  Plaintiff  adjoining  to  their  Land^  to  jnake  the  Hedges 
of  that  Land  on  which  the  Wood  did  grow.  It  was  argued,  that  this  Pre- 
fcription is  not  good  j  becaufe  it  founds  in  Charge,  and  is  not  tor  the 
Benefit  of  him  who  prefcribes ;  For  if  the  Defendants  did  not  repair 
the  VVood,  they  would  receive  no  Damage.  Sed  Adjournatur.  i  Leon. 
313.  Mich.    32  Eliz.  B  R.  Leigh  v.Okeley, 

17.  One  cannot  have  a  Court  by  Prefcription,  unlefs  where  he  cannot  have 
it  ctherwife.  Per  Walmfley  J.  Cro.  E.  792.  Mich.  42  &  43  Eliz.  C.B. 
in  the  Cafe  of  Pill  v.  Towers. 

18.  In  Reple\  in  Sec.  the  Iffue  was  upon  a  Prefcription  for  every  Yard-  If  in  Rcple- 
Land  within  fuch  a  Vill  to  have  Ccnnnonfor  12  CowSj  and  for  a  Qiiar-  vin  fomuch 
ter  of  a  Yard-land  Common  for  3,  and  for  Half  a  Quarter  for  a  Cow  '^^ f^^.  ^'j^" 
and  an  Half,  and  a  Verdi<St  for  the  Plaintiff'     It  was  objected,  that  a  found°as  ^ 
Man  could  not  prefcribe  to  have  Common  for  a  Cow  and  an  Half;    but  Jtrves  the 
adjudg'd,  that  this  being  on  a  Verdi£l  it  fhall  be  intended  fo  as    it  can  Turn  of  the 
be   (i.  e.)    Common  for  Half  a  Year,   or  that  two  Men  had  but  one  ^'l*^^-'  *'^"' 
Cow,  and  fo  each  of  them  had  Half  a  Cow.  Sid.  226.  Mich.  6  Car.  2.  }^^^„^\  "^^ij 
B.  Fw.  Ellard  v.  Hill.  fufficient. 

And  here  tiie 
Eeplevin  was  brought  for  one  Cow  only,  and  the  PlaintifF  pleading  a  Prefcription  for  four  Cows 
and  .>n  Half  is  a  good  Jnitification   for   putting  in  of  one  Cow.      Per  V\  indham  .\rd  Twilden  CsEteri.s 

Abfentibus,  and  they  gave  Judgment  for  the  Plaintiff-".     Lev.  141.  Hill  v,  Ellard  It  was  urg'd  in 

U  u  u  Arrcll 


262  Prefcription. 


Ari-cft  oT7u,lsrnK-nr,  thut  ir  Ok  uld  b^vc  been  faTd,  For  the  Half-Feeding  of  a  Cow  ;  but  the  C.id  Jua 
ticcs  held  that  the  Avowry  being  but  for  one  Cow,  it  was  fufficient,  whether  it  was  good  lor  the  Halt 
Cow  or  not.    Keb.  793   S.'C.  by  Name  of  Hill  v.  Allen. 

They  mud        19-  Prefcnptions  muft  have  a  la-^ftil  Bediming.     Vent.  387.   Potter 

have'a  rea-     V.  North. 

Caulc^cf  Commencement.     Dav.  9.  h. Every  Prefcription  to  charge  a  Subjeft  with  a  Duty,  muft 

impart  a  Benefit  or  Kecompence  to  him,  or  elfefomcReafon  muft  be  ftcwVi  Why  a  Duty  is  claim  d.  Per 

Cur   4  Mod-"';    Mich    6  W.  &  M.  B.  R.    in  the  Cafe  of  Warrington  v.  Moleley. Prefcnption 

muii  be  in  a  fhmg  done.     Per  Anderfon  Ch.  J.  Godb.  16.  Pafch.  25  Eli?..  C.  B.  in  Skipwith's  Cale. 

20.  In  Trefpafs  for  takiug  &c.  his  Rea/s,  the  Defendant  jultified,  for 
that  he  had  a  Drift  of  Commofi,  to  fee  that  it  was  not  furcharged,  and 
that  the  Beafts  were  there  furcharging  the  Common  ;  and  theielore  hq 
tcck  s.nd  detained  them  'till  $1.  paid  in  Satisfa[fwii  of  the  I'rcfpafs.  Upoi) 
Demurrer  it  was  objefted.  That  a  Prefcription  tor  Dritt  ot  Common 
doth  not  warrant  a  Diftreis  unlefs  he  had  prefcribed  to  diltrain  alfo ;  but 
adjudgM,  that  'tis  a  Thing  of  Common  Right  tor  the  Prefervation  of 
the  Common.     2  Lev.  87.    fafch.  25  Car.  2.  B.  R.  Bromficid  v.Teigh, 

25  One  prefcrib'd,  that  by  Reafon  of  Repairing  a  Cbapd  of  Eafc  he 
had  been  Time  out  of  Mind  exempted  from  contributing  toisards  the  Repairs 
of  the  Church,  ^nA  this  was  held  a  good  Prefcription,  Frecm.  Rep.  468. 
pi.  644.    Mich.   1678.  Wife  V.Green. 

22.  A  Vicar  libell'd  in  the  Spiritual  Court  for  a  Stipend  of  4 1.  per  An- 
num, claiming  it  by  Prefcription,  and  Prohibition  moved  for  upon  Sng- 
geftion  that  7ione  can  claim  a  Stipend  by  Prefcription  but  a  Corporation  or 
Body  Politick;  And  fo  laid  Holt,  and  that  a  Sheriff,  tho' removable  at 
the  Will  of  the  King,  may  claim  a  Fee  as  incident  to  his  Office.  But 
againft  the  Prohibition  was  cited  Litt.  Rep.  19.  51.  12  Mod.  249,  Mich. 
loW.  3.  Birch  v.  Wood. 


(C)     fyljo  may  be  bomjd  by  a  Prelcription. 
I-  A  prefcnption  tioe^  not  run  asnma  tlje  King  tijerc  where  he 

J\    has  Right.     38  aiT*  22. 

2.  As  if  tf3C  Mm  UJajJ  Patron  of  Right  of  a  Chapel,  aUOtljCr  CaunOt 

I)ai3C  it  tip  j'i)rcfcrtptiou,  anu  fo  binB  tljc  Mtg»    38  M.  22. 

3.  a  Corporation  CaUttOt  ptCfCl'lbC  to  be  diich:irged  ot  the  ancient 
Grand  Cultom,  nor  to  receive  it,  bCCaUCC  It  10  an  annual  Revenue  of  the 

Crown,  anti  a  Cafualtp,  ass  Waif  and  Stray  &c.  ^«  6  3ia»  S)cap 
cario.  Eefoiueli*  ^        ,  ^  ^  . 

Jnd  yet  it  4.  A  Man  /ball  not  charge  the  Heir  in  Jmnnty  ly  Prefcnption,  that  his 
was  agreed,  ^^afhrs  have  paid  it  ^hnc  out  of  Mind.  Br.  Prelcription,  pL  11.  cites 
mV'/"  49  E.  3.  S.  Per  Belk.  &  tot.  Cur. 

Church  may  , 

be  charged  of  Annuity  by  Prefcription,  but  as  a  Corporation  as  it  feems.    Ibid. 

5.  It  is  faid  that  a  Vill  may  he  bound  by  Prefcription  to  provide  a  Pil- 
lory and  'tumbrel,  and  that  every  Vill  is  bound  of  Common  Right  to 
provide  a  Pair  of  Stocks.     Quaere.    2  Hawk.  PI.  C.  73.  cap.  11.  S.  5. 


(D.)  m^ 


Prefer  jption.  263 


(D.)     irhat  111  all    be  a  good  Preicription.      Where    it 

IS  uncertain. 

1.  TJT  Tenants  ofa  Manor  prcfCHtlf,  that  they  ought  not  to  pay  a  Fine 
j^  for  renewing  their  Copyhold  Eitatcs  more  than  two  V'ears  Rent, 

*  but  ought  to  pay  the  Rent  of  two  Years,  or  lefs  ;  tljijS  10  llOt  tt  fVOOtI 

Iprcfcription  for  tijc  uncertnintp ;  far  fomcttme0  tljc})  arc  ra  pap'tuia 
Sear0  itUiit,  aim  fonietime^  Icfj**   ^.  37  ^U  "ip,  E*  tjctuicen 

Greene  and  Bury.     \^tl  C»rUim» 

2.iJf  a  ®an  pVCfCnt5C0  to  pay  a  Penny  or  Thereabouts,  for  Tithes  Of 

rtjerv  iacre  of  arable  lanti,  tl)i0  10  not  jjoou  prcfcnptioii  for  tlje 
uncertainti?*    $@,  7  Ja.  03*  -^//e^^'s  Cafe*    l^cr  Citnaiiu 

3.  Preicription  lor  Co;;/7;/o« /^»j  7V«?/7^6T  appurtenant  to  Land,  with-Saund.  54^/ 
out  laying  Levant  and  Couchant,  is  ill  ;  you  can  put  in  no  more  than  is  S.  C.-^ — •? 
proportionable  to  vour  Land.  Per  Twifden  J.  who  cited  the  Cafe  ofS-^n'^f)- 4  — 
^aficmcn  U*  ^tOnelip  in  Glyn's  Time,  where  fuch  Prefcription  with-  ^  ^^J":  J!!* 
out  Levant  and  Couchant  was  held  good  alter  a  V^erdiil  j  but  if  it  had  iLcv.  2  <>. 
been  upon  a  Demurrer,  it  had  been  otherwile.     Mod.  7.  Mich.  21  Car. 

2.  B.R.  in  Cale  of  the  Corporation  of  Derby. 

4.  Trefpafafbr  digging  Turf  i  the  Defendant  pleaded  that  he  is  feiled  Siil.  554. 
of  an  ancient  Houfe,  and  prefcribed  to  have  as  much  'Turf  in  0:1a  Tear  as  Hill.  19  8c 
two  Men  could  dig  in  one  Day,    as  belonging  to  his  MeUiaage.     The  r'^r^Vc' 
Plaintift'demurr'd,   becaufe  he  did  not  Ihew  that  the  Turf  was  to  be    '    '    '    *' 
burnt  in  the  Houlci  and  as  it  is  laid  here,  it  may  be  fold,   tho'  he 

claims  it  as  appurtenant  to  his  Houfe.  But  it  was  anfwered  and  re- 
folved,  That  when  the  Thing  is  uncertain,  as  Eltovers,  it  ought  to  be 
applied  to  the  Houfe  to  afcertain  it ;  but  here  it  is  certain  enough  in  it- 
felf,  foil,  as  much  as  two  Men  can  dig  in  a  Day;  and  tor  Authorities 
were  cited  Rait.  Ent.  539.  and  i  Cro.  gjpOflllCr  ll»  Dap  ;  and  Judg- 
ment was  given  for  the  Plaintiff  Lev.  231.  Hill.  19  &  20  Car.  2. 
Hayward  v.  Cunnington. 


(E.)     -^g^h/ft  the  Piiblkk  Good. 

I.     A  ^3J;5  cannot  prCfCribC  to  do  a  Cljinn;  UlljiClj  10  a  Nufance;  S-.P.Jo.a;:.- 

/\  for  It  10  asrnnft  tije  liJiililicU  tjJooii.  ipill.  15  Ja.  B.H.  m  l%^'°f- 
Swrym  Crin.  16  Jia.  lo.  E*  in  tijc  Cate  of  t!jc  Dovecote.    i:icfo!'oeD  c';,.  i„  cafc: 
per  tuuim  Curianu  of  james  v. 

Hayward.— 
S.P.2R0II.  R.51  &  32.  Tiin.  16  Jac.  inCafeofDewel  v.  Sanders. Cro.  J.  491    S.Q 

2.  As  |)C  cannot  prefCribC  to  lay  Logs  of  Wood  in  a  common  High-  Cro  J.  445, 
way  fcambling  about, and  lufler  them  to  continue  there  for  a  long  Timei  ^'^""'o  '^ 

fot'tf)i0  10  a  3r3uftncc,  ann  fo  agauia  tijc  pitbiick  (Soon*    mi  ^s  iXlnlcZ 
Ja.  03.  atijucijco  netiueen  s.  c. 

3. 3f  a  'i^m  prercril3C0  tijat  Ije  anH  W  Prcticceiror0  who  have  been 

feifed  of  the  Manor  of  Coleberbert,  have  been  exempt  from  the  Govern- 
ment of  the  Mayor  of  the  City  of  London,  anU  Of  all  1)10  OiF(CCr0,  tlji0 

10  not  a  goon  j^refcriptioiii  for  lip  XW  ^3ean0  tljcp  of  tlji0  iLttiert? 
llj.ill  be  tuirijout  "©oijcrnuicnt,  tobicij  10  againft  laui,  ano  tljcrefore 

l)3i0>     I).  43  €i   %*  H.  Ctje  Count  of  Shreivsbury^  Cufe*     l^O-- 

)iion;eti  per  Ctiviani  in  £auo  i©arranta. 
4.  s  >  it  is  mi  a  ij3ciu  ]i)r:fmptton,  tIjat  Ije  anU  W  15)retiecc!rcjr0, 

fctlVa  01  tije  laiO  Qi/anor,  OnweUfeO  tOl>m  Allile  of  Bread  and  Aic, 

ann 


^^^4____ Prcfcription. 

.11  Go3"    faid  River,  and  BirW  tte  Sw  w  f??L"K,r^r''''",'''CtClJE0  in  the 
b.o»eh,        maintain  t]  e  Kev  and  Crfne    S  «,??.  "^i^  '?'*'"'«.  .1110  tljnt  tljt» 

fo'ii"y'  ,  *•    A  Man  cannot  preferibe  (.  b,  difiharsed  of  hh  Jlmm-mce  at  ,1,. 


(F. )     Againft  the  La-zv  of  God. 

Sn!'"uT  ^-    A  f,^„f  "Wyf^ftribC  to  have  a  Way  over  a  Church-yard    ffifl' 

cites  sc.       -TV.  It  be  S)anftunrp»    18^,4.8  ^"^rcn  >ara,  too 

^.^.,^8otoljai3eai©npchro'  a  church.  ,8e.4.8.  oatoolt pccfcnp^ 


Sec  cufto^s  (G)  Againft  the  Law  ofReafon. 

i*^  Prercriptiou  againft  Heafon  is  not  good. 

i^prefcHbc  ,,.^;.  ^  ^OrPOratipil  prCfCdbCg  to  arrefl  a  Man  for  Sufpiclon  of  Felonv 
to  keepM-     ^"d  imprifon  him  tor  three  Days,  and  then  to  carrv  him  m  rh^      ^^!?"3;, 

;«  >»«/>  Gaol  '     ' 

f£;C'!;ele^hStth^mieTe7letL1,.^^^  <?-../;  For  then  the,  were  irrepk.M  ly  tMe 

by  5  Days,  they  may  do  t  L  thre.  vl        '9;'!^^d'ately  by  the  Law,  and  alfo  if  they  may  fo  prefcHbe 
pi  80,  cites  iz\  4.V5  '  ^"'■^  "'''''''  "^  "°'  '■"'^'^^We  ;  Per  Brian  Juftice.  BrVrefcriptiS 

rorSnf  .   3.  3  Mait  cannot  Drercri&C  to  have  a  *  Chace  or  W.rren  in  anv 
^^^-^tl^t  ""'""'^'''^  °^  '■"  ^^"^-^^■•"  ^^^  Fee  andsSgnio^;;^ 


50  Hares 


Prefcription.  265 


;o  Hares  and  500  Co^iie.':.  Defendant /«/?;,■?«./,  bccaulc  he  had  Common  in  the  Place  whc-ic  &c.  fo  j 
McfiLiPi"  and  6  rani  L.iriAs  tor  i-i^o  Sheep,  ami  that  he  aiui  all  tlofe  ill oje  Ejlate  he  has  Time  out  of  Mind, 
have  uj'fd  at  fi'.ch  I'lme  xs  the  Coiii'iion  il-as  furchar^ed  ivith  Cones  to  Hunt,  Kill,  and  carry  tl:e»:  a-xvay  as  /» 
his  iUepi.'ir'e  aPi'ertai7:irjr.  The  Plaintiff  deimivrcd,  Sjcaufe  a  Man  cannot  make  fuch  a  Prcfcription  in 
the  free  W.ir'rsn  and  Freehold  of  another  Man.  And  zdlv,  bccaufe  a  Man  cannot  fo  prcfcribe  to 
Hunt,  Kill,  and  carry  away  his  Conies  a-;  Appertaining  to  his  Mcl'uage;  Bn:  a  Man  may  prcfcribe /o 
Ifave  fo  many  C.tii'S  to  fpend  in  I ii  Hc/ife  ;  And  foi'the'c  Realons  the  Prefcription  in  the  principal  Clde 
was  held  for  a  void  Prclcription,  and  Judgment  given  ior  the  Plaintili.  Godb.  1S4  pi,  163.  Hill.  <> 
jac  B.  R."Samf.>id  v.  Havel. 

4.  2ir  Lord  of  a  Vi'.l  pl'tfrctbCS  to  hive  a  Warren  in  all  the  Land  with-  r\-A-X^ 
in  the  Vill  held  of  him,  tljiS  IS  UOt  IJOiJD  ;  lOr  ComCS  tljlj   DalC0  1"/!^^^^^ 

tt)C  Lailtl.  45  ^5.  3*  13*  !■»  COntta  44  (iJ.  3»  l-«  ll»  3  IP«  6,  13.  U«  I„ (^uo war- 
ranto the  De- 
fendant claimed  the  Liberty  o\  free  U'arren  in  R.  and  pleaded  that  he  wa.s  feifed  in  Fee  ot  the  Ma- 
nor of  R.  wliereotthe  Lo:us  i  \  quo  &c.  was  Parcel,  and  fo  prefcribes  to  have  Liberty  of  Free- 
Warren  within  all  the  fiid  .Uatior  and  the  Demefnes  thereof,  fo  that  none  f\)aU  chafe  any  Game  oi  IVarren 
in  t! e  fxid  Manor  and  Demefnes  thereof  •iviti out  his  Lcaie  liTiie  was  taken,  that  he  and  all  thole  who'e 
Eftati  &c.  had  no  free  \^'arren  within  the  iaid  Ma-or  and  Demefnes  thereof,  ai"d  found  for  the  Dc- 
fe^idant.  It  was  objecfted,  that  this  Prefcripiion  was  not  good,  vi?,.  to  have  free  Warren  in  the  Maror 
and  in  the  Demefnes  of  the  Manor;  for  thougli  he  mig'.t  prcfcribe  to  have  it  in  his  own  Demefrcs, 
yet  he  cannot  prcfcribe  to  have  it  in  the  Lands  of  others  his  Freeholde>-s  ;  neither  ought  he  to  prc- 
fcribe^ to  have  it  as  Appertaining  to  his  Manor  5  but  to  this  it  was  anfwered  by  Poll,  That  a  Pre- 
fcription  to  have  free  V^  arren  in  his  Manor  is  good,  as  well  in  Lands  ot  Freeholders  as  in  the  De- 
me!hes ;  For  being  bv  Prefcription  it  fhall  be  intend.-d,  t'lat  this  Liberty  was  before  tliere  were  any 
Freeholders,  whole  Eftatis  were   afterwards   cxtrafted   out  of  the  Demehcs  of  the    Manor  after    the 

Beginning  of  this  Prefcription.  Cro.  C.  3ii.Trin.  9  Car.    R.  R.    The  King  v.  Sherington  Talbot 

This  Cafe  IS  abiidgcd  by  Hughes,  pag.  1499.  pi.  2(5.  as  refolved,  and  cites  9  jac.  B.  R.  The  King 
V.  Sherington.  Cro.  1 .  p.ir.  22".  —  And  Nelf.  Abr.  pag    127S.  pi.  11.  taking  it   from    Hughes,   cites  the 

Ca!e  as  in  2  Cro  227.  ^luriiljiton's  Cafe,  and  that  it   was  adjjdgjd [But  nothing  more  appears 

to  have  been  faid  in  the  Report  of  Croke  as  to  this  Point  ha:i  is  mentioned  to  have  been  anfwer.-d  by 
Foil  ;  nor  does  any  Opinion  of  the  Court  ■-s  to  this  Point  appear  in  the  Report  ot  the  S.G.  Jo.  523. 
The  Kirg  v.  Shenngion  Talbot  ] 

5.  In  P-eplevin  for  taking  a  Sail  of  a  Ship;  the  Defendant  avowed,  Another  £■.-- 
for  that  he  was  feifed  in  Fee  in  the  Manor  ur  Padltow,  where  tnere  is  a  ccpti.<n  was_ 
Common  lla  extendinir  from  fuch  a  Place  &c.  (or  unlading  Sj!t.  and  that  ^'''^';?  ^9  ."^'''* 
he  and  all  thofe  &c.  have  ufed  to  repair  the  laid  Key,  and  have  kept  j^  [,^j   ^^^  * 
a  Buihel  for  meafuring  Salt,  and  and  have  had  of  cjery  Ship,  arriving  diilrain  the 
there  lade::  li-ith  Salt^  one  Etijbel  oi  Salt,  and  becaule  a  Buihel  uf  Salt  w  as  Siiipin  De- 
not  paid  according  to  the  Prefcription,  he  avows  the  taking  the  Sail ; '^'^''^°y^y- 
The  Plaintiif  pleads  in  Bar  to  the  Avowry,  that  the  River  on  which  this  ToH,  where- 
Key  is  pretended,  is  a  great  River  of  ten  Miles  in  Breadth^  and  that  the  asthe  Maik-r 


ner 
s. 


ther  the  ohip  arrived  at  the  Key,  becaule  it  might  come  thither  when  oftheGood 
the  Mariners  pleafed  ;  But  per  Hale  Ch.  J.  This   Prefcription  is  only  Hde  Ch  J. 
for  a  Whart,  and  not  for  a   Port,  and  here  ought  to   be  reaibnable  Re- '^^"^'^^j'^'"* 
compcnce  tor  the  Prelcription,  and  he  who  has  a  Port  ought  to  provide  i^cft^^in"^^" 
Weights,  Meafares,  and  other  Things;  And  in  this  Cale  the  Avowant  port.    i. 
might  as  well  prefcribe  to  the  Confines  ot  France  as  to  feven  Miles  dil-  ThePropri- 
tant  trom  the  Key,  and  therefore  it  is  not  a  good  Prefcription,     And  it  '^  ^^\y  ^{ 
is  not  faid  what  Salt  was  in  the  Ship,  and  there  might  not  be  more  than  i^^^^^'^J^'^ 
two   Bulhels.     And  therefore  Judgment  was   given   for  the  Plaintiff  jt  fo,- all  ths 
Raym.  232.  Mich.  25  Car.  2.  B.  R.  Prideaux  v.  VS^arne.  Kirg'sSub- 

jefts  to  come 
thither.  3.  The  Intereft  of  the  King  to  guard  it  And  it  having  been  infiftrd,  That  a  Man  may 
prefcribe  for  a  Thi-g  out  of  his  Manor,  as  in  Sir  Il^CUrj' (iLpUtrabk'a  Cafe  f)r  Wreck  as  far  as  he 
could  fee  &c.  Hale  laid.  The  Cafe  of  Wreck  differed  much  from  this  ;  F.r  that  is  Nullius  in  Bonis. 
Scd  adjornatur.     Frccm.  Rep.  555.  pi.  447.  Mich.  16-3.  S.  C. 


X  X  X  (H) 


2  66  Prcfcnption. 


.cc  .u  cm        ^pj^  PrefcTlption.      Agalnfi:  the  La^v  of  the  Lq/ni. 

I,    A   ShcriiT  Of  iT  COUlltl'  CailUOt  prCfCVibC  to  have  Gifts,  or  to  take 
jf\  any  thing  to  his  own  Die   as  Sheriff^  JfOr  IjC   OUljijt'iO  tilke 


.  jto  have  a  COUrt  Cf  Chancery 
,1         .n  j-v4iwi'ii  >---   ^-<.VL^,..   ....v^i  .1.   L.i^  ^wjrt   ot   the  Sheritts  ot   London, 

the  cou/r  tljou.Tlj  ftjci)  Court  cannot  le  gtantcn  lip  tfjc  Icttcts  patents  of 
and  fotbc'   tijc  l%inn;,  ^.5  3a»  bctiuccn  Ja^rczv  nnH  /^t^^^  per  Ciirtauu 

flavor's 

Court  of  London,  called  the  .)f/:rk  Court,  becauTe  the  Mayor  may  mark  any  Caufein  the  SherifP.^  Court 
before  Judgment,  altho'  it  be  after  Verdidt,  and  may  examine  it. Cites  lo  E.  6.  14.  and  tiiat  in  the  prin- 
cipal Cufe  a  Procedendo  was  granted  to  the  Mayor's  Court. 

Eoll  R   ir9      ?♦  CIjC  Mayor  and  Citizens  of  York  cannot  pitfCrlbC  to  have  a  Chan- 

s.c.-HoK  eery  there,  ano  to  auiiUt!  fudj  proccfe  iis  tl)c  Coutt  cf  Cfjauccrp  at 
f--\'^-;"i'U©cffnini{tcr  aunuti0i  T5cciiuie  it  w  mtatii)  tsantjerou?  tljat  uicl} 
Srirthe  i^fitP  Coiuoratton0  fljouin  Ija^jc  fiic!)  courts.  9^>  13  M  'B.  pec 
Courts  of  CtiriauT,  pK^tcr  i®artnuton,  bctUJcm  Martui  ami  Ahrjbai.  a:)jDctije 
E.^uity  of   (iinic  Cafe  ipoiiactis  Reports,  86, 

London   and 

the  Cinque  Ports  are  bv  reafon  of  their  having  Afts  of  Parliament  for  them. — Ko  Man  can  claim  to  hoU  a 
Quit  ofChavcery  by  Prefcription,  becaufe  cverv  Prcfcription  is  againft  Common  Right,  and  a  Chan- 
cery Court  is  founded  upon  CoiT?non  Riglit,  and  is  by  the  Common  Law.  Godb.  i6z,  pi.  560.  Mich. 
15  Jac.  B.R.  The  Mayor  of  York's  Cafe. 


(I) 


A«;alnft  a  Statute. 


'iD 


Z     Inft.       tCy 


zi. 


2 


I.    A  ^*^»  ^^^^°^  prcfcrilic  or  alleite  a  Cufltsni  aixainff  a  ©tatutCi 
/\  'Bccaulc  It  10  fatter  of KecorD,  ann  tijC  moft  Ijiafj  Proof 
anti  Chatter  ofRccortimlaui.   Co*  litt*  115* 
Inft.  21  s.    2.  ci  93an  may  ptcfcritjc  or  alfegc  a  Cuftom  apinJ!  an  3ft  of  i3ar= 

p.  asforEx-j^-^ji^piij-    when  tlie  Prefcription  or  Cullom  is  laved  cr  preler\ed  by  ano- 

of7:o;do^^herAaCO,lUt.xr5, 

claim  by 

Cullom  to  five  Lands  in  Mortmain  without  Licence,  becaufe  thi.t  Cuftom    is  faved  and  prefervcd  not 

only  by  Magna  Charta,  cap.  9.   but  by  diverle  other  Statutes  Sc  fic  de  Cscteris. 

There  is  a  c,,  ^  Statute  in  the  Affirmative  OOCSS  UOt  tOU  a  CUffOin  Ot  prefCriP' 
Diverfitybe-(jQ„^   CO.  lltt.  HJ. 

tuterthaTbe  4»  C^^^]  a  g9an  mai)  prCfCribCto  cut  his  own  A\'ood  within  a  Forell 
in  theKeo-.i-  without  the  View  of  the  Foreltcr,  though  the  Statute  of  34  E.  r.  pro- 

five;  For'^if  vidcs,  that  none  fliaii  ctit  anv  '€xct,  tljouijO  W  ouiu  Ctce,  luitljin  a 
a  Statute  in  ^^^^Q  tuttijotit  tlje  DicU)  of  tJjc  JForclTcr ;  OSecaufe  this  Aa  h  but  in 

be'dechra'''"  Affirmance  of  the  Common  Law.  16  CU  ^CaCCariP,  aHjUDSCtl*    €0, 

live  of  the    !Lltt.     115* 

ancient  Law, 

that  is  in  Affirmance  of  the   Common  Law,  there  a  Man   may  as  well  prefcribe  or  allege  a  Cuftom  a- 

gainft  fuch  as  he  mav  againft  the  Common  Law.  Co   Lift.  1 1  5    a. But    Lord  Richardfon  denied. 

tliis  Divcrfitv,  and  faid.  That  in  neither  of  the  Cafes  a  Prefcription  can  be  againft  a  l^le.gative  Sta- 
tute, which  Mr  .\ttornev  alio  affirmed,  and  therefore  held  it  very  ftrong,  that  a  Prefcription  could  not 
be  to  fell  and  lell  Wood  without  View  of  Forefters,  unlefs  it  were  with  the  Help  of  an  Allowance 
and  then  we  muft  intend  that  there  was  a  Charter  upon  which  the  fii  II:  Allowance  was  made,  becaule 
the  Words  arc  exprelsly  negative,  [vi,-.  ]  Nee  poteft  aliquis  aliquid  dare  vcl  Vendere  fine  Licentia  Do- 
mini Regis.    Jo.  i-o,  2-1.  S  Car  Itin.  Windfor  in  Lord  Lovelace's  Cafe. But  Ibid.  280.  Tiie  Coun- 

fcl  fiid,  Thev  took  Ld.  Coke's  Difference  to  be  a  good  Dift'erence  between  a  Statute  wliich  is  only  decla- 
rative of  the  Common  Law,  a.nd  a   Neguive  Statute  which  is  introduitive  of  anew  Law  ;   th.it   againft 

the 


Preicription.  267 

the  laft  no   Piefci-iption  is    giod,    but   in    the  other  Cale   no  Alterdtion   is  made. And   2 

Bills.  ;6  Mich.  10  Jac  in  CiC-  ofJiJ.l'C  I'.  ^lUltl),  it  is  TaiJ  Ai-.;.  that  a  Man  may  prcfciibc 
aeainll  a  Statute  in  the  AiKiinative,  ui,<i  vicos  1 1  H.  4.  16.  Stamford,  fo.  ^S  and  Fit/.h.  Kat.  Bicv.  t\>. 
>ji.  and  50  Aff.  5S. 

A  Man  n^ay  pvcfcribc/o /.(iu/<!  Leet  oftrcr  thai:  tivice  a  Tear,  and  at  other  Days  \h^n  arc  fct  forth  in 
the  Statute  of  iMa^na  CIvuta,  tap.  ;5.  Eccaufc  the  Statute  i.s  in  the  Affirm.itive.  2  Le.  2S.  The  Queen 
V.  Partrid'^e  — Cio.E.  12-;  Hill.  ^lEii/.B.  R.  S.  C.--S.  P.  but  if  it  vva-:  a  Leet  by  Grant,  the  Defendant  in 
an  Avowvy  for  an  Amerciament  in  the  Leet  nnirt    have  flievvn  that    it    \\m  held  within  a  Monih  after 

Eaftcr  Src.  Cro.  K.  245.  Hill.  ;;  &  34  P.liz..  B.  R  Porter  v.  Gray Kclw.  14S  a  pi.  26. 

-  Le.  179.  Lawfon  V.  Hare. 

Prefcription  for  the  Inlaiitavli  of  lie  ^i-f>;s  in  Sarrv  to  cut  dofsn  Jf'ooii  in  tie  Forrjl  is  not  good  ;  For 
per  Nov  Attorney  General,  there  can  be  no  Prclcriptiuii  hnce  the  Statute  of  Charta  de  I'lri-jla  cap.  4. 
which  is,  T/fJ*  all  irnlls  c'T-c  don?  after  that  tu/ie  without  the  Kijig's  Liicn,  e  jhuld  ie  pii.ipaile  ;  iNav,  a 
Preicription  to  fell  V\  ood  fer  I  ilitm  I'orepanoruni  vel  Ferdariorum  is  not  good,  but  it  niulf  be  ^ci- /^' //;<»/ 
^5=  vV//£>i.i<<v//T«;  Forellarioruni  &  Verdariorum  ;  For  if  it  be  per  Vifum  only,  then  if  the  Forertcr  or 
Verderor  be  required  to  come  and  view  it,  and  do  not  come,  you  m.iy  cut  it  down  without  View.  Jo. 
2-5.  8  Car.  In  Jiin.  \^'^;ld^or.  The  Inhabitanti  of  Egham's  Cale. But  Ibid.  276.  in  a  Memoran- 
dum, cites  Sir  Tho.  Palner's  Cafe  5  Kep.  25.  a.  that  there  is  no  Diverfity  where  the  Wood  is  to 
be  taken  per  Vifum,  or  per  Vifum  &  Allocationem  ;  For  that/?;  hotk  Cafei  tipcn  Recjuefl  made  a?id  Reftt- 

f.il    the  Party  may  take  them  zvithcut  I'lcx  or  Delivery Noy  cited  a   Ca!e  to  be  relolved  6  Jac. 

that  ;h  (i  C7.i/e  a  Man  might  prelciibe  to  cut  down 'VN'ood,  becaule  they  are  not  within  the  Statute  of 
Charta  de  Forclla;  whence  it  was  llrongly  inferr'd,  that  it  could  not  be  prclcrib'd  tor  within  a  Forell, 
Jo.  276. 

5.  Trefpafs,  hecaufe  the  Defendant  prefcribed  to  difirainfor  *  Rent  upon  *  Ong.  h 
the  Ldiid  held,  and  to  carry  the  Dijfrefs  to  D    in  a:!vther  Cuiinty,  therefoie  '.'' .'^'■"■)  ^^^ 
he  was  condemned  i  for  a  Man  cannot  prefcribc  againll  a  Statute,  and  fhoald  be 

the  t  Statute  is,  that  a  Man  Ihail  not  diltrain  in  one  County  and  carry  (l\rm) • 

the  Diltreis  into  another  Coi^nty.  Br.  Preicription,  pi.  50  cites  30  Afi".  38.  t-'>;'^t.  Marl- 

6.  Attachment  upon  a  Prohibition  againlt  the  Defendaiu,  who  cauled  *" '."^"j  w'^it 
him  [to  be]  cited  for  TithesdV  Sil\  a  Ctedua,  and  the  Defendant  prefcribed  c.\n\6. 

to  have  'tithes  de  Siha  Cxdiia^  and  by  the  Reporter  he  cannot  prefcribe 
ao-ainft  a  Statute  made  alter  Time  ot"  Memory,  and  that  Pielcripcion 
cannot  make  it  to  be  impleaded  in  the  Spiritual  Court,  by  which  the 
Defendant  imparled  &c.  Er.  Preicription  pi.  2.  cites  9H.  6.  56. 


(K)     What  fhall  be  a  good  Prefcription.      Againft  Ren-' 
(hn  or  Common  Right. 

I.    TC  IS  not  a  ffOOU  PrCfCnptiOU  to  have  aHeriotof  every  Stranger 
X  dying  withm  his  Manor  41  d.  15«  bCtlUCCU   Perkins 

and  Ciimberlord,  nUllttlgCn*  CItCU  ^.  3  i^>  3.  E* 

2.  Jf  i\  Sheriif  pVClCnl'iC  to  have  a  certain  Gift   at  every  Tourn  iJC* 

Clns  10 aijauia  common  Kigljt,  Jfot  a Mt is nt tljcuaui  of  tijc 
Donor*  42-  €*  3. 5-  iiti)uti0eti* 

3«  3if  tljcrc  be  a  Lord  ot  a  Viil,  and  another  has  a  Leet,  but  no  Land 
belide  the  Leet,  and  he  claims  by  Caufe  of  the  Leet  to  be  Lord  oi  the 
*  Wafts  of  the  faid  Vill  by  Prefcription.     -CljIS  (0  il  DOlO  l^rCfCnptlOn. 

9  %  6. 44.  In  cuvta.  ^  ,  ^ 

4.  ^  20iin  maV  PtCfCVibC  to  have  a  Fair  in  the  Franktenement  oi  ano-  sTp.  AndX 

ther£0ajU  II  ip.  6.  23.  al%n  Booths 

there.  Br. 
Prefcription.   pi  97.  cites  11  H.6,  2j. 

5.  A  Man  may  prefcribe.  That  if  his  Beajls  efcape  into  the  Land  of  B. 
thit  b.  cannot  dtjiratn  them,  ncr  have  Ad  ion,  and  a  good  Prefcription  ;  by 
all  the  juilices.  Quare  ot  the  Realon.  Br.  Prefcription,  pi.  71.  cites  8 
E.  4.  5. 

6.  InTrefpafs;  by  the  Court,  where  a.  Man  prefcribes  that  in  fiich  a 
Vill  has  been  a  Aiarketfich  a  Day  Time  oat  of  Mind,  and  julHlied  lor 

buMntr 


2  68  Prcfcription. 

Er  Prcfcriti-  buying  the  Goods  there,   this  is  a  good  Preicription,  and   a  eoi  d  Cuil 
^'■''"  s'  c'      ^^""'  '■'^"'  ^^  ^"'^^  nctjhcisj  to  ivbom  the  Alarket  Ltlongs :,  p'or  per^Littleton 
it  ^ocj  -iiith  the  Land.  Br.  Cullomes,  pi.  4S.   cites  12.  E.  4.  8. 

7.  If  a  Man  prclcribcs,  that  \i  he  linds  Goods  ivithin  his  Mancr.^  that  he 
pall  have  theiii^  this  is  a  void  Preicription  ;  For  it  is  contrary  to  Realon 
and  a  Thing  which  cannot  have  Lawful  Coniinencement.   Br.  Prcfcrip- 


tion,  pi.  93.  cites  Doct.  &  Stud.  Jib.  2.  cap.  ci. 


rip- 


tion  1  ?-'•''"  ^-  -^^  ''^  ?°  8°°^  Prescription  todijtrain  jor  Damage feafant,  and  to  retain 
cites ^5.  H.';.  the  rjhivd's  till  he  has  Fine  at  his  Will i  For  it  is  contrary  to  Common 
S  K  Right  and  Reaibn,  and  a  Wan  ihall  not  he  his  own  Judge.  Br.  Prefcrip- 

tion,  pi.  loi.  cites  Littleton  tit.  V  illeinage. 
.^otheCuf-         ^    Preicription   to   c/// GV^/}  in  another's  Land  to /rezc  the  Chare h  is 
do"i  llsh^t    goci^^-  ^'^'f  ^^^-  J^i'ir-  17-  Piiicti.   15  Car.  in  Bond  s  Cale. 

ill  the  Land  of  another,  is  good.  Per  Cur.  Mar.   17.  in  Bond's  Cafe  ■ .  So  fur  the  InhabitaiUi  of  a 

'J'uwn  to  liuve  a  H  ay  over  tlic  Lard  ot  another  to  their  Church.  Ibid. 

10.  In  cafe  the  Plaintiff  declared,  that  he  was  fcifed  o^  an  ancient 
Meiiuage  &:c.  in  T.  and  that  he  and  all  his  Anceltors,  whole  Heir  he  is 
Owners  of  the  faid  &c.  had  ufed  Time  out  of  Mind  to  ftt  tip  Hurdles  m 
Jpcrta  Platea  ot  T.  near  the  Jaid  Meffuage  every  Alarket  Day  to  viak: 
I'cnnsjor  Sheep.,  lor  which  he  &c.  have  uled  lor  fuch  Pennine  to  receive 
Money,  and  lurthcr,  that  the  Defendant  Brooke  cut  down  hfs  Hurdles 
Per  quod  Prolicium  fuum  inde  amilit;  It  was  objected  upon  a  Demurrer' 
That  this  Prefcription  was  too  general,  it  being  to  fet  up  Hurdles  "in 
Aperta  Platea,  not  jhewing  whether  on  his  oisi^n  Lands.,  or  on  the  Lands  of 
another;  For  though  Filhermen  may  prcfcribe  to  fet  Stakes  on  other 
Men's  Lands  adjoining  to  the  Sea  to  dry  their  Nets,  that  is  for  the  Com- 
monwealth i  but  this  isonly/or  ^z/)nz)7/f  GW;;,  which  cannot  be  on  the 
Lands  ol  another  ;  but  it  was  anfwercd  that  the  Prefcription  was  good  • 
for  a  Market  is  as  well  for  the  Benefit  of  the  Publick  as  Filhing  •  And  af- 
terwards Judgment  was  given  for  the  PlaintixT.  i  Le.  108 'pi  tat 
Pafch.  30  Eliz.  B.  R.  Ferrers's  Cafe.  '  ^  '     ^'' 

11.  The  Plaintiff  prefcribed  for  T^oll  of  Goods  bought  within  his  Manor 
for  tllXI  ^'^-  ^^-  i'^or  every  Packof  Mancheiler  Wares  bought  in  Manchefter,  ex- 
fonablenefs  cept  ot  the  Burgelfes  there ;  And  the  Queltion  upon  the  Pleadings' was 
of  this  Pre  W  hether  a  Toll  hidcpendant  of  all  Markets  and  Fans  can  be  good^  with- 
fcnption  out Jheii:u!g  that  tie  Siihjeii  hath  fome  Eenejit.  The  Court  was  not  fatified 
unecued  with  this  Prefcription,  becaufe  there  was  no  Recompence  for  i c ;  And 
b.  inhere"  ^'vcry  Prtfcription  to  charge  the  Subjeft  with  a  Duty,  mult  import  fome 
theDefen-  Benefit  or  Reccmpence  to  him  who  pays  it,  or  elle  fome  Reafon  mult 
datitjufiified  be  fl^ewed  why  the  Duty  is  claimed.  4  Mod.  !?io.  32^  Mich  (,  \V 
.n  Trefpafs    ^  ^^j_  ^  ^   W  arrington  v.  Moleley.  =  ^    ^  ^  .  o.    vv . 

tor  pulling  "  J 

down  of  a  Fold  a.s  Servants  to  the  Lady  of  the  Manor  of  Hadings,  who  by  reafon  of  her   Sei-rniorv 
had  ^Frarkjold  tlroitrhout  tU  faid  /"///,  fo  thai  m  other  cculd  fold  there  withut  her  Leave.  ;  And  it  wa"  held 
thattho  this    extended  as  \i  ell  to  Strangers  as  to  thofe  of  thatVill,  it  was  good.  And  [D   "52  b  Tnn   iS 
^'l?'  ^™"  ;fo'',''<^ul\2m^ca"'-''^9''^"^Se]  where^the  Lord  Mayor  of  London  brought  an  Aftion  on  the 

■e 
dged 
:!)ouc 

^       o      J ........  J  •----"  ■-.  -.•-  -  -.—.j,^,  ..  ......  ^^^,,  w.^  i^aiiu-,ui  inc  manor  or  nairines,v.he'-e- 

ot  the  J  enants  had  the  Feedings  and  that  may  have  a  Reafonable  Commencemenr.  4  Mod  -•'■'  --- 
■—- — -[The  Ca!e  of  the  Foldage  was  adjourned  over,  and  was  that  of  Jefterey  at  Hay  v  Ford'  &  cVav 
\  ide  the  Year  Book.]  '■ 


(L)    Agalnft  the  Law  of  the  Land  md  Common  Rich. 

Tp€  Tenants  of  a  Manor  maP  prcfcnbe  to  have  the  fole  Com- 
mon fOt  tljCll-  fOOXiC^  in  a  Meadow  affer  the  Grafs  cut,  and 

made 


Prefcription.  269 


made  into  Grafs  Cocks,*totye  and  keep  their  Horfes  there,  fo  chat  thev  do  *0nf5,  is 
not  meddle  with  the  Hay,  till  Lammas  DaP  iintl  aftCC  tilUimaS  DilD  ^''"^''^ 

foi-ail  fCouinionablCBcafld  levant  aun  coucOanttipoiUljcicCcnc- toii-.  u 
niciitd  at  lanve,  mitlioiit  +  r.'iiiG;  or  feccpmij  till  Latip  Dap  in  lent  an^ccoivena- 

Lord  of  ^-""S  '^ 


iif  • 


tf)c  l^ear,  antJ  tijc  uujaie  t3eitan;c  tiii  LiViima0,  oc  h  tUI  tijc  h  oiiir  h 

€nttii!.\,  If  Ijc  l^ccp0  It  tot  Dap.  pafc.  1 2.  car.  15.  Ia.  bctiuccn  /r/w/-  c^hare:  • 
hnit/  anb  Sir  T/vM  !s  Paine,  b))  IStanilfon  Cijief  Saaicc,  \)z  onip  Dcnm 
mConituponCUtricnceataCrialat'Barr,  in  an  action  upon  ti)c 
Cafr  far  catinn:  of  tijc  Common  of  a  Commoner;  ^-^ut  l)e  aicrcco 
tijat  tl)C  Defciuiaut  footilD  Oaisc  tOercof  a  ^^p:da(  pertiift  if  !)c  luoiilD, 
but  after  l)c  \mm  not  \mt  a  Special  Dcro.ct  for  tijc  Cleerncfs  of  it, 
anniipontljigs  a  *Sencral  Dcrtiift  luas  iji\)en  fcrtlje  plaintaii  jFor 

here  '■he  Lord  is  onlv  excluded  for  a  Time  ;  Qnil  It  10  a  COmmOll,  Ut 

ad  nmcij  as  ni^jcr^  fdjcral  li^crfon^  fjaiic  l^.ulurc  tijere  m  refpea:  of 
tl)cirfe\jeral  tCenemcnts. 

2.  But  ^5.  I  o.  Ja.  13.  $  'Cr.  I  oja.l^.  bCtlUecn  Kennck  and  Pander  pCt 

Cunmn  It  10  net  a  n;ooi!  picfciiptlon,  tijattlje  Lorn  froml'ammasj^^- J;""'' 
to  Cantileuni^  ouii;i)tnot  to  put  ui  more  tijan  3  ^3flrfe.s  Ducinn;  tljis  ftinted  y^iv 
'^mt,  loecaufc  tlje  Lotis  cannot  be  ninten*  1 29  s.  c.  — 

Brounl.  '.S-. 

S  C. Noy.  1^0.  S.  C.  adjudged. z  Brownl  60.  S.  C.  The  Plcadinir<; Cro.  T.  ioS'  S.  C. 

[  But  that  is  only  upon  the  Point  ot  the  Commoners  diftiaining  the  Cattle  of  the  Lord  D.im-igc  feufanr  ] 

3.  3'f  a  C^an  pVefcribe^  to  IjaUC  Common  Oi^  P.ifture  or  Ellovers  {n'^'^=t'^= 

t{:e  @)Cii  of  uiiotijCi  a3an,  anD  xUx  toe  £L)ii3ncr  of  ttje  %m\  fijall  be  ^r';'  '"^"^ 
crcluccn  froai  ij.^jui^  Common  tfjere,  tljiSis  a  j^iefcription  or'"'  " 

CUaom  aSamK  tlJC  Lam,  tQ  exclude  the  Owner  ot'che  Soil  ;  fOt  It  i^ 

auauiit  tijc  j^ature  of  djis  i©orr!  Common ;  for  it  tDas  implicts  up= 
on  tt}c  ftr-f  ^Stant  of  tijc  Common  tucre,  tijat  tljc  ©uincr  of  tijC 
S)Oil  fijoii'C  intercommon  \yitt)  Ijim.   Co.  l.iit>  1 22.  auo  tijcre  citcai 

p.  26  Ct.  15.  E.  betUieen  Whiteand  Shirlami  ayjuBijeti* 

4.  ^  a5an  map  pveferttie  to  ba'oe  Separaiem  Piichariam  in  fuel) 

UDater,  and  tljCtebP  to  exclude  X\)l  Lord  of  the  Soil.     CO.  Lit.  122. 

5.  But  a  S^an  cannot  prcrcnbe  to  Ija^C  Common  of  Pifchary  or  Li- 
bera; piicari^  in  fucij  }©ater,  ano  to  cvcluBc  tIjc  ©uincr  of  tlje  ^oil  i 
for  it  is  aaainft  tijc  Ji5aturc  of  a  Common  of  Libera  pifcaria.  Co. 
Lit.  122.  Sno  tljere  faiD  ti)at  It  U)uS  lo  tefoMti  \\\  15auh  bctluccti 

Chunmy  and  h'ljhen.     ^nO  2)9.  29.  30.  <&{,  bCtiUCCn  White  and  ShirLind, 

aniiJ  fcctvueen  t'r.ftin  undCratchrcdt  t!)e  Came  Ccrm. 
6.  a  rf3an  map  ptefcnbc  toijaue  Soiam  Veituram  of  catain  Lanus  in  Repic 

froin  llich  a  Dav  to  luch  a  Day,  and  bP  tbtS  tO  exclude  the  Owner  Of '"".^'-'-  f''*" 

tlje^oil  from  panurinu  orleeoino;  ttjcrc;  forbpffucb  <©raiit  tijiS c '^'Je^.J ; 
is  not  anp  Common,  nor  impiirs  aup  3^ntercommoainiT  bp  tije  Acres  cf 
0a)i!cr  of  tbe  gioil,  but  tijat  tlje  Grantee  fljall  Ijaue  tijc  fole  i^ailure.  Land,  the 

Co.  Lit.  122.  Defendant 

7.  So  a  $^an  map  prCfCrlbC  to    ba\3e  Scparalcm   PalUiram   i^i  fuch  ^.-Hatr  sii. 

Land,  atiU  to  eccUioe  cije  Qusner  of  tijc  S)Oil.    Co.  Lit.  122.  g  s.  ar.d 

laid  a  Pre- 
icriptio'i  in  him  fe  )>a<te  Her'o.irre  avii  Pajlrirnpe  in  the  faid  f.ve  ^-^cres,  ivhen  it  was  net  /civn.  PlaintiH  de- 
trufr'd  ;  it  was  objected,  Tliat  this  Prefcnpdon  was  not  good,  it  beinfr  not  like  a  Prefcription  to  hai-e 
Comrr.on,  which  is  only  a  Takin<^  the  Profits  by  the  Mouths  of  Cattle,  nut  this  is  all  one  as  t.)  prcfcribe 
to  have  the  I>and  itfell;  for  by  the  Demi'e  of  the  Herbage  the  Land  itfelf  palVeth.  But  adjudged  that 
the  Prefcription  was  good,  becaufe  it  niiejt  h.ize  a  good  l>e,nhinw!.  hy  Grant,  and  confei]uently  it  it  might 
be  good  by  Grant,  it  may  be  good  by  Prefcription.     Winch.  6.  Pafch.   19  Jae.'  Sir  George  Sparkcs's 

Cafe  Hutt.  4.5.  S.  C'  Bv  the  'Name  of  Pitt  v.  Cluck. 

In  Trefpafsby  the  Lord  of  the  Manor,  the  Defendant  as  Terant  prefi;ribed  to  have  Solain  Paftur/im  of 
a  Qoff  Onitii  t'-nifore  Jhr.i  The  Court  v. as  divided  in  Oiinion,  whether  this  Prefcription  to  have  So'e 
Pafturc  of  a  Clofc  of  the  Lord's  Omni  tempore  Anni  be  go()d  Wild  and  Archer  J.  held  it  good,  but 
Vaughan  Ch.  ].  and  Tyrrel  contra.  It  was  intended  to  have  been  adjourned  into  the  Exchequer  Chim- 
ber,  buiv.asnot.     Afterwards  it  was  brought  ir.to  B.  R.   ard  the  Prefcription  ad/jdged  good.     Le/. 

Y  y  y  253. 


270  rrefcription. 

2s;     Mich.  20  Car.  2.  C  B.   Sir  Hen  North  v.  Cox S  C.  ^'1^lgh  .  251  to  2  jS.   the  Court  v.aadi- 

vi<1cd. — Vent  381;  to  jt^S.  S.  P.  (intcralia)  argued  by  Sir  Francis  North,  in  the  Ca(c  of  ^ofttT  b. 
J|?ortl),  in  the  Court  ot  Exchequer  ;  and  the  Report  lays,  pag.  59S,  That  afterwards  arotaer  Action 
was  brought  to  Trial  in  the  Exchequer,  and  after  a  full  Evidence  of  about  4  or  5  Hours,  the  Piaintitf 
rot  daring  to  liind  to  the  Venlift,  was  nonf'uited.— — S.  C  Lev.  268.  261;.  where  it  was  argnca  that 
Prelcription  to  lave  J-ohim  Paflurani,  and  exclude  the  Lord,  is  not  good  ;  and  to  that  Purpofc  were 
cited  Fir-h.  Pre(criptio!i  51.  Hutt.  45.  Co.  Litt  122  Yelv.  129.  Cro.  J.  256.  whence  it  was  iiiferr'd 
that  the  Tenants  might  prefcribe  to  have  Part  of  the  Prcfts  throti^hcut  the  'ahok  fear,  cr  all  the  Prof  ts  for 
Part  oj  tl  e  )  e,ir  ;  but  that  this  here  is  to  exclude  the  Lord  of  all  the  Profits,  and  is  like  a  Cuftom  to  hane 
afl  the  Ccniniov,  nnii  cvvWe  the  Lord.  Hut  it  was  anfwered  and  refolvcd,  Tti.it  this  is  nor  to  exclude  the 
Lord  of  all  the  Profits  ;  for  hejhnll  have  the  Mir.es  and  the  Trees,  and  is  not  like  to  a  P  e/cripthti  to  have  all 
lie  Cori!/!:or,  arrd  exclude  the  Lord,  'xhich  Would  be  repfi,r;>ia/it ;  for  in  all  Cafes  of  Common  the  Lord  i.s  to 
intercommon  w  ith  the  Tenants  in  the  Nature  of  Common  ;  and  confei|uently  to  exclude  the  Lord 
■would  he  repugnant  to  the  Effcn'-e  of  Common  ;  and  judgment  was  given  for  the  Defe-dant.     Trin.  zt 

Car.  B  K. — ■ Saiind.  34-  to  353.    The  Pleadings  and  Arguments  of  the   Counfcl      And  lays  the 

Court  feem;d  to  incline  that  the  Prefcription  was  good  ;  but  th.it  upon  a  Trial  at  Bar  the  Tenant,s  could 

not  prove  their  Title  as  alleg'd  ;  whereupon  the  Lord  had  a  Verdidt. In  arguing  this  Cafe,  the 

Counfcl  for  the  Plaintiff  cited  a  Cafe  in  Trin.  1654    Rot  '549.  in  B.  R.  where  one  claimed  a  Foid-O.-ur'e, 

fliid  excluded  the  Oiir.er  of  the  Soil  hy  Prejcription,  and  adjudged  good. And  that  a  Prefcription  hy    the 

Copyholders  to  have  Soh^rji  Pafiirctm,  exclufivc  of  the  Lord,  was  adjudged  good  ;  but  tliat  notwith- 
ftanding  fuch  Prefcription,  the  Soil  is  the  Lord's",  and  he  hath  Mines,  Trees,  Bufhes,  Coals,  Stones 
&c    and  he  mav  dig  for  Turfs.     2  Lev   2.  Pafch.  23  Car.  2.  B.  R.  ii;;opbin5  i).  l^obitjfon,   and  Mod. 

-4    Mich.  22  Cjr  2.  B.  R.  by  the  Name  of  Hoskins  v.  Robins 2  Saund.  324   S.  C.  adjudg'd. — . 

Pollexf.  Rep.  13  to  25  S  C  argued  by  Pollexfen,  and  adjudged. S.  C  cited  by  the  Reporter  as  ad- 
judged.  Vent.  598.  at  the  End  of  the  Cafe  of  Potter  v.  North. 

*n'ft^'  '^  ^'  Ai^tiachment  upon  a  Prohibition,  the  Defendant  prefcribcd  that  the 

(.    o  c  s.)     Clerks  oj  Oxford  have  Privilege  to  have  the  pnncijtal  *  Hoiifes^  which  were 
wont  to  be  let  to  Clerks  before  any  other^    and  efpeciaily  whtre  Clerks  were 
abiding  before  ■■,  and  after  Iflue  was  taken,  it  Clerks  were  abiding  there 
at  the  Commencement  of  the  Suit,  or  not ;  and  therefore  in  a  JNJanner 
confels'd  that  this  is  a  good  Prefcription.     Qusere  ;  for  they  are  not  In- 
corporate^ nor  People  which  have  had  Continuance.     And  per  Finch,  The 
IVlerchants  of  the  Staple  have  the  like  Cuitom,  and  thofe  q{  the  King's 
Marlhalfea  and  the  King's  Juflices  i  qusere  if  the  Inns  of  Court  are  not 
in  the  like  Plight.     Br.  Prefcription,  pi.  8.  cites  40  E.  3.  16. 
Brownl.219.      ^    Treipais  &c.  for  Taking  and  Carrying  av\ay  30  Loads  of  ThornSj 
,8- gj:yj„'j' by  him  cut  down  and  lying  on  his  Land  at  C.   in  a  Place  called  the 
S.  C.  ■'(-y      Common  Wafte.     Defendant  juftihed,  That  he  was  feifed  in  Fee  of  a 
the  Name  of  Melfuage  and  three  Acres  of  Land  &c.  and  fo  prefcribes  to  cat  doimi  and 
^iT'^'d  f  "^  r^/:e  All  the  'Thorns  growing  in  the  faid  Place,  to  fpend  in  the  jaui Hafe^or' 
gjc     '  about  the  faid  Lands  as  appurtenant  thereunto.   The  Plaintiff  rc;)lied.  That 

R.  S.  Mas  feifed  in  Fee  of  the  Manor  of  C.  whereof  the  fiid  Eftate  was 
Parcel,  and  gave  him  Leave  to  take  the  Thorns.  Adjudged  that  this 
Prefcription  by  the  Defendant  excludes  the  Lord;  ib  that  ne  can  neither 
cut  or  licenfe  any  other  to  cut  Thorns.  Cro.  J.  256.  Mich.  8  Ja.  B.  K. 
Duglalfe  V.  Kendal. 


'  F^^  '  (^0     What  fhall  be  a  good  Prefcription.     I/j  RefpS  of 

the  Time. 

I.  T 515  an  action  btougljt  lii>  t\)z  l^rior  of  Coticntrp  at|am(!  fonic  of 

1  tijc  ^ca  of  CarlMticct  in  tljc  Dil!  of  Co\  entry,  ityc  tljc  fcilmo; 

of  $^crcljaiitii?c0  in  ttjPir  J;ouft0  ann  S)ljops,  in  tljc  iOm  of  t^J^ 

^arlict  l)cHi  in  l^JtiotpfijIiale  [ot  ^artct=i)0Ufp]  in  tljc  fame  =Dill* 

'^JC  C)Cfcniiant!3  fap^  Q^uod  Ranulphus  quondam  Comes  Cellrias  Do- 
minus  de  Earie-ftreet  conceffit  ^^ominibnjj  fuijS  Cc  €arMfrcct  to  Wit 
tl)C  fame  Liberties  as  lincoln  {)ati,  and  ftews  the  charter  tcftifPing 

tljc  fame,  anH  alfo  fl)CU)£i  tljc  CljattCt  ot  Confirmation  thcreot  made  by 

H.2.  3nn  fap  tftat  Bern  Comce  liabiut  r^crcatum  iOiDcm(?c.  ft 


Prelcription.  271 


$)^rctieis  ftii,  until  one  of  tljc  Octiei  icafco  it  to  JTaiiu  to  tlje  \?tm 

of  CaUeattp,  HnOC  ipft  DCftntJCUtCS  DlCUnt,  quod  ipli  &  Anteceirores 
lui  ac  t'oruin  FeoiFatores  &  eorum  Anteccllores  tcntbancur  tenerc,  _  quae 
ipli  nunc  tenent  in  Earle-ltreec,  a  tempore  quo  non  cxtat  Memoria  ac 
eciam  a  tempore  praediiSli  Comitis  &  ancecclloruin  fuorum  fempcr  huc- 
ufquc  in  Domibus  &  Seldis  fuis  in  ipfo  loco  conltruStis  Omnimoda  Mcr- 
cimonia  vendiderunt  &c.  "BUt  t\)C  DCftnUaUtS  lUCtC  iJemannCi?  lip 
tt)C  3iU(liCC0,  Si  ipli  porrexerint  prcedictas  Chartus  pro  Ticulu  aut  pro 
Evidentia  la£ti  fui  praedicli  &  ti  fe  tenere  velint  ad  Chartas  illas  pro 
Ticulo  an  ad  Conluetudinem  pr^Editlam.  Qui  dicunt  quod  protulerunt 
Chartas  illas  ad  Evidenciam  ;  anU  UpOU  ttJtEl  JitUtC  UltVj  tilUCU  lipOrt 

tije lc5refcnptton.    2C. 2.  .      ,,  ,.  r 

2.  illKBnt  of  Annuity  by  a  Prior,  if  fjC  COtltttSl  llpOU  a  PtCfCrip= 
tiOn,  it  10  50033  for  t!3C  Defendant  to  (ay  that  the  Priory  was  founded 
jince  the  Time  ot  King  Richard.     24  p.  6.  37. 

3»  3ln  an  Annuity  by  Prelcription  tl)C  Defendant  pleaded,  t{)at  (ttOvlS 
granted  upon  a  Compolition,  and  ib  he  ought  to  count  up<jn  the  Coin- 

poiition.  I5ut  tUrc  it  i6  faio  hv  Bcmon,  tbat  if  Oc  fijall  count  up^ 
on  tUiSiCainpariticin,  tDcn  it  iljall  come  m  IilTuc  iuijct!)Cf  it  m^  nuvoe 
be&5i-cCimeofQ9emor}?,  [ano]  tfjcn  it  cannot  l»c  tqcD;  Init  it  the 

Title  had  commenced  with  the  PoUeliion  lince  Time  ot  Memory,    tijlti 

niapbefenoion  bj?  tlje  Jurors  i  ann  if  tljcp  cannot  finn  it^  tljentlje 
jSJrefcnonon  10  ijaotJ.    19  ^.6*  75*  . 

4.  ^  Cl3an  ihall  not  have  any  Advantage  by  Allegation  of  a  Founda- 
tion, or  other  Matter  in  Fa£l  to  be  done  before  Time  of  Memory  i  be- 
Ciiule  this  cannot  be  tried,     i  (£♦  4-  6.  b- 

5.  So  a  £&m  fljall  not  ba^e  anp  ^ti^jantao;e  bt)  ^iicptton  of  a  Deed 
orSpeci..ky  matJC  bcfote  Ciiite  Of  a^caiorp,  bc:aure  tbis  cannot  be, 

triCD.  I  C»  4-  6.  b»  14  P*  7-  I-  of  a  Deed  ot  a  Rent-charge  whereot 
he  had  not  Seilin  within  Time  of  Memory. 

6.  So  a  ^m  fljall  not  ba\)e  an))  aauantasc  of  a  Record  before  l^^' »;'!?' 
Ciiuc  of  tpemori),  becaiifc  it  cannot  be  tnen.   As  ijc  fi^aU  not  ha\  e  ^,^.^  ;,^^^ 

Execution  of  a  Fine,    i  €♦  4.  6.  b»  ailQ  ['Ct  Qt3!n0;i)am  tljCCe  fatU,  tijut  rliey  are 

be  neucc  faiu  anj)  KccotB  oftljel^inij  before  tije  Cime  of  i%  3.  ofieidaiiom^s 

tbtSOpmiOni  for  ttjere  tuajS  ijelD  a  Divenity  between  a  Record  and  w^^h'^.^^"- 
Decds,  and  Macters  in  Faft.     19  P*  6-  75-  b*  That  he 

fliall  not  have  Advantage  either  in  one  Cafe  or  the  other.    Ibid, 

7*  W tlie  King  before  Time  of  Memory  had  made  a  Grant,  tbi0  iS 

not  of  ani)  effect  as  a  Patent  after  Cimc  of  C^emorp,  tiniefs  it  im 

been  aliovved  in  Kier  lUltOin  Q^UIIC  Of  a^eillOip.     19  IP  6.  75   b-  9  i% 

n,ii.b.  Per  Curiam,  of Conufancc of  }?{end.  2  €,  +  23-  accoro^ 
Uigliv   Co.  9-  ab.  etra*  99ar.  27.  b.  Contra  12  ix  j:  22,  b. 

Vjra  Vill  be  incorporated  bp  ICttetS  PilteUtSS  bClOrC  CiniC  of';  1*""- 
99eU;0Vp,  anb  tbOte  Franchifcs  never  [were]  uled  lince  Time  ot  Memo-  ^^^^'  p'^-^'o- 

ry,  i-'ncD Vi^e  M  tbeir  f  rancbifcs.    141;.  7- i-.   .     ^        ^      ,  vaviror 

'  o  'Sach  Things  as  do  not  ly  in  Point  ot  Prefcription,  but  ought  to  be  r^Ns,7v_>o 
creared  and  fupported  by  Charter,  and  the  Charters  thereot  were  made    ^01269. 
before  Time  of  Memory,  tljCp  atC  UOt  plCaHablC  UOr  Of  aiip  aMl,  if  ^-^'^'^--' 

tl}£v  Ija'DC  not  been  allowed  ujitbtn  ^tmc  of  $!9cniorp.   Co*  9-  Vvb. 

^tri*.  £|3aCC.  27.  b.    I  p.  7-  23.   b*  .  ]njmi,!fy 

10    'St  10  clear  enOUglj,  tbat  there  Avas  a  ccrtam  Time  which  was  the  Parties- 
called  the  Time  of  Memory  m  l^rCfCtlptlOn.    19  V*  6.  -]$■  ^Ct  JOeiO=  were  at  Ifluc 
tClU    ie4.  6.b.    9  13.7-  II-    i4lP-7.i-      ^    .     ,  ^  ,    Sion'^f 

II.  Cije  fail!  Cimc  Of  c^emori)  m  a  i3rcfcription  was  from  the -jp^,,^,,.^^^^ 

Time  cf  King  R.  i.  20  (().  6.   3-  O.    3  S?3ar.   1 19-  5-    i3  V^  4-    9-  U.  nmi  the 

CbeCinie  of  iAing  IJoljn  [isi]  UJttDm  S^cmorp.   lit.  ^.170.  3^  Phh,>iffrave 

t),  6.   36.    U»  37-  ^  ,      ^  c  u     a  Deed  te.ir- 

12.  'ce:be  ram  '^DtmC  of  ^CmOrP  was  from  the  Commencement  of  the  .     ^^^^  ^^, 
Reign  of  King  R.  i.  fOr  all  tljC  CllUC  Of  InIUS   ElCijattl  I.    m^uriUT-h.. 

"  °  tiirljm 


272  PrcTcription. 


of  Kwir  R  ,  luttljin  tUc  Cinie  of  S^cmor^  20  ix  6  3-  Per  jOciuton.  1 3  Xo.  4. 
and  the  De-  9.  In  itDijcrc  tl)c  ^emn  of  ii^tnn;  E.  i-  U)a0  aliaioeo  foe  eooo  Cule, 
y<-«</..«<a„»/,/  iinti  fa  a  i©arrant  m  Ijisi  'Cimc. 

iirtt™  1 3-  It  fCCniiS  t!jat  bp  tljC  nSarnsi  (a  tempore  cujus  Contraiii  Memo- 
ir, and  the     r''^  Hominum  non  exiltit)  prOpCClP  atlti  gfllCrallp  is  intended,  aitO  all 

PLv.tiff      '2CiniC5  iKforc  tljijs  ano  before  tijc  statute  of  liinitation  lua?  m= 

Would mt, hut  tenUCtI  i  whereot"  no  Proof  could  be  made  to  the  connarv,  either  bv 
^vUd^tT  C     'T'eltimonv  or  Evidence,  in  any  Time  beiore,  without  any  Limitation  of 

j!L'rtZ'',Jl''i Time.    34 !p»  6.  36.  b,  37-  It  fecmss  uiill probe It. 

}i:t  .rs  an  Orioiintil  Gr.wi;  and  admitted  there,  that  where  the  PreCcription  is  in  Ifliie,  \t  fuffccs  for  the 
jur'j  to  i>i<]Hire  of  the  Time  of  their  own  Memory,  iihere  7ioftieci.il  E-viiirtiie  is  to  tl e  coilr.nv.  tii:  Prefcrip- 
tlon.  pi  6    cites  *  56  H.  6.  56.  —  Jhtt  iihcre  ffccinl  E^rdoive  is  to  the  cortrary,  as  above,  there  they  outfit 

to  ivf.iire  of  theT'ime  of  King  R    I .    Ibid. .^nd  Per  Prifot  there  it  is  a  good  Flen,  that  the  Chirch  f 

ot   'xhichthe  Prior  prefribes  iv.is  ftmded  after  the  Time  of  King  R.  I.  or  after  Time  of  Memory.   Ibid.  

So,  that  it  was  founded  in  the  T'ime  of  King  John.  Ibid. But  Brook  fays,  It  fecms  that  in  thofc  Cales 

he  OKght  to  traterfe  the  Prefcriplion;  for  other-ivi/e  it  is  only  .Argument.    Ibid  So  it  feems  at  this  Day  by 

the  Statute  oj'  Limitations     7,1  H.  8    to  fay,  that  the  Church  luas  founded  within   the  60   Tears,  or   the 

like    Ibid  ■ [  ♦  It  ihould  be  54  H.  6.  5O.] \  Br,  is  i^De  que  le  per  pi.  tait.)  but  the  Year-Book  is 

as  rrar.fluted. 

14.  But  luijen  bp  tlje  Statute  of  Limitations  tijc  Seiiin  in  a  w^rit 

of  Right  was  limited  t(i  tiie  Time  of  K    i.   fO  tijat  HOIie  CUtUD  COtint 

Of  a  more  ancient  ©cifin ;  anu  t!};s  tJBrit  being  tijc  moa  Oi<5l)  i©rit 
>sm  tai^en  teuijin  tije  eciuitp  of  tye  statute  ■■>  aifo,  toat  tf)a  a  99an 
mtgbt  proVie  to  tljc  contrary  of  a  COirio;  luijereof  ttje  Ji^rtfcription 
11330  maDe,  pet  tt)i0  fljouiq  iiot  ueHrop  tije  Iprefcription  if  tlje  Proof 

was  of  a  Thing  beiore  the  faid  Time  ot  Limitation  ;  for  It  lUA£i  KcafOtT 

tbat  tije  Inquirp  in  a  prefcription  fljoiiio  be  luiiiteD  as  luell  as  in  a 
tSBrit  of  Rigljt,  bemg  niorcbafctljantljati  for  it  looufa  be  baro 
to  put  Junes  to  inquire  of  Cijiuks  fo  uiicicnt.  ^M  tijcrcfore  it  is 
fatti  in  13  ip.  4-  9-  b.  tljat  tbc  LinittCition  in  r^iit  of  Knxbt  is  too 
IcniT  Cime  for  a  jarefcription ,  ar.o  pet  tijis  luultaticia  is  not 
cljaniiTr!,  nor  can  be  ioitljoa:  Scatute. 

15-   EOt.  li^arU  4^<<£.  3-    if5»  16.   Prav    the   Commons,  bCCaUfe  all 

tljeCiii.e of  K.  I.  is  belo  for  Ctnie  of  i^cniorp,  from  lutjic!)  %mz 
no  a^an  map  Ijalie  true  Cognisance,  tljat  it  pleafc  to  limit  in  certain 

the  Time  of  Memory,  fO  tJjat  It  OOtlj  UOt  pafS  tlje  CoronatiOU  Of 

i^inn;  Ctitoarti  ©ranCfatlHr  of  our  ILom  tijc  Uinn;,  tabo  noui  is  -,  ana 

lil^c  l^ctiticn  luas  for  mijerle  Opinions  nnb  95ifcljicfs  uiijidj  bappcn'D 

46  €.  3-  JI^.  2S.  but  no  aiTeiit  to  tljcin.   Tout  tlje  Snfu-'cr  to  tlje  ftra 

}^ctition  IS,  Let  tlje  Laui  aano  as  it  Ijas  none  Ijcretofore  till  it  be 

otijeriuife  oruamen* 

16.  jt  frcms  tbat  as  tlje  ^ime  of  teuton'  in  a  prefcriptio:!  toas 

*  o.ig.  is   linutes  to  tlje  ^ime  of  H,  i.  *         a  ^cifin  \\\  a  tiBrit  of  EiiTijt 

(seionque    ^jitijnt  tljc  CQUitp  Of  tljc  g)tatute  of  !©♦  I.  fo  tijat  bp  tlje  fame  EciV 

"°-'  fon,  tlje  ^lUie  of  5@emOrp  at  tljiS  Dai)  Ihall  be  limited  to  60  Years, 

as  n  ^rit  of  Rigljt  luitljin  tlje  CquitP  of  tbe  Statute  of  52  h.  8. 
cap.  2.  for  tbis  is  uiitljm  tlje  fame  ii9ifctjicf  mentioneri  in  tlje  |3re:im= 
ble  of  tbe  Statute.  'But  I  tuell  fenoiu,  tbat  tbe  Prafticc  is  e  cetera. 

Koy  ?  S.C.       17.  ^  Vicar  endow'd  De  Minutis  Decimis  Anno  Domini   1310.    fues 

adjudg-d  —  the  Parfon  approptlatc  fOt  tljcm  ■■>  tbe  parfon  cannot  picffril-.e  iX^im-l 
^'^j;'Jf.'?'"HljiS€nt30Umient,tbo'it  mas  3-^0  Years  pait  i  for  tljc  prefcviption 
in  BR  that ouKbt  to  commcnce  fiuce  tIjc  Cntjouiment,  'diljicb  mas  fma-  tlje 
aParfoncan-Cimeof  LuiKtiUion,  SclK  i\.  I.  p*  3-3ii. 'B,E.  between  Pringe 

not  prefcribe  nii5j   Child.      !?iri)Utl2;'t!. 

againrt  the 

Compofition  of  the  Vicar  for  Thing.?  allow'd  the  Vicar  by  the  Compofition.  And  it  was  likewife  de- 
creed in  Chanoerv,  that  the  Prefcnption  was  not  lawful  againft  the  Compofition  ;  and  an  Injunction 
was  awarded  for  the  Vicar  to  flay  the  Suit  of  the  Parfon  limited  to  the  Vi'.ar  upon  the  Compofition. 
Mo.  -di.  pi.  1055.   &  7S0.  pi.  loSi.  S  C.  —  S  C.  cited  Watf  Com  p.  Inc.  Svc.  750,  751.  cap.  59. 

18.  Common  Law  admits  of  no  Prefcriptions  but  what  are  T/wt  0//;  0/ 
Miiid  8zc.  tho'  the  Spiritual  Court  allows  of  Prefcriptions  fometimes  of 


Prefcriptioii.  2  7  3 


20,  and  fometimes  of  40  Years.  Per  Hale.  Vent.  274.  Mich.  27  Car.  2. 
B.  R.  Anon. —  And  lb  at  10  Years.  3  Built.  242.  Per  Doderidge.  Mich. 
14  Juc.  in  the  Cafe  of  Harding  v.  Gofcling. 


*   (Q  )   Ho'zu    it   may   bs    r//ade.  [Affirmatively  or 

Negatively.] 


^cc  Proliibi- 
ti(ui(H)pl.3. 


ti(unH)pl.3. 

1. 1  "OEcrcnpttOn  in  in  the  Affirmative  10  gOOtI*  1 1  €♦  4.  2.  18  (£,  4.  *  N.B. There 

f-^    „     U  is  no  Letter! 

-*-       ^                                                                   .  .of(N)  (O) 

(?)  in  Roll.  — ~  I  It  ouglu  to  be  in  tlie  Affirmative  and  not  in  tlic  Negative  Br.  Prcfcription.  pi.  ;  i. 
citss  S  E.  4.  5. 

2.  a  ISCCrcriUttOlt  iu  the   Negative  merely  10  UOt  fiOOU*   1 1  €,  4.  ^'-  Prcf^rip. 

2.b,    i8C.4-     3-    ll.    S  D,6.    4.  cites  -H.  6. 

;2.   and  S  H.  6.   5. 

3.  (J PlXfCtlptiOU  in  the  Affirmative  mix'd  with  the  Negative,  where  Br.  Prefcrip- 

the  Affirmative  is  of  EH'ctl  ailt!  UiatCCtal,  IS  gOOti*      1 1  (iC,  4.  2.  b,     ^|°"-  f^y^^ 

-i.  and  S  H.  6.   ;. As  to  be  impleaded  by  Writ  and  not  by  Bill,  or  to  pay  but  a  Penny  for  ToU 

and  no  more.     Br.  Pr  efcripticn.  pi  -z.  cites  11  E.  4.  2.     Per  Littleton,  Catc.sby,  and  Bri.in. 

4.  Jt  15  ti  gOO^  PrCfCnptfOn,  that  he  and  his  Anceftors,  and  all 
thole  whofe  Ellate  he  has  til  iUClj  il  99ilUaC  have  ufed  Time  &c.  to 
buy  in  fuch  a  Market  or  Fair  &:c.  and  not  to  pay  any  Toll  i  foi.*  tljlg 

10  ji5c'A:atiVie  niit'tJ  mi)  tlje  affirmntiUij,  U3ijic(j  iilftii-uiatiDe  process 
it  to  lie  pucm  lire*  s  fp»  6.  4. 

5.  "^t  10  not  a  I'COOU  ^rCfCtiptiCJlt,  that  he  has  not  paid  Toll  Time  Br.Prefcrip- 

&  c.  for  tl3s0 10  miczW  in  tljc  Bcn;atii3C.    8 13«  6.  4.  tion.  pi  i  - . 

S.P.    Bv.i  it  fiiall  be  in  the  Affirmative  as  to  Tay,  that  he  and  his  Jnceficrs  have   been  quit  of  Toll  Time 
outofMind.    Br.  Prefcription.  pi.  76.  cites  i8  E.4.    5. 

6.  In  AlTife  the  Defendant  pleaded  Hors  dc  fon  Fee  (for  it  was  of  Rent)  By  which  ho 
and' the  Plaintiff  fatd^  that  he  and  his  Ancejtor^  and  thofc  ivhofe  EjlatelMy  that  he  ■ 
&c.  have  hcenfeifed  of  the  Rent  Tune  out  of  Mind,  and  held  no  Plea  with-  'fyl^'ff/L'j. 
cut  Deed  of  the  Convey a?ice  of  the    J^ncEfiate.     Br.  Prelcnption.    ^\.  5^- Mu-ihe aid 

cites  31  Air.  23.  hij  Jncffoyj,- 

find  thofe 
whofe  Efiate  8cc.  were  fcired  of  the  flime  Rent  as  Parcel  of  the  flime  Manor  Tims  out  of  Mind.     Ibid 

7.  The  Plaintiff  prefcrib'd,  that  he  and  his  Predeceflc^rs  have  had  a  Br.  Action 
Mill  m  D.  and  no  others  had  a  Mill  there.     Per  Prilbt ;  This  Prclcription  ^  1=  ^<'=- 
is  ///  the  Negative,  and  therefore  not  good.     But  Per  Paiton,  Prelcrip-_^  ■(^■"  ^""  ; 
iionintheJjfinnative,  and  a Ifo  in  the  Negative  is  good.,     lb  which  no 

Anfwer  was  given.    Br.  Prefcription.  pi.  24.  cites  22  H.  6.    14. 

8.  Trefpafs  upon  the  Cale_/o>-  /lopping  of  a  Se-wer,  by  which  12  Acres  Brooke  Hivs, 
of  Land  of  the  Piaintiif  are  lurrounded  in  A.  The  Defendant  frefhWd,  2tit£u!ree 
that  N.  W.  his  Lcjfor,  and  all  thofe  luhoje  Ejlate  he  has  in  a  Mill  m  J.^  have  ^-^^  iearsp,L 
ufed  to  /op  when  the  Mill  wanted  Mater,  and  to  repair  a  Biy  and  Gutter,  fc-ibes  in  hit  _ 
and  N.  W.  leafed  to  him  for  Tears  yet  continuing  &c.  by  which  he  itopped  l^^3o>;  nnd 
and  repaired  the  Sewer  &c.  and  the  other  fud,  that  De  fon  Tort  Derntfne,  '^^^^^ 
and  traversed  the  Prefcription  to  flop.  Br.  Prefcription.  pi.  44.  cites  i9  Jthe.Umi 
H.  6.    32.  and  jnfti/ies 

in  kimjelf,' 
and  doe?  not  prcfcribe  th.tt  the  Oimers  and  their  Lejfces  may  cleanfe  the  Gutter,  and  yet  no  Challenge 
taken  to  it.     Ibid. 

Z  z,  z  ^.  U 


274  Prcfcription. 


9.  In  the  Cifjqite  Ports  they  prcfcribej  that  Writ  of  the  King  riocs  not  run 
there,  and  well,  and  yet  it  is  ///  the  Negative ;,  the  Reafon  Iccms  to  be, 
becaufe  it  is  a  Negative  with  an  Affirmative.  Br.  Prefcription.  pi.  65. 
cites  2  E.  4.   18. 

10.  In  Trefpafs  the  BeikndAntjuJli/yd  fir  Damage  feafa/it ;  the  Plain- 
tiff [aid J  that  he  had  certain  Land  in  D.  and  that  D.  and  S.  adjoin,  and 
that  ail  the  Inhabitants  of  the  Vills  aforefaid  have  tifed  to  interconiinon  lecaiife 
of  Vicinage  Tune  out  of  Mind.  Per  Choke,  You  ought  to  allege  the 
Prefcription  /'//  the  'Tenant  of  theFranktenenient;ihr  Tenant  for  Term  of  /ears, 
fior  at  Will,  cannot  prelcribe  or  allege  Corporation  by  Name  of  Inhabi- 
tants ;  But  Per  Danby  and  Littleton,  if  the  Ulage  be  as  above,  this  is 
good  Pleading ;  Brook  fays,  JJhiare,  lor  the  Law  feenis  to  be  with 
Choke.     £r.  Prefcription.  pi.  69.   cites  7  E.  4.  26. 

11.  Prefcription  by  a  .^//e  i7?rt/^  is  not  retrained  by  the  Statute  of 
Limitation.  32  H.  8.  2.     Br.  Led.  Stat;  Limit.  35,  40. 

12.  Where  ^  Charge  is  on  the  Delendant  of  Coninion  Plight,  which  by 
Law  he  is  Subject  to,  the  Plaintiff  need  not  preicribe  in  his  Declaration. 
I  Salk.  22.  Mich.  3  Ann,   B.  R..  Tenant  v.  Golding. 


(R)     Liberties.      What  Liberties   a  Man  may   have  hj 

Prejcription. 


-S' 


lUCH  Franchifes  anU  EibeCtlCSl,  Avhich  cannot  be  feifed  as  for- 
_    feited  before  the  Caufe  of  Forfeiture  appears  ot  Record,  CtlllttOt 

be  claimti  bp  l^vefcrtptioiii  bccauft  prefcription  lieing  but  an  iifasc 
en  paisi,  cannot  ejrtenn  to  fnclj  Cijuiiygi  luijicfj  cannot  be  feu>D  ot 
ijau  U3itt)cut  Scatter  ot  Eecorp»  Co.  ILitt*  1 14.  €(i*  5.  Foxiey  109*  b, 

Bi-.Prefcrip-  2,  As  a  {^atl  CannOt  ijaUC  «:?00tlS  anD  Chattels  of  Traitors,  *  Fe- 
tion.  pi  60    Ions,  Felons  of  themfelves,    or  Fugitives.     CO*  ILttt*  114,    €0*  5, 

2o'-l  'ii  4'  ^'''''''■>'  ^°9»  b»   Co,  9*  ^bb»  a)tra.  C^ar*  24*  b. 

cites   5  H.  4. 

118 — 9  Rep  27.  b.  Abb.  Stra.    Marcella. — *  S.  P.  without  JljenvingCharter  hefore  Time  of  Memory,  and 

Jllo^-ance  in  Eyre  afterl'ime  of  Memory.     Br.  Prefcription.   pi.  56.   cites  i  H.  7    25. Br.  Corone.   pi. 

128.  cites  S  C. But  Per  Knivet  Ch.  J.  a  Man  cannot  prefcribe  in  Bona  Fetonum  Qp Fttgiiivorum  ;  for 

this  belongs  to  the  King'.s  Crown,  znd  cannot  p/tfi  hit  by  Grant.     Br  Prefcripaion.  pi.  10.  cites  46  E.  5. 

1(5. J».  P.   Br.  Ellray.  pi.  2.  cites  44  E.  5.  19. S.  P.  And  this  ieenis  to  be  of  tiie  proper  Goods 

of  the  Felon,  but  a  Man  may  prefcribe  in  Goods  jiolen  ami  waived  ;  tor  a   Felon  has  no  Property.     Br. 

Eftray.  pi.  13.  cites  46  E  5.  16  Tho'  a   Man  can't  prefcribe  in  the  faid  Franchife  to  have  L'oni  S* 

Gatalla  Proditorum,  Felonum  &c.  yet  may  they  or  the  like  be  hadOb!itji^i:ely,  or  by  a  Mean  by  Prefcrip- 
tion ;  for  a  County  Palatine  may  be  claimed  by  Prefcription,  and  by  realon  thereof  to  haye  Bona  &  Ca- 
talla  Proditorum,  Felonum  &c.     Co.  Liti.  114.  b. 

s.p.  Br  Co-  3^  So  a  C?9an  cannot  batjc  ^0050  anD  Cbattcl^  of  thofe  who  are 
dt"s  f H^v  P""^  *"  Exigent  bj?  ^^rercrIptlon♦   Co,  litt.  i  h* 

22,  2;,  25.  —  Goods  of  Outlaws  cannot  be  forfeited  by  Prefcription,  becaufe  they  arc  not  forCiccd  'till 
the  Outlawry  appears  of  Record.     Co.  Litt.  2S8.  b. 

4,  So  a  ^an  cannot  babe  Deodands  bp  l?tefcripti'ou»   Co*  litt, 
114*  ^ 

s.  P.  without    ^^  So  a  {©an  cannot  Ijatjc  Conufance  of  Pieas  bj?  li?refcrtption,  €o. 

f;:t;fr?""^itt,  114. 

Time  of  Memory,  and  .'Allowance  in  Eyre  afterTime  of  Memory.  Br.  Prefcription.  pi.  5<5.  cites  I  H.  7- i;- 
Br.  Corone.  pi.  liS.  cires  S.  C. S.  P.  But  a  Man  may  prefcribe  T'enere  Placita.  Br.  Prefcrip- 
tion  pi.  59.  cites  9  H. :.  11. S.P.  by  Holt  Ch.  J.    For  the  having  Cbnufance  of  Pleas  excludes 

other  Jurildiftions.    Comb.  282.  Trin.  6  W.  &  M.  BR.  in  the  Cafe  of  Millard  v.  Cole. But  as 

to  Conufance  of  Picas  the  King  himfelf  cannot  have  it  but  by  Matter  of  Record,  and  therefore  a  com- 
mon Perfon  cannot  be  in  a  bettd"  Condition.    Br.  Prefcription.  pi.  64.  cites  5  H  4.  118.    [It   fhould  be 


Prelcription.  275 

6,  So  a  9dAn  cannot  prcrcnbC  to  make  a  Corporation.      CO*  lltt,  T'lc  Citizens 

. .  ,     fi  or  London 

'^'^^  "♦  prclcrib-d 

in  Ufage,  that  Guild  or  Fraternity  may  make  another  Gtiild  and  Fraternity  ;  and  the  Cuftoin  was  condemn'd 
by  Award,  for  none  may  do  it  hut  the  Kin^,  or  he  i:;ho  hat  the  King's  Charter  to  do  it  l>y  exprefs  If'ords.  Br. 
Culloms.  pi.  40.  cites  49  All'  S. Br.  Prelcription.   pi.  55.  cites  S.  C. 

7*  So  a  09au  cannot  Ija^jc  a  Sana^ary  bp  J^rcfcnption*   Co.  li'tt.  s-  p  «v7;<,«« 

H4.    Ij^  peuingChar- 

~  ter  ct  the 

Kin^  before  Time  of  Memory,  and  JUownnce  in  Eyre  after  Time  of  Memory.     Br  Prefcription.  pi.  56.  cites 

1  H.  7.  29. Br.Corone.  pi.  128.  cites  S.C Br.  SanCluary.  pi  i  5.  cites  S.C. S.  P.  Br 

Sanctuary,  pi.  S.  cites  I  H.  7 .  6. S.  P.  Hawk.  PI,  C.  596.  S.  5. S.  P.  But  if  lie  his  ancient 

C7>4>-<ci- .i?;iY ^yj^e,  he  may  prcfcribe.  Br.  Prefcription.  pi.  Os.  cites  2  E. 4.  iS,  Per  Choke.  But  Br. 
cites  fol.  25 .  where  the  Opinion  was,  That  it  was  not  {^ood,  the'  a  Grant  of  the  King,  before  Memory 
wasfhewnand  Ufage  after;  becaufe  it  is  againft  Common  Right,  and  cannot  have  a  lawful  Bcginnin", 

8.  So  IjC  cannot  prCfCVlbe  to  make  a  Coroner.     C0»  Lltt*  1 14*  Ij,      Serjeant 

Hawkins 
fays,  It  is  clearly  fuppofed  by  the  Statute  of  2S  E.  9.  6.  that  not  only  the  King  but  alfo  orlier  Lords 
have  the  Franchi!e  of  making  Coroners  ;  From  whence  it  fecms  reafonable  to  infer.  That  the  King 
may  lawfully  claim  fuch  Franchife  by  Prefcription,  and  that  other  Lords  may  claim  it  by  Grant  from 
the  Crown  ;  but  it  is  a  Privilege  of  fo  high  a  Nature,  that  no  Subj;;ct  can  w  ell  intitle  himfclf  to  it  by 
Prefcription  only.     2  Hawk.  PLC.  44.  cap.  9.  S  11. 

9*  So  a  $|3an  cannot  prefer ibC  to  make  Confervators  of  the  Peace.  Serje.nnt 

Co^Litt.  114*  b*  "vr'hT 


eas, 
e 


quelHon'd  by  fome.  Whether  fuch  Power  csn  be  claimed  by  Ufage  ?  Yet  if  the  Pou-er  of  h(,rding  Plea' 
and  even  Courts  of  Record,  which  are  of  fo  high  a  Nature,  and  imply  a  Power  of  kcepinj?  the  Pe.ac_ 
within  their  own  Precintts,  may  be  claim'd  by  Ufage,  as  it  fecms  to  be  cenain  that  tiiey  may  ;  it  feems 
ftrange,  that  the  bare  Authority  of  keeping  the  Peace  in  a  certain  Dilfritt  may  not  as  well  be  claimed 
by  fuch  Ufage.     2  Hawk.  PLC.  54.  cap.  S.  S.    10. 

10.  In  Trefpafs,  the  Mc^yor  of  L.jiijlified  hccaufe  it  had  been  iifcd  Time 
out  of  Mind,  that  the  A/ayors  have  been  Confervators  of  the  Peace,  and  ha\e 
ufed,  for.dffrays  dene  iu  theirPrefence^  to  commit  the  Offenders  to  Pnfon  till 
they  have  found  Surety  of  the  Peace.  Brian  faid.  You  have  no  fuch  Power, 
but  to  commit  him  to  Ward  till  he  has  made  Fine  i  and  by  him  and  Pi- 
got,  The  Power  of  the  Mayor  cannot  reji  upon  the  Ufage.  Br.  Prefcrip- 
tion, pi.  79.  cites  21  E.  4.  67. 

11.  A  Man  can't  prefcribe  to  levy  Fines  in  his  Court  of  Lands  within 
his  Manor,  becaufe  Fine  is  a  Record  which  no  Man  iliall  have  by  Pre- 
fcription, and  the  Ktn?  upon  every  Concord  is  Donor,  which  a  Man  can't 
be  by  Prefcription.     Denih.  R.  of  Fines  3. 

12.  It  was  held  by  Hale  Ch  B.  that  Return  of  Writs  may  be  claimed  ButDode- 
bv  Prefcription,  as  appertaining  to  a  Afanor.     And  fo  it  appears  in  ''i^ge  Ar- 
*'Quo  Warranto  2.  in  42  Eliz.  where  the  Law  is  admitted  to  be  fo,  ^/"^".'l*'  '''.'*^' 
tho'  the  Prefcription  there  was  not  well  laid  to  inticle  the  Party  to  k;but  Brevium"'" 
?nore  efpecially  may  it  be  claimed  as  appertaining  to  an  Honour,  as  it  was  could  not  be 
held  in  19  Jac.  in  l:)0tuarri"s  Cafe,  in  the  Cafe  of  the  li)0naur  Ot'CUnii  ^'*'"^d >y 
for  Honours  have  more  large  Incidents  than  Manors  have.     Hard.  423.  P''^*cnpnoti 
Trin.   17  Car.  2.  in  Scacc.  Countefs  of  Pembroke  v.  The  Earl  of  Bur-  Ci-own.^Mo. 
lington.                                                                                                             6-0.  pi  91 S. 

Mich  4;  8c 
44  Eli?..  B  R.  in  Cornwall's  Cafe  — *  S.  C.  Cited  per  Hale  Ch.  B.  Vent.  405.  as  the  (jf  arl  of  ^linU.  S* 
burp's  Cafe;  and  fav.,  you  will  find  the  Pleadings  in  the  New  Entries  Quo  Warranto,  pi.  2.  Mich  41 
&  42  Eliz.  B.  R. 


(S.)     What  Th'ijigs  a  Man  may  have  by  Prefcription. 
I*  A  ^3ai3  map l)alje  Treafure  Trove bv  l-JrcfCttptlOlU  CO.  [ 1 14, 1),] 

z.  So 


276  Prefcription. 


S. p.  Br  2    So  ijC  jnaP  \yCCQt  Waifs  and  ElUajs  b)?  [cJCCfCViptlOU,     CO*  MtU 

Eftray  plz.   „       jj     ^rrQ^^\  Jfo^Jcj)  109.  b, 

cites  44  Ji.  ^.        ~  '- 

19. — S.  P.  iir.  Prefcription,  pi.  56.  cites  i  H.  7.  29 — Br.  Coronc,  pi.  128  cites  S.C Br.  Prefcrip- 
tion, pi.  10  ci:es46  E.  ;.  iiS.— pi.  60   cites*;   H.  7.  20. And  a  M;in  may  prcicribe  in  Waif /i/,ti  /^eel, 

liithout  f>!c--ii-i>iz  ci  .-ilU'iuame  within  Time  of  Memory,  becaufc  it  llands  with  Common  Right.  Br.  Ibid. 
pi.  65   cites  2  E  4.  23. 

Br.Prefcrip-      3.  So  \)Z  UlilU  Ijfl^JC  NWcck  of  the  Sea  l)V  15r£rcripti0n»     C0»  Ll'tt. 

t.on,  pl.14.    ii^.    li^ 

cites  1 1  H.  4.        ^ 

15  S.  P.-pi.6o  cites  9  H.  T.  20.  S.  P.— S.  P  Br  Ibid  pi.  56  cites  i  H.  7.  2;  -Ibid —Br  Corone,  pi.  120. 

cites  S.  C. — S.  P.  Per  Thirn;  but  per  Hank,  he  ought  to  have  Charter  thereof,  or  Allowance  in  Eyr;. 

Quzre  of  Allowance  ,  for  per  Thirn,  Several  Franchifes  are  enjoyed  in  England  without  Allowance  in 

Eyre.    Br.  Prelcription,  pi.  83.    cites  iiH.  4  id. 

See  Ok.)       4.  So  \)t  map  hold  Pleas  D?  prefcnptiom   Go,  Lit>  1 14.  b. 

pi.  5. 

And  a  Man        ^    So  {]£  UmP  Ija'UC  H  Court  Leet  or  Hundred  lip  BrCfCriptiOlt*    CO, 

may  pre-  ?f  iff    ,  t  ,     h      "  .   ir-  r 

fcribc  todi-  *^'t*'*  ^H-   "J* 

y?//i-A  a  Leet.  See  Br.  Attion  fur  Cafe,  pi.  7  5.  cites  3S  H.  6.  16. 

6.  So  5jC  map  IjaiJC  Infangthief  and  Outlangthief  hV  l!>ttkXi\itm. 

Co,  litt,  114- b* 

b7  Prefcription,  pi   10.  cites  46  E.  3.  i(5. 

*  A  Man  may      7.    So  IjC  ma))  fjatJC  tl  *  Park  or  Warren  bp  PrcfCriptlOin     CO. 

prefcribe        yttlH-l'* 

that  he  and  ^ 

all  thofe  whofe  El^ate  he  has  in  the  M.)nor  of  D.  have  had  Park  hi  the  fame  Manor  as  appendant  &c.  and 

cood.     Br.  Prefcription,  pi.  5-.  cites  Itin.  Not.  5  £.  3. Br.  Prelcription,  pi.  iSS.  S.  P. 

s.  P.  -  Rep.     8.  So  \)z  map  Ijanc  Rovai  Fiih  bP  prefcriptton,  as  \\^haies,  Stur- 

iS.bTrin    p-eon&c.  Ca,  Utt,  114.   b* 

*  -»  Fin   in 

the  Cafe  of  Swans,  cires  39  £■  ?•  ?9-- --^  Man  may  allege  a  Pi/chary  to  he  appendant  to  Honfe  and  Land, 

and  may  prefcribe  in  it  alfo.    Br.  Prefcription,  pi.  66.  cites  4  E.  4.  29. 

9.  So  \)Z  map  Ija^JC  Fairs  and  Markets  bp  PrCfCriptiOn,     (HH.  ll'tt* 

114.  b* 

10.  so  Ijc  map  Ijaiie  tljc  Cuftody  of  a  Gaol  bp  prefcription*   €0. 
Ittt,  114.  b* 

Frank-  n.  g;0  IjC  mav  1)3^^  fl  Frankfoldage  bp  l^rcfCriptiOlt*     CO.  HxtU 

wL'  to  iome  Land,  and  a  Man  may  prefcribe  that  he  and  his  Anccllors  Time  out  of  Mind  have  had 
Frankfoldaee  of  the  Beads  of  his  Tenants  inC.  and  his  Termor  for  Years  need  i.ot  jheiu  Deed,  for  he  does 
not  claim  but  a  Chatile.     Per  Brian  and  Townfend.     Br.  Prefcription,  pi.  105.  cites  i  H.  7.  24. 

In  Trei'pafs  Defendant  juftified  under  a  Prefcription,  that  the  Lcrds  cf  the  Manor  of  H.  have,  and  al- 
■wavsufed  to  haz'e  Free-foldafe  thrciighoiit  the  Fill  of  H.  and  to  have  the  Peniiing  of  the  Sheep  ;  fo  that  the 
J'ilt  of  f-I  ou^ht  not  to  have  Free-foldage  '-without  Con/eiit  of  the  Lord;  and  that  if  any  levied  a  Fold  without 
fucli  Confcnt,  the  Lord  had  us'd  to" abate  it.  It  was  urg'd  that  this  Prefcription  is  void,  being  againll 
Common  Ri"-'ht,  which  gives  every  ore  Foldage  in  his  own  Land.  Sed  non  allocatur  ;  for  every  Pre- 
frriotion  is  a^'ainit  Common  Right.'S  Rep.  125.  cites  8  E.  ;.  37.  a. b.  Jeftery  at  Hay's  Cafe.--and  cites 
■^E  "  ■>  a.  %hnde  Sedgeford's  Cafe  S.  P.—S.  C.  cited  2  Brownl.  2S7. 2  BuUh  195. The  Re- 
porter o'bferves  upon  this'Cafe,  that  tho"  Foldage  of  Sheep  is  for  the  Msintenance  of  Agriculture  ( which 
Is  fo  much  fivourcd  in 'Law)  vet  by  Cullom  one  may  be  barr'd  of  it  upon  his  own  Land,  and  he  of  whosn 
the  Land  is  holden  may  have  it.  S  Rep.  125.  b. 

„   „     .      I  ..        _     _L-._a..  J  .u„.  .1,;..  P,.»f;-,.ii>ti/- 


firains  a  rartktdar  Proft  only. 


"     12.  In  x\ffife  o^Reut  the  AlFife  found  that  the  Plaintiff,  and  thofe  whofe 
Eilate  he  has  in  the  Rent,  were  thereof  feifed  Time  out  of  Mind,   and 

the 


Prefcription.  277 

the  Flaincitt"  Seis'd  and  DilU'is'd,  and  Recover'd;  and  lb  note  Rent  re- 
cover'd  by  Prefcription.      Br  Prefcription,  pi.  46.  cites  13  Alf.  4. 

13.  The  Detendant  prefcribed  in  loll-tho-rongh  ;  Thorp,  Jultice,  fiid. 
This  is  to  go  through  the  Highway,  which  every  one  may  lawfully 
do,  and  therefore  tt  is  a  I'oid  Prefcription  ;  but  a  Man  may  prelcribe  in 
T'o/I-tra-verfc  ;  For  this  is  to  pafs  over  my  Land  ;  Note  the  Diverlity  i 
For  none  denied  it,  and  Ifiue  was  taken  that  it  was  not  a  High  Street.  Br. 
Prefcription,  pi.  88.  cites  22  AH".  58. 

14.  If  a. Man  be  impleaded  within  the  Precinft  of  the  Monailerv  oi' So  of  the 
VV'elbninller,  of  Land  in  London,  he  may  fay,  that  Time  out  ol'  Alind  '-'"■'/'"^  ''"'''^ ' 
Lands  in  Lo.idon  have  been  impleaded  m  London  in  the  Hit  (tings  be 'ore  the  'j^iji-^ham 
Mayor  8i.c.  Per  Laicon  ^    Quod  Danby   conceilit.  Br.  Prelcription,  :^\.  the  Jaineln 

65.  cites  2  E.  4.    18.  Chejtri'  /ijid 

li\-,ks.    Br. 
PicTcrij  tion,  pi.  65.  cites  2  £.  4.  i3. 

15.  Trefpafs  of  Sheep  taken,  the  Defendant  faid,  T'hat  the  Land  -where 
the  Trefpafs  is  Jiippofed  is  His  ir'ranktenement^  where  he  has  Fu/dage,  and  that 
he  and  all  thofe  whufe  E/late  be  has  have  iifed  that  if  any  depajliire  his 
Sheep  with  the  Sheep  oj  the  Defendant  in  the  D  ?j)'  that  the  Defendant  pall 
have  them  in  the  Ni^ht  for  their  Dang,  for  their  Pajftire  in  the  Day,  by 
which  he  took  and  tolded  them  in  tlie  Night  becaule  they  pallured  with 
his  Sheep  the  Day  before,  and  in  the  Morning  he  put  them  out  again  j 
and  a  good  Prefcription,  per  Fairfax  and  Tremail  ;  For  it  may  have  hrju- 
fill  Commencement,  and  the  Plaintiff  has  J&uidpro  ^10,  fcilicet,  the  Pajtiire 
for  the  Dung.  Br.  Prefcription,  pi.  57.  cites  5  H.  7.  9. 

16.  In  a  Leet  the  Lord  may  prelcribe  to  have  of  every  one,  ivho  makes  ^-  ?■  Ri'-P'^- 
an  Affray  or  Bloodjhed,  20  r.  and  may  prelcribe  to  dijlrain  for  it,  and  fell  ,06^ cue,;  ^  i 
the  i3iftrersj  For  this  is  the  Court  of  the  King,  and  he  deri^es  his  In-  h.  -.  n  14. 
tereft  Irom  the  King.  Br.  Prelcription,  pi.  40.  cites  21  H.  7.  40. 

17.  There  cannot  be  a  Prefcription  to  have  Omnia  Bona  k3  Cata/li 
fortsfada  within  &c.  Cro.  E.  560.  Pafch.  39  Eliz.  B.  R..  in  Cafe  of  tne 
Earl  of  Pembroke  v.  Berkley. 

1 8.  I'o  have  Pajliirage  for  t-av  Horfes  in  a  Aleadoiv  of  1000  Acres  till  the 
Grafs  is  viewed  was  held  well  enough;  For  being  in  fo  great  a  Qiianti- 
ty  of  Land  cannot  defoul  or  debruiie  the  Giafs  fo,  but  that  the  Hay 
mav  well  be  made  thereof  Cro.  J.  27.  Pafch.  2.  Jac.  B.  R.  Thornell  v. 
Laifels. 

19.  A  Man  cannot  prelcribe  to  have  Fines  pro  Licentia  Oincordandr,  bc- 
caufe  they   are  Prerogatives  of  the  Crown,  and  an  ancient  Flower  of  it. 

Ar^.  Lat.  46,47.  Trin.  2  Car.  in  Sir  Edmond  Bacon's  Cife.  Cites 

Glanvil  7.  cap.   i.  &  D.  202. 

20.  For  Alattcrs  of  Intereji  it  is  a  Rule,  that  nothing  may  be  prefcrihed 
for^  that  cannot  at  this  Day  be  raifed  by  Grant  ;  Per  Sir  I^'rancis  North. 
Arg.  Vent.    3  87.  Potter  v.  North. 

21.  Prefcription  ?(;  have  all  the  Loppings  o/"  all  Trees  called /"o/At/v/j-  in 
fuch  a  Place  leems  good.  Per  Raymond  Ch.  J.  Gibb.  87.  Trin.  2  &  3 
Geo.  2.  B,  R.  Dickins  v.  Hampllead. 


(T)  Dcjlnioiion.  What  may  deftroy  it. 


tlje  i^jeignion).  \d,  38  CU  13*  E.  bCtlUCCU  Rn/hy  and  Conesby,  peu  CU- 

tiam  upon  CXiitsencc  at  QSar* 

4  A  2.  So 


27B     Prefcription. 


fbis  s  c'' .  ^;  ^"  '^  Felice kn-  Lite  Of  fudj  a  Q9anor  grants  a  Icafc  for  ^enrs 

toljiiii  in  Uc\3craon  tgr  tljc  Caiife  aforefaiD.  \^,  38  kl  'B  n  Si 

mzm  Rnjiey  ami  Coriesby^  pcr  Curiam  upoii  einDencc. 

3.  So  of  Tenant  in  Tail  Of  fltCl)  i^atlOr,  P*  sS  ^£K  03.  E.  pCt   Ctt- 
4»  So  If  Baron  feifed  in  Right  of  his  Feme  of  a  Copyhold  iMlno^ 

Icaics  a  CoppijoIQ  for  i^cars  bp  3^iilicnturc ,  'Cljts  fijaa  not'  uc 
Urup  ttjc  CoppDolD  after  ttje  Deattj  of  tl)c  l3aron  a^  ffte" /en^ 

Curiam  upon  euiDena  at  Q:5ar.  ■^' *^^" 

-,-   h'^°aJ'  u  ^^¥  ^  ^""V  ^y  ^^^i;{'P^'""  be  granted  and  confirnied  bv  the  Kin<^ 

fn  in  o.-     ,^y ''^ir;^^/,',  ^'^i'""'':  '^'J's  Does  not  Dcurop  tf)e  i^ixrcripnon ;  'But 
brought  up-  toe  mi\t  ottljc  Court  map  be  Dp  l^reanpijoii  ae  before.   ®,  10  ra 

ona]^,dg-    %.  H*  Uttmm  Goodjofi  a;ui  _Diij/iu/ii.     5iujU0aXO. 

mcnt  ill  u 

P'JiA^  Py^.P"^^^'^';'  ■•"^^.f^^'^E^'-f,^''^?'-.^'^  «as  in  the  Stile  of  the  Court,  which  mentioned  it  to 
be  held  by  Cuftoni,  and  by  Charter  oi  the  King  granted  and  conhnned  &c.  which  wa^  urged  to  b^ 
repugnant;  For  that  the  Charter  determine,  the  Prefcription;  fed  non  allocacur,  For  thev  niav  u^ 
then  Charters  either  as  Conhrnunons  or  as  Grants,  or  may  claun  tho'e  Liberties  by  Prefcription  no 
withftanding  (uch  Charters.  Kn,  as  ^Ien■,•l^g  laid,  Every  Corporation  ulcs  in  every  Kirg-sTimetn 
take  a  new  Con h, -mat ion  of  their  Liberties,  or  otherwifc  they  cught  to  plead  upon  a  Ouo  War  r  m 
brought  for  the  uhng  their  Liberties,  or  m  £yre,  Allowai.ce  Of  them,  tlfe  they  are  Mt  iuftiHable 
Mo  S-,0.  pi   .  1 .6   S  C    and  the  Court  held,  that  the  Prefcription  remains,^nlefs  ?   Tlt,^; 

ty  tie  Charier. S.  C.  2  BuKt.  21.  and  there  24.   per  Williams  I     If  the  Charter  be     t 

to  the  Prefcription,  it  fhali  be  good  by  «ay  of  Confirmation.  And  bf  Crook  I.  As  to  the  holdTn'e  the 
CourtbyPreflription  and  by  Charter,  U  may  be  good  if  it  be  only  by  way  of  (Confirmation.  Andfsid 
2, .  S  P  hut  If  the  Style  had  been  with  a  (V  el  J  vu.  by  PrelL-vfj  tion  (or)  by  Charter,  this  had  been 
clearly  vo.d^  But  where  the  Charter  ,s  j«  Jugr,.enfat,o.  of  the  G.Jhm  by  Jay  of  Mdn^cn  this  '  .o!d 
and  may  well  be  as  a  Grant  and  Conhrniation,  viz.  a  good  Grant  to  Irold  as  beLe,  with  an  AdduLn 
thereunto  as  in  the  Charter  isexprefled,  and  in  this  Planner  the  Charter,  Cuftom.' and  P.^ltip  o" 
n,ay  „ell  (ar.dtogether.——S  P.  agreed  by  the  Court  in  a  Prefcription  for  Common  of  tXv' 
JMo.  biS.  pi.  11 07.  Hill.  9  Jac.  in  the  Star  Chamber,  Crew  v.  Vernon  uruary. 

The  king  by  hi,  Charter  e,m,ot  0^ ft  the  <o,v,non  People  of  their  Right  of  hherit^rce  r^-hich  they  ha-.e  in  the 

Cormnor,  L-.VJ.  Br.  Prefcription,  pi.  S2.  cites  8  H.  4.  19.  per  Gafcoign. Js  where  the    f/Iv  T     j 

B^^es  of  0.forA  J;:-^/  Time  out  of  Mind  .  A...  L«/.,«  l^fffe  ..'.-/rJ  TJ'^'  ^TpiZ 

nil       rt     :'!'^Ji      f  r^^       P"\'A""\J'f  "^''^  "''  AiK^gr.^mto  them  dm./ Je  of  Pkash 
Charter    this   is  void  for  the  Caueaforefaid.     Ibid^^ j„d  h  «  a,  laid,  That  becauie  they  /«  Gm 

flea  by  fi  r>t  .fR:ght  by  lhe,r  Cfage^ -S.P.  that  if  a  Man  has  £ii/r/;„  by' Prefcriptior    f  /  J"  , 

akes  thereof  GV.«.y,;.  ki„g  hPf^'",  this  fLall  determine  the  Prcicription  ;  For  \\^  in/ft'irie 
termine  Contract  and  Matters  in  Fade.  Br.  Prefcription,  pi.  102.  cites  55  H.  8.^_S  P  6r  £e^  L  - 
Limit.  59. S.  P.  Palm.  494.  ''  •  a  •  ur.  i^e^c.  at.-.i. 

Action  againft  an  Abbot,  where  the  Jhhot  And  his  Predecejfcrs  Time  out  of  Mind  ha-e  t.fed  fn  ft„^  . 
ChafLun  n,theCh,nchof  J.N.  and  after  by  Deed  n.dented  bet  Jen  them  it  -^-as  rcciterr^re  itiar/els 
between  them,  Jor  the  ti.d.„g  oftheJa,dChaplan.,  and  that  hecaufe  the  .Mot  hrj  .fed  as£i^21£ 
^ndCovent  granted  that  they  r^-c.ldfnd  a  Prief  &c.  and  fo>  not  doing  it  the  Attion  was  brouehtard 
made  Title  in  the  Count  upon  the  Prelcr.p.ion  ;  per  Frowick  Ch  J.  and  FiJlier,  and  Vav  for  I's"  the 
Prefcription  remains,  becauie  the  Deed  is, „  Jffir.^ation  of  the  PrcJcr,pt,or.,  .-.nd  of  thefaZtLg^^ 
tZ.TTT'r'  '::^'^'^'"^  '■^^",«  thePrefcnption,  fo  that  it  app^rs  ^hat,;.//.,.^/^^  S^,'"': 
prform  the  Prcfcr,p,o„    and  not  to  tale  aivay  the  Prefcription      Br,  Prefcription,  pi.  .  5  cites  - 1  H   -    / 

Kiiwio^^i;::- "'"  '•  c.-— -p^;-  .494.  cites  s,  c  — G.^y/;r4  L^'does  Lt  d;;;rmre 

pSjof  itoV  h^  k"^''"  ""V  P[^''l'P"°"j  '^"d  y«  if  A.  has  lolfCommon  &c.  and  takes  GrTb. 
b  AW  '  V^  I  P*^,'-  u  °[  ^^l  °r %  ^Q?'u  •  "^'^  determines  the  Prefcription  by  Ertoppel.  D  1 5? 
b.  JVlaig  pi.  15.  cites  Palch.  5S  Eliz.  Q  B.  Sheldon  v.  Hodges.  -And  Br.  N  C.  pi.  206.   21  H.7.  5.  ' 

Marg'^pi  ^i     ^♦.  ^  f  itjc  mm  bp  Prefcription  cannot  be  Ueffropen  by  inter- 

cites  28  Air.   i'"P"on  ot  the  FoUeliion  lor  10  or  20  Years.    CO.l  W.  114.  b. 
pI-4-  , 

7-  But  Unity  of  PoffelTion  of  as  high   and  perdurable  Eftate  of  the 
ifting  claimed,  and  ol   the  Land  out  of  which  it  ijS  ClaimcS  bP  Bre- 

Cofiitt*  m"  ^^'^^^-  tije  prefcription  iai5ecmi(€  it  i,gm  toe  iliffOt. 

s.  Jn 


Prefer  iption.  279 


8.  yii  v\'rit  oi:  Mcfne,  if  upott  jOiic  )0inc5  upon  tljE  aciiuimi, 

CimC  cut  of  fT^ftlD  U'  the  Jury  find  that  the  GraiuUathcr  olthe  Fiain- 
tittvvas  iiiteortcti  by  one  Agnes,  and  that  Agnes  and  her  Ancellors  were 
acquitted  by  the  Anceltors  of  the  Delendanr,  Time  out  of  Mind,  but  no 
Acquittal  had  been  alter  this,    J)Ct  tijC  ISlatUtUT  (!)all  !jal)e  lUOttUlCnt 

upon  tW  J:>crotrt,  bccaufc  tljc  Citlc  of  acquittall  linng  once  wHtn 
bpl^reicription,  cannot  lie  tafecn  mtjap  bv  n  tortious  ceiier  of  late  lime. 
15.  C*  i,  iUDgmnm  13?*  14.  ^*  ^.  ibibem  155.  Co.  litt.  1 14.  b, 
9*  Jf  a  ^an,  anD  all  tljofe  tttiofc  €ftate  $c.  ba^c  pain  a  Modus 

Deciniandini  llCU  OfCettaUl  dti)C0,  and  alter  by  20  Ycirs  lalt  pail:  he 
pavs  thofe  Tithes  in  Kindj    VCt  tljlg  50C5S  UOt    tlCftrOP  tljC  PrCfCttp^ 

tion ;  iFor  it  iis  not  anp  ilBawer  of  tbe  prercrlption  ;  anH  nutuittt> 
ffanBtnu  tijc  li)a»nnent  ofCitfjes  m  l^inD  for  tfjijs  Cnnc,  pet  tbc  l-Drc^ 
fcnption  iontiniics  in  TaiTlji;.  ei9icl).  4s,  44*  ^l  'B.  JX.  bctiurat  Ndtv- 
eii  i^iamtiff,  ann  Hich,  bicav  of  (EDmonton,  nDjuogeu  \\\  l^roljibi» 
tiom  Co.  ilitt.  114- 1". 

10.  3f  a  C?3iin  Ijas  OaH  a  Common  by  Prefcription,  and  takes  a  Leafe  And  when  a 
of  the  Land,  in  which  It  ijj  tO  bC  tafeCU,  for  twenty  Years,  bp  VUljtCl)  tljC  Prcfciiption 

Cotnnion  *  is  fufpenticri,  pet  after  tlje  treats  enoeb  be  map  claim  tljc  °i^"j^°"^ 
Common  cenerallp  bp  liJrefcnpnon  i  a5ecaufe  tbc  ^ufpcnfionuia£i  *fm 
onlpto  tIjc  pofiefrion,  ann  not  to  ttjc  Rtgfjt.  ano  tljc  jintjccitaucc  of  ^ 
tijc  Comiiion  aluiaps  conttnueo.  Co.  ILitt.  i  h-  b.  "i3'<"  \ , 

Title  Oi  In- 
heritance, the  Party  cannot  alter  or  K-iive  the  lame  en  Pais  Co.  Litt.  S.  178.  pag.  1 1 4.  b. 


(U)    In   what    Cafes. 

I.    A  Man  (hall  never  prefcribe  for  what  the  Law  gives  him  of  Common  Noy.zo  S.C. 

J~\  Right  i  For  Ulage  is  only  ivherc  there  is  a  Dcfeif  of  Common  Right. 
Cro  E.  792.  Mich.  42  &  43  Eliz.  C  B.  Pill  v.  Towers. 

2.  A  i  ill  cannot  prefcribe  that  Part  of  the  Vill,  or  ftich  a  Hoiife   in  the  „    p  ^ 
F/7/  is  Devifeable,  or  Gave/kii/dy  -where  the  reft  is  Giitidabk.    Br.  Prefcrip-  pi.';;,  cites' 
tion.  pi.  53.  cites  40  AIT.  27.  S.'  C. 

3.  A  Parfon  prelcribed,  that  he  and  his  Predeceflbrs  have  been  feifed 
of  the  'Ttthcs  in  fiich  a  FIace,Timc  out  of  IMind  i  and  admitted  for  a  good 
Prefcription,  quod  nota  ;  and  this  where  the  Place  was  not  in  his  Faripi 
For  where  itis  in  his  Parilli  he  need  not  prefcribe.  Br.  Prefcription,  pi.  85. 
cites  14.  H.4.  17. 

4.  A  Man  may  prefcribe  /;/  Rent-charge,  and  to  dijirain  for  it  ivhen  it  is 
jirrear,  which  a'ppears  in  the  Cale  of  Alfiz.e  of  the  3bb0t  Of  ^ttatfOtD 
13.  tljc  fi)arfOn  of  LaptOn^  for  certain  Thread  of  Cotton,  \V  ax,  Oil, 
Incenle  &c.  to  maice  1  aper,  and  the  Lamp  in  the  Church  of  L.  And  there 
per  Danby  and  Prifot  it  Ihall  be  inteftded  Rent  Service.  Brooke  fays  qtitfre 
inde,  ivhere  no 'Tenure  is  ailedzed.  Br.  Prefcription,  pi.  84.  cites  35  H.  6, 
6,   7. 

5.  Where  a  Man  Juftifics,  or  Intitks  himfelf  to  Cummoit  yippcndant.^  or 
to  a  Common  Way,  he  need  not  to  prefcribe  Time  out  of  Mind  i  For  thefe 
\\  ords  Common  VYay  and  Appendant  imply  Prefcription  Time  out  of 
Mind.  Br.  Prefcription,  pi.  39.  cites  21  H.  7.  53.  Per  Coningsby  and  Brud- 
nell  J  u  It  ices. 

6.  Nothing  can  be  prefcribcd  for,  that  cannot  at  this  Day  be  raifed  t  c  p  a  <r 
by  Grant ;  For  the  Law  allows  Prefcri prions,  only  i»  Supply  of  the  Lofs  of  .  -^i^.^  g^"' 
a  G<  f?;//.     Antient  Grants  happen  to  be  lolt  many  Times,  and  it  would  be  I'arch.  49. 
hard  that  no  Title  could  be  made  to  Things  that  are  in  Grant,  but  by  E'i';  inLut- 
fi,ewing  of  a  Grant.     Therefore   upon  Ulage  !7t'W/)j  dont  ^c.  the  Law  ^'^i  p ''^f". 

*  prcfumcs  a  Grant,  and  a_lawful  Beginning,  and  allows  fuch  Ufage  for  ^,^_  j^jj^l, 

a  good  I  jac.  2.  B  R 


^^^  Prefcfiption. 

CL^Jn'the  X^"^  ^i-'';-  ^"^?i"  ''  ''  ^"^  '"  Supply  of  the  Lofs  of  a  G^i^nT^Tj^d 
ra„-'of         therclore  tor  (uch   Thmgs  as  can  hav e no  "JawfLl  Beeinnins?    nor  be  ere 
TanKsv.        ated  ar  th,s  Day  by  any  Manner  of  Grant,  or  Referfationf or  Seed  tint 
irollop,       cm  be  fuppofbd,  [no  Prefcription   is  good.   Arg.  \  ent.  387  d  es  11  H  1 
SPBP      '^''4-  13H.  7.  16.  perKebJc2i  H  7.  40  •  337.  cites  11  H.  7. 

'^■'■iption  ','r  ^^  l-y^'^^"'"'  ^^'^  Common  La-^  ,vtll  fcrve  a  Man,  he  fhall  not  prefcribe    as 
7 i.cite^  s  E  fo  "^™o^e  a  Nufancc.     Br.  Left.  Stat.  Limit.  43,  44.  ^  * 

f '  5- and  that  Prefcription  cannot  be  to  diftrain  for  a  Rcnt-Scrvicc Sn    ,  M 

for  //.r,.;  C«77.,..;  ;  becuufc  it  is  for  his  o-^n  Goods.  Br.  Lcit  Swt   L,;;;!^^  "  """°'  P''''^'''''^'^ 

uon  e„hr,e    :«'^caule  It  IS  oiCommon  Right,  and  cannot  be  by  Prefcription  •    J'nr   r  i« 

Plea  above 

-^^^^S^L^g^:^^"::^^  -^J-'l  '^  ^^^^^  ^^-  ^^^  ^^....-^  of  the  Manor. 


(VV)     Failer  of  Prefcription. 

the  Tune  of  r^.  A'../'/ 1  T2  S^- ^W^'.?^  A^lemory  &c.  /v/L/.« 

bythis  V^rdia,  Fc^^fh'e  Efleaof  tS  A^^^^^^     '^'  .^^^'"^'^  recovered 

,        n,ent  was  aiiirmed  in  ErronfufhSet^rfer  h^H  "  r  "^^'^  ^.^^S" 

12.  pi  az.  cites  T4  E.  3.  Fitzh^^Judgmeit  x];     '  ^'"'^ '"  ^'^^^''■''^-  J^"^" 

5-  ^-Jpon  a  Prefcription  for  a  Modus  decimonH;    U-,  ^ 

MaT,'7re-'    a  ^'  "^V?"'"  Common  for  loo  ^'/w/.,  as  appurtenant  to  a  Honfp  .n^ 
■  fcribcito      Acres  ot  Land,  and  he  purchales  other  L?nd,  a'ld  has  Smmnn       ^°° 
have  a„  purtenant  to  that  Land/.,  roo  ^'/...;,  ;„...  ,  tVTare  two  "S  r '^■ 
'ngnis.  It     mons,  and  in  int  tlino-  himfelf   if  L  „i^  ^i    d    r    •  •  ^ '''"  ^O'"- 

he^.v...that  Commonappurtenant?o  bol  Hoi  !  Plf-'ds  Prelcnption  intirely  for  a 
he  hasGw-    l^  .       ,•  -irs    ,,.'"■  "-^  "^"^  riouies  and  Lands  too-ether  tor  ■>r^n.  sii,^ 
v,on  app.r-     ^e  has  tail  d  ot  his  Prefcription  i  for  he  «////  wJ, /!Ll^..     /^w^^^^P' 
/.«.„.f  it       Prefcnpt.on  for  200  ^-^..p,  and  not  join  both  fno-^^^^^^^^^  '^"^ 

does  not        4  &  5  Mar.  Basket  v.  Lord  Mordaunt  ^  ^-  P^*  ^^^ 

maintain  the  >JiuauuL. 

lH'ue  ;  for  it  is  not  the    fame   Common.     Cro.  E    ,6-    Pafch   -n  Fli      r    p    •     o. 

Reynolds. Cues  10  £.  4.  1 7.  ^^'-  ^ '"^"'  59  Eliz.  C.  B.  in  Cafe  of  Lovelace  v. 

by  PoplL     T  4"  ?"^  Prefcribed  to  have  Pct-water  out  of  fuch  a  R  iv^r  A-.        ^    u 
in  Cafe  of      judged.  That  he  had  tiiled  in  his  PrHrr;£;  •    -j  ?  ^^^'     ^"^  ^^^  ^f^" 


S.  A 


Prefer]  pti  on.  281 


5.  A.  prefer! bed  to  grant  an  Office  Alicni  perfon<c,  or  Ctiicttnqac  perfonse 
Idoneff  voluerit ;  this  Prcfcription  will  not  warranc  a  Grant  to  two  Per- 
ibiis.     Per  Dyer.   3  Le.  33.  Niich.  15  El.  in  C.  B. 

6.  In  Trefpafs  the  Detendant  jiilliHed  as  in  his  Freehold  ;  the  Plain-  ]\ro  559  pi. 
tiff  made  Title  that  the  Locus  in  quo  &c.  was  Parcel  ot"  the  Manor  of  49o  aci;udg- 

D.  and  dcmtfable  Tiine  out  of  Mind  &c.  by  Copy  either  /;;  Fee,  TaiK  or  ^^-  ^  ^-  ^"l 
for  Lii'i's  &c.  and  that  it  was  granted  to  the  Plaintiff  by  Copy  in  P^ee.  j)oriev  v 
This  Prefcription  was  travers'd.  It  was yo/zW,  That  the  Lands  had  been  Wood. 
Time  out  oi  Mind  granted  tn  Fee,  but  tievcr  in  'tdil :  The  whole  Court 

held,  that  it  was  found  for  the  Plaintiff^  for  the  alleging  that  it  had 
been  demilable  in  Fee,  in  Tail,  or  lor  Lives,  was  but  the  Conveyance 
to  his  Title;  and  being  found  that  it  was  demifible  in  Fee,  and  that 
it  was  demiled  in  Fee,  that  is  the  Effect  and  Subftance  of  his  Title, 
which  is  fuliic  lent ;  wherefore  the  Plaintiff"  had  Judgment.     Cro,  E,43i.  ' 

Mich.  37  &  38  Eliz    B.  R.  Doyle  v.  Wood. 

7.  W  here-  one  prcfcribes  to  ha\e  Common  appurtenant  to  bis  Bcnfe  and  In  Replevia. 
20  Jcrcs  of  Land,  and  it  appears  upon  Evidence  that  he  has  but  i^  Acres ,  ^^^^  »^''^ 

or  a  lefs  Parcel,  yet  he  has  not  failed  of  his  Prefcription  i  but  if  he  had  t'licr^T"'^" 
20  Acres,  and  10  Acres  are  Freehold^  and   10  Copyhold,  he  there  tails  of  and  ali  ihofe 
his  Prefription  j  for  he  cannot  make  one  Prefcription  f^r  both.     So  it  is  whole  Eftace 
n  Part  -was  Copyhold  100  Tears  Jince^  bat  now  is  Freehold.     Cro.    E.  531.  ^^'-  ^^'^ 
Mich.  33  &  39  Ehz.  C  B.  Greeory  v.  Hill.  "^'^ '°  '^/^= 

all  their 
Betzfls  Levant  and  Comhant  upon  a  Mefliuge  zoo  Jars  of  Land,  ^o  of  Me.idotv,  and  50  of  Pafniye  in 
4  Tciins.  The  Jury/?;r',  that  the  laid  M  was  (eifed  of  the  fame  Hr.u'e,  Land,  Meadow  and  P.ffture 
in  the  fame  4  Town.s  but  that  he  had  his  Comnio?:,  as  belonging  only  to  tlie  MelTu.ige,  and  zco 
Acns  of  Land,  to  of  Meadc-ZL-,  and  20  of  Paftiire  tn  lue  of  the  'ioivns,  and  not  to  tiie  reft  ;  where- 
upon judgmer.t  was  given  againrt  the  Plaintiff,  as  failing  in  his  Preicriptioil.  Hob.  209.  Mj.-h.  15  J.ic. 
Mitchell  V.  Mortimer. 

8.  If  A.  prelcribes  fir  Common  for  100  Sheep,  and  the  jury  find  that  he  S.  P.  Show, 
has  Common  tor  too  Sheep  and  6  Co^ws  i  this  i,s  no  Failure  ol  Prefcription ^  ^4'-  Eurgefs 
Per  Cur.  But  Per  \\  almlley,  if  thejury  had  found  Commcin  lor  i2oSheep,  Y;^',^'^""'^ 
and  fo  more  of  the  fame  Kind  than  he  had  alleg'd,  he  had  tailed.     Cro.  Bru.-^es  v' 

E.  722.  Mich.  41  &  42  Eliz.  B.  R.  Buihwood  v.  Bend.  Seei-^ — - 

So  if  a  Man 
prcfcribes  that  he  his  Common  for  Sheep  oily,   and  tho  Jury  find  Common  for  Sheep  and  Gre.rt  Cattle,   the 
Common  is  found  for  the  Plaintitf     Per  fsichols.    Browni.    17S.  Trin.  li  Jac.   in  Qife  of    )ohnfon  v. 

Thorowgood.- So  if  oneclaiTis  drnmon  all  the  Times  of  the  Year,  ill m  the  Lands  be  f".illow,  and 

when  it  is  foiin  from  flich  a  Day  unco  6cc.  and  hi.  Cattle  are  taken  in  tlic  Year  whert  it  is  fown,  or  lies 
fallow,  it  is  fufhcient  for  the  Plaintiff  to  preicnbe  for  Common,  cither  in  the  Yciir  wheti  it  is  Ibwn,  or 
when  it  lies  fallow  ;  and  if  tlie  Jury  find  all  tlie  Common,  it  is  Cufficicnt'y  found  for  the  Piaintitf.  Ibid. 
■ So  if  a  Man  hath  Common  from  fuch  a  Day  to  fin h  a  Day,  and  the  Cattle  are  taken  at  a  Day  be- 
tween the  Days,  and  li.;  prcfcribes  that  he  hath  Common  in  the  laid  Time,  quo  &c  a'ld  the  fury  find 
he  had  Common  before  tliat  Time  the  fame  Day  and  after,  the  Verdict  is  found  for  the  Plaintiff  ; 
Per  Kichols,  qnod  VN'ai  burton  S:  ^^  inch  corccfht.  Ibid  — So  where  a  M^n  pre'cvibedyor  Common  of 
Pafltire  for  all  his  Sh':rp  Levant  and  Couchant  S:c  it  was  found  hy  I'erdicf  that  he  hadCiwmon  for  Sheep  and' 
for  alt  other  Cattle  Sec'  The  Court  held  that  the  Aftion  being  only  for  im|-'oundi!ig  Shec'i,  the  Plain- 
tiff'might  v.ell  abridge  the  Prejcription,  as  to  them  only,  ftnce  nothing  elfe  was  in  Difpute;  and  the  finding 
that  he  had  Common  for  other  Cattle,  do:;s  not  fallity  his  Prefcription,  but  Itands  with  it  ;   and  the 

Plaintiff  had  Judgment.     Carth.  219.  Palch.  4  W.  &  M.   BR.  Burgcfs  V.  Searic ^Hfif  a  Man 

prcfcribes  for  Common  for  alt  Cattle  Qpc.  at  all  Times  in  the  I'ear,  when  it  appears  bv  the  E-cidence  that 
Sheep  were  excepted  jcr  feme  T'tme  of  the  fear  ;  this  is  a  Failure  of  the  Pre'crimion  ;  therefore  the  ['re- 
fcv'i'^nion  ought  to  I aie  lieenfpecially  pleaded 'Zi-ith  th'is  Exception.    Refolved  per  Cur    Carth     241.    Pafch  4 

W.&M.  The   Ki'ig  v.  Inhabitants  of  Hermitage. So  where  the  Defendant  had  prefcribed  for 

Common  for  all  Sieep  Levant  and  Couchant  &c.  and  the  Evidence  was,  that  he  iiad  Common  lor  his  own 
Sheep  only  ;  it  was  objected  that  the  Evidence  did  not  maintain  the  Prcfcription;  and  of  this  Opinion  was 
all  the  Court,  bccaufc  as  the  Prefcription  was  laid.  Sheep  agijled  or  otherwi'e  Levant  and  Couchant 
ought  to  have  Common,  which  is  not  warranted  by  the  Evidence ;  for  that  is,  that  he  has  Common  for 
his  own  Sheep  only.  Palm.  362.  Earl  of  Devon  v.  Eyre. 


9.  Lord  prefer!  bes  to  dijlrain  the  Beajis  of  his  '7'enant  for  not  doing  Suit  Kov.20.  Pell 

"  "  ;alls  of  his  Undertenant,  this  is  not      "" 

2.   Mich.  42  &  43  y.hz.  C.  B.  Pill 

4  B  10.  lu 


to  his  Court;  if  he  diffrains  the  Bealls  of  his  Undertenant,  this  is  not  ^  T'owers. 
within  the  Prefcription.     Cro.  E.  792.   Mich.  42  &  43  YX\z.  C.  B.  Pill   *  ^• 
Y.  Towers. 


282  Prefcription. 


A  Man  pre-  10.  In  Replevin  lor  taking  one  Horfe,  oneGddin^^  and  two  Coivs  8<c. 
^riK-a  to  ji^p  Detendanc  avovv'd  iur  Damage  teafant  j  Plaintill  in  E-nx  prcjcnbed  la 
e^'/yrifiup-  '^he  Place  where  &c.  for  Common  Appurtenant  Pro  o/«/;;/'/«  Eqiiis,  Vac- 
cm  fucli  a  cts^c.  Dclendant  demurr'd,  bccauie  this  Prefcription  did  not  maintain 
Baulk,  tins  the  Declaration  i  iov  nnthtng  is  [aid  as  to  Geldings.  And  ot  that  Opi- 
^'^•'^'.^"r  nion  was  Anderibn ;  but  the  other  Jullices  contra,  and  that  the  Pre- 
ufineTt  \vitli  ^"'-■ripcion  was  good  i  for  Eqiins  is  a  general  Term,  and  comprizes  both 
JLuesor  Horfes  and  Geldings^  but  not  Mares.  And  the  Court  laid,  that  aJI  the 
Gwi  ;  foi-  Jultices  of  Serjeant's-Inn,  with  whom  they  had  contcrr'd  about  it, 
''^^  ^^0*^  except  one,  were  of  the  fame  Opinion  :  Wherefore  it  was  adjudged 
are  but  In-    ^of  the  Piaintift'.     Cro.  E.  798.  Mich.  42  &:.  43  Elii^.  B.  R.  Stapieton 

fiances  ;  and    V.    Morfe.  • 

the  Defen- 
dant is  not  tied  up  pi-ecifely  to  that  Kind  of  Beads  in  his  Plea  ;  for  the  ^Tain  Matter  is,  that  the  Grafs 
there  growing  has  been  eaten  by  him.    Clayt.  54  pi- 94   Sir  Thomas  Danby's  Cafe. 


Suggeftion  II.  A  Surmife  for  a  Prohibition  was,  that  Time  out  of  Mind  he  had 
in  a  Frohibi-  q^'jJ  /^  p,^,  ^  j_  p^r  AnntuH  tn  Difcharge  of  all  Tithts^  and  he  proved  that  he 
tion  was,  ^^^,^  ^^  ^-^y  4  J.  6  d.  per  Annum  ;  but  bccauie  it  appeared  that  no  Tithes  in 
Pbindff  K.ind  were  due  to  the  Parfon,  as  he  liaed  for,  bat  that  'tis  a  Modtts^  thu' 
Time  out  of  not  in  fuch  Manner  as  the  Plaintifi'furmifed,  a  Coniultation  could  not  be 
Mind/j^rf      granted.     Cro.  E.  819.  Pafch.  43  Eliz.  B.  R,  Beal  v.  Webb. 

'paid  a  Modus 

of  i  s.  jor  II  'col  and  Lanihs,  but  frozes  yiuthhi!!,  of  the  Wool  And  it  was  moved  for  a  Coiiful ration,  bc-caufe 
the  Surmife  is  of  a  Joint  Prefcription  and  Modus  Dccimandi  for  Wool  and  Lambs,  and  no  Proof  be- 
ing made  of  the  Wool,  he  had  failed  in  all.  But  per  Cur.  There  is  u  Different  beHvecn  a  Su^pejlion  to 
kiive  Prohibithr,  and  a  Prefcription  compri.'-'d  in  it,  and  a  Prefcription  made  in  Defeme,  or  t^lf'ay  ot  Plea 
in  any  Original  Jifi  n  ;  for  in  the  laft  Cafe  a  Joint  Prefcription  made  of  two  Thirgs,  and  Failure 
in  one  dellrovs  all,  becaufe  it  is  by  IVay  of  Title  ;  but  otherwife  here,  becaufe  this  Prohibition  is 
only  to  give  jurifdittion  to  the  Court  ot  King's  Bench .  Yelv.  55.  Mich.  ajac.  B.R.  TheCafeof 
Prohibition. 

12.  In  an  Aftion  ofTre/pafs  againllG.  he  juflifies  by  Reafon  of  a  Com- 
juon  appendant  by  Prefcription  /;;  500  yieres.  And  it  was  found  by  Ver- 
di£tj  chat  the  yince/for  had  releajed  his  Common  in  five  of  thefe  Acres  And 
by  the  Court  he  had  failed  in  Prefcription.  The  Common  by  that  is 
not  extinft,  becaufe  it  is  difcharged  to  be  Common  by  A61  of  Parlia- 
ment tor  Failure  of  Prefcription.      Noy  67.  Rotheram  v.  Green. 

Cites  D.  164.3.  284 

13.  If  a  Man  prefcribes,  that  every  one  who  has  7  Lambs,  or  under, 
pall  pay  to  the  Parfon  a  Halfpenny  for  every  Lamb  ;  and  it  is  found  ac- 
cordingly ;  and  further,  that  if  he  has  more  than  7,  then  the  Parfon  pall 
have  one,  and  fhall  pay  the  Paripioner  an  Haljpimy :  He  has  lail'd  in 
his  Prefcription  per  Cur.  See  Trial  (K.  g.  2.)  pi.  30.  Pafch.  7  Ja.  13. 
Calkll  V.  Dodd. 

Cro.  J.  665.        14.  In  Cafe  the  Plaintiff  declared  that  he  was  feifed  of  a  Clofe  called 

pi.  iv-  S.  C.   Hayc  next  the  River  O.  and  that  the  Defendant  was  poffefs'd  of  ano- 

^y  ^3"J^  "^    th^r  called  Grove- Mead- Clofe  on  the  other  Side  of  the  River,  and  that 

Warner  ~  ^e  and  all  the  Pofeffors  of  Grove-Mead-Clofe  Time  out  of  Mind  have 

2  Roll.  Rep.  iifed  to  make  a  Hedge  on  the  Bank  of  the  laid  River  againll  the  Water, 

2SS.  Hoi-     which  the  Defendant  had  not  done,  by  Reafon  whereof  the  Cattle  pafs'd 

bettsv  War.  q^^j.  Jjjj.^  j|^g  Plaintiff's  Land  from  the  other  Side  Ad  damnum  &c.  After 

^^'     ■    ■      a  Verdict  for  the  Plaintiff,  it  was  mov'd  in  Arreff  of  Judgment  that  the 

Prefcription  is  ill,  becaufe  it  ought  to  have  been  either  by  W^ay  oi'  Cuf- 

torn  in  a  Vill,  or  in  a  Perfon  who  may  prefcribe  and  aver  Continuance, 

by  Reafon  of  his  Eftate  ;  but  Poffelfors  or  Occupiers  are  no  fuch  Per- 

fonsi  for  that  may  be  Polfelfion  lor  an  Hour  or  lels,  which  is  no  Ground 

lor  a  Prefcription  ;  and  for  this  Reafon  the  Prefcription  was  thought  to 

be  ill  by  Doderidge,  Haughton  and  Chamberlain  Jullices,  but  Ley  Ch.  J. 

thought,   that  when  Damages  are  only  demanded  by  the  Writ,  it  fullices 

to  fav.  That  the  Pofl ellbr  yo/i-/ ;  but  otherivife,  where  the  Land  itfelj  is  de- 

7/mnded, 


Prefcription.  28'^ 


vtander/,  there  he  fliall  fay  Delect  S  So/a ;  alio  where  the  Land  it  felf  is 
demanded,  he  ought  to  make  the  Tertenant  a  Party  i  but  where  the  De- 
mand is  only  to  enjoy  One's  own  Land^  vvith.L'Ut  Incuinbrance  by  Rea- 
fon  of  another's  Land,  it  is  fufficient  to  charge  die  Occupier,  and  the 
Pofleifor  flrall  be  Tenant  to  this  Purpofe.  Palm.  331.  Hill.  20  Jac.  B.  R. 
Holbedg  V.  Warner. 

15.  In  I'refpafs  for  Feeding  his  Palture  Ground  (?cc.  the  Defendant  And  Ley  Ch. 
prefcribed,  that  he  and  all  thofe  whofe  Ellate  he  had  in  rhe  Manor  of  J-  'i'i'i.  <'iiat 
Hallbp,  had  Common  for  all  Sheep  Levant  and  Co:iikd»t  on  the  faid  Ma-  ''^1^'^  ^, 
nor  i  upon  the  Trial  the  Evidence  wasy  that  this  Manor  was  pitrchafed  win.  1' the^ 
by  the  Phufitiff'  (f  tivo  Coparceners^  and  that  he  bouglic  the  lit  of  one  S  ..emrr"  is 
Mohty  firjiy  and  at  the  fame  1'tmc  had  a  Leafe  of  the  other  Adcuty  for  Tears,  h  ^'^oh-t'cs  or 
und  afterziwds  pmrhajid  the  Fee  of  that  Moiety.     It  was  mov'd  that  i'^e  ^'!" 'r'J\"  ' 
had  filled  in  his  Prelcription,  becaufe  the  Purchafe  of  the  M  uior  was  is"no"t  anV^"^* 
by  Parcels,  and  he  has  made  one  intire  Prefcription  for  cheCommo.i  to  .wei-aticeor 
the  whole  Manor,  whereas  he  ought  to  have  made  a  fpecial  Prefcrip-  P-i"ition, 
tion,  becaufe  the  Parcels  we^e  once  fever'd.     And  Ley  Ch.  J.  and  ^^^j^^j^^^'''^- 
Doderidge  J.  were  of  this  Opinion  i  for  when  by  Act  of  the  Party  the  bthe'wli'olc 
Manor  is  once  fever'd,  there,  tho'  it  be  re-united,  yet  he  ought  to  make  andrheCom- 
a  fpecial  Prefcription  to  the  Common  ^  Other  wife,  had  it  been  lever'dbv  "i°''  """"s 
AftofLaw,  as  Partition.     Palm.  362.    Hill.  20    lac.  B.  R.  Earl  of '1''""?^°"^ 

•rw..,  TT  •'  tlie  Manor; 

Dtvonv.  Eyre.  fotlmthe 

Cjinmo:''  ' 

rr.ay  he  intire ;   othcrwife  if  ir  were  hy  Meets  anH  Bcunrls.      Ibid. And  Doderidj^e  J.    held 

the  Prcfcriprion  ill,  becaufe  it  is  uncertain  whether  it  be  Common  Appendant  or  AppuiTena'nt;  but  as 
to  this  Haughton  held  tlie  Prdcriptioii  good  ;  for  he  held  the  Manor  intire  and  re-united,  and  the  Pre- 
fcription iliall  be  accordingly.     Ibid. 

16.  In  Trcfpafs  the  Defendant  juftified  for  Common  from  the  Cc'rrying 
away  of  the  Corn  till  it  ivas  refowed  "-jJitb  Grain.  The  Plaintilf  repines 
that  at  the  Time  of  the  Trefpafs  fuppofed  it  v.'<is  fowed'with  turnips.  1  e 
Opinion  of  the  Court  was,  that  it  was  not  fuch  Grain  as  was  intended 
in  the  Prelcription.  Freem.  Rep.  51.  pi.  63.  Mich.  1672.  Eruertoa  v. 
Right,  in  C.  B. 

17    Trefpafs.  The  Defendant  juftiHed  by  a  Prefcription  lor  a  Way  to  a  So  where 
certain  Clofe ;  the  Plaintiff  replied,  that  he  Iroughta  Load  of  Hay  along  that  "-'''^  ^;'^* 
IVay  that  gre-iv  upon  another  Clofe  ;  and  the  Defendant  demurr'd,  and  ad-  dl'i'iufbi'/'"* 
judged  againlt  him;  for  if  a  Man  hath  a  private  Way  to  a  Clofe,  he  lliali  the^PlainfilF 
n'^t  enlarge  it  to  other  Purpofes.     P'recm.  Rep.  247.  pi.  259  Hill.  1677.  if  the  Ufe  of 
Weblter  v.  Bach.  a  Way,  tha 

Plaiatifl-  de- 
clared that  he  wtis  fcifed  in  Fee  of  a  Clole  called  L.  and  of  a  Meadow  called  G.  and  fo  prefcribed  for  » 
W.ty  leading  thro  a  Place  called  /?.-L.T?.'e  ?o  a  Place  called  L.-L.tiie,  and  thence  to  his  j.vii  Clofe  called  L. 
and  that  the  Defendant  had  fpoiled  B.-Lane,  wich  his  Carts  and  Clarnaj^es  ;  ib  tliat  the  Way  was  of  no 
Vfe  to  the  Plaintiff  &c.  The  Defendant  pleaded  that  VV.  V.  was  feiled  in  Fee  of  a  Clole  called  B.-Ciole, 
and  then  lays  a  Prefriptioii  in  the  faid  VV.  V.  for  a  V\'ay  through  B.-Lane  to  tlie  fiid  (^lole,  and  fo 
back  again,  and  juftihed  as  Servant  the  going  thither  with  his  Carts  &c.  tlie  Plaintiff  in  his  Replication 
confcfs'd  that  VV.  V.  was  leifed  &c.  and  had  a  Way  from  the  Lane  to  the  Clofe,  but  that  the  Defen- 
dant, in  ufing  the  faid  Way,  did  ^0  heyctid  thnt  CfpJ'e  to  another  Clofe  called  Warion  Langdalcs,  ,-ind  fa 
hack  aeain,  the  Defendant  rejoined  as  before,  without  alleging  any  new  Matter;  and  upon  Demurrer  to 
the  Rejoinder,  the  whole  Court  relblved  that  the  Defendant  having  prclcribed  to  a  Way  only  to  B. 
Clofe,  he  cannot  jullify  the  going  beyond  it  into  the  other  Clofe  of  V\    V.  called  W.  L  Judgine!K  was 

given,  but  not  entered  upon  the  Roll.     Lutw.  ill.  ii;.   Trin.   7  W  5.  Laughton  v'Ward. So 

where  A.  had  a  Way  cy-ic'c  B.'s  Ground  to  Bl.  Acre,  and  drove  his  Cattle  over  B  "s  Grou:id  to  Bl.  .\cre,anil 
thence  to  another  Clrfe  hine,  beyond,  it  was  urg'd,  that  when  the  Bealh  were  at  31.  Acre,  the  Detendant 
might  drive  them  whetlier  he  would.  But  it  was  anfwered.  That  by  this  Means  the  Defendant  mig'it 
purchale  10:0  Acres  adjoining  to  Bl.  Acre,  and  ^o  the  Plaintiff  would  lole  the  Benefit  of  his  Laud, 
and  that  a  Prefcription piejiippofes  a  Grant,  ,ind  ought  to  be  continued  iicccrdinf  to  its  Oripinal  Creation.  .\nd 
TO  this  the  whole  Court  agreed,  aid  Judgment  was  given  accordiigly  foi-  the  Plaintiff.  Mod.  1^0. 
Mich.  26  Car.  2.  C  B.   Howell  v.  King. 

1 8.    In  Refcoiis  of  300  Sheep  the  Defendants  pleaded,  That  the  late 
Bilhop  of  N.  was  feifed  in  Fee  of  the  Manor  of  N.  and  that  the  laid 
Bilhop,  and  his  Predecefibrs,  Time  out  of  Mind,  had  Liberty  ff  Faldage 
and  a  Fould-Coiirf;  for  300  Sheep  in  and  npoii  the  Pl.iinttjf's  Clufcs  at  cer- 
tain 


284.  Prefcription. 


tain  Times  of  the  Year,  and  fo  jtifiifes  the  putting  in  his  Sheep,  under 
a  Lcafe  Ironi  the  Bifliop  of  the  faid  Faldage  and  Fould-Courfe,  and 
that  they  were  depnjtiiring  there  &Cc.  The  PlaintilFin  his  Replication  made 
Title  to  himfelt  of  the  Clofes,  under  a  Grant  from  the  Eilhop,  before 
the  Leale  made  to  the  J3elendants,  andtraverfed  the  Prefcription  of  the 
■  Liberty  of  Kaldage  and  Fould-Courfe ;  The  Defendants  take  Iliue  up- 
on the  Prefcription,  and  had  a  Verdiftj  but  it  was  moved  in  Arreft  of 
Judgment,  that  a  Prefcription  to  have  a  Faldage  and  Futild-Cotirfe  can 
never  extend  to  gii'e  a  Righ.  of  Coiinnon;  becaufe  tne  Nature  of  Kaldage  is 
to  have  other  Alen's  Sheep  folded  on  my  Lands ;  And  therefore  the  De- 
fendant having  confefled  the  Trefpafs,  and  not  made  a  good  Jultifica- 
tion,  the  Judgment  was  arrelled.  2  Lutw.  1249.  Trin.  3  Jac.  2.  Sharpe 
V.  Bccheno^^  e. 

19.  In  an  A£lion  on  the  Cafe  for  diverting  a  Jfater-courfe  rttnniag  to 
the  PijtntijfsHonfc,  if,  upon  the  general  Illue  pleaded,  it  had  hzQn  proved^ 
that  the  Ihiter  did  not  al-jvajs  run  to  the  Plaintijf'^s  Hunfe,  but  tliat  it  was 
ufnally  dried  up  in  the  Summer,  or  drank  up  by  the  Cattle  cj  the  Defend  ant  ^^ 
(by  whole  Clofes  itpafled,  and  where  he  had  ufed  to  dig  Holes  to  hold 
ibme  Water  tor  his  Cattle)  in  fuch  Cafe  the  Plaintiff  would  have  failed 
of  his  Prefcription.  Carth.  117.  Pafch.  2  W  &  M.  B..  R.  JNlurgatroid  v. 
Law. 

20.  Trefpafs  Quare  Claufum  fregitj  the  Defendant  pleaded,  That 
D.  P.  was  leifed  in  P'ee  ot  a  Mill  and  a  W'eare,  and  prel'cribed  to  have 
Ingrefs  into  the  Plaintiff's  Clofe  to  repair  the  jatd  IVeare  when  it  was  in 
Decay,  and  that  he  as  Servant  to  him  entered  for  the  Purpofe  afore- 
faid.  The  Plaintiff  in  his  Replication,  confeli"ed  the  Seilin^  and  the 
Cultom  to  repair  &c.  but  that  T.  S.  hail  extended  the  IVeare  beyond  the 
v.fual  Place  &;c.  upon  which  they  were  at  IlFue.  See  2  Lutw.  1515. 
the  Pleadings,  but  neither  Judgment  nor  Argument.  Palch.  12  W.  3.  C. 
B.  Morgan  v.  Evans. 


(X)  Pleading  a  Prefcription  againft  a   Prefcription. 

*  S.  R  per  J  /^AXE  Prefcription  may  be  pleaded  againft  another,  "where  the  one 
Kep  210^'pi  V_^  may  fl and  With  the  other;  as  for  Inltance,  Where  a  Copyholder 
zT.M^ich.  ot  a  Bifliop  prefcri bed,  that  all  Copyholders  within  the  Manor  had 
i6-6_  in  Cafe  been  difcharged  of  Tithes.  But  not  where  one  Prefcription  is  againft  an- 
of  Hickman  other,  as  where  one  prefcribes  to  have  *  Lights  to  his  Houfe,  and  the  other 
V,  1  horny,  prefcribes  tojhp  them  up.  Per  Coke  Ch.  J.  in  the  Cafe  of  IpUgDe^  lJ» 
l\CCnC  Godb.  183.  pi.  262.  cites  the  firll  Point  as  adjudged  in  the 
Cafe  of  \V"right  v.  W^right. 
S.  P.  per  2.  If  A.  has  a  Way  over  B's  Land  to  his  Franktenement  by  Prefcrip- 

(  ur.  Frcem.  tion  Time  out  of  Mind  &c.  B.  cannot  allege  a  Prefcription  or  Ciiflom  to 
■'^^'^{n^cj^  J^^P  thefaidWay  ;  For  it  is  a  lawful  Eafement,  and  one  Cuftom  is  asan- 
iif  Hickman  ^'i^nt  as  the  other.  9  Rep.  58.  b.  Mich.  7  Jac.  Aldred's  Cale. 
V  Thorny.         3.   The  Plaintiff  prefcribed  for  a  Fould-cotirfe  for  300   Sheep,  in  70 
Acres  of  Land  in  B.  every  Year,  from  14  Days  ajter  the  Corn  carried  a- 
way  till  Lady-Day^  within  the  Lands  not  fowed  again;  The  Defendant 
pleaded,  that  there  is  a  Cufiom  within  the  faid  Town  of  B.   that  anyone 
may  inclofe  any  Part  ef  his  Lands  lying  in  the  common  Field.     But  the  Plea 
in  Bar  was  adjudged  not  good,  becaufe  he  does  not  traverfe  the  Prefcripti- 
on in  the  Declaration  ,  For   a  Prefcription  cannot  be   pleaded  againft  a 
Prefcription.     But  the   Prefcription  alleged  in  the  Count  ought  to  be 
anfwered.  Cro  C.  432.   Hill,  ii  Car.  B.  R.  Spooner  v.  Day  and  Mafon. 
2  Mod  104.       '^'  l^he  Defendant  avows  for  Damagc-teafant  in  Freehold.  The  Plain- 
105.  Trin      tiff  replies^  that  he  vvasfeifed  of  a  Houfe  and  two  Acres  of  Land  in  B. 

and 


Prefcription.  08:; 


and  that  he  prefcribes  for  Common  belonging  to  the  fuid   Houfe^  and  t'-jffo  ^^  C^r.  z.  s. 
Acres  of  Land  in  the  Field  of  D.   whereot  the   Locus  in  quo   was  Parcel.  ^•Ji'>"'''^'"' 
The  j)etendanc  rejoins,  that  there  was  a  Cnjlom  in  the   Ikid  Fields,  that  doubted"^" 
any  O'lVner  of  Lands  might  inclofe  any  Parcel  of  Land  lying  together   in  the  much  of"  this 
fatd  Field,  and  exclude  the  Commoners  in  the  fiiid  Field.     The   Plaintili"<^-aie.  bc- 
demurs  and  objects,  that  this  Rejoinder  is  naught ;  becauie   here  is  a  r?"*^'  *'"= 
Prci'cription  pleaded   againlt  a   Prelcripcion,  without  tr.iverling  the  firlt  had  pleaded 
Prefcription  which  is  *    not  good,  accordmg  to  f  !3Hll*Cll'0  Cafe.  58.  thisCuftomto 
1  Cro.  432.  But  the  Court  feemed  to  incline,  tnat  it  may  be  well  enough ;  inclofc  in  Bai- 
lor a  particular  Prefcription  may  be  controlled  by  a  general' Cuflom,  though  it°''^^"'''-'cl'ol'-- 
cannot  bv  another  Prefcription ;    For  where  a  Cultom  is,   which  isV a  ^!^ T  In^'1^ 
greater  hxtent  and  l^aticude  than  the  Prelcnption,  there  it  may  be  good  the  Common 
without  traverling  the  Prcicription  ;  lor  if  one  or  two  Men   inclofe,"  yet  V\ii\<^,  but 
t!;e  Party  has  his  Common  in  the  Refidue,  and  lb  it  may  Hand  with  Fd'cnbed  to 
Prefcription.    The  Detendant  coniented  to  pay  Colts  and  amend.  Vxczm.  Ri^tt  t'licre 
Rep. -10.  pi.  217.   iMich.   1676.  Sir  \\illiam  Hickman  v.  Thorny.        as  appendant 

to  two  Acres 
of  Land  which  he  had  el fcr; here,  for  which  reafon the  Defendant  prayed  to  amend  upon    Pavmcnt  of 

Coll>^ Frcem.Kep.  211.  S.  P.  per  Cur. *  S.  P.Carth.  116.   Pafch.  z   VV.  6c  iM.    B.  !<..  in 

Cafe  of  iMurgatroid  v.  Law. . ■  |  9  Rep. 


(Y)  Pleadings. 

I.  TT  was  prefcnted,  that  J.  S.  by   reafon  of  his  'Tenure,  had  11  fed  to  re- 

J^  pairfiich  a  Bridge,  and  did  not  fay,  that  he  and   thofe  '■^hofe  FJlate  A 
he  has  &c.   have  tifcd  6ic.  And  per  Cur.  the  Prefentment  is  good  when  ^'^'''^". 
hefays,7/9^/  ly  reafcn  of  his  7hture  See.  he  ought  to  repair  &cc.hor  this  im-  Br.  Pre^bnt^ 
plies  Title  of  Prefcription.     Suliard  laid,  It  is  not  good  to  lav  that  he  and  ment  in 
his  Anceltors  ha\euled&c.     And  per  Fairlax,  tnis  is  true  j  For  he  can-  ^"^^'^^1  V^- 
fict  be  charged  by  the  u"!^  of  his  jincflor  '■joithout   Profit  to  be  taken  by  it;  'S-i^i^cbS.  C. 
Contract  fuch  Prefcription  againft  an  Abbot;  For  the  Houfe  and  the 
Thing  continues,  but  by  leafon  ot  Tenure  as  above  this  in-plies  a  Profit. 
And  this  bvthe    Tullices.  Br.  Prcicription,  pi.  78.  cites  21  E.  4.  38.  f~^ — ^^-^^ 

•*  11/  ^  A,s  to  Cjm- 

2.  In  Trefpafs  the  Ufe  and  Prefcription  oi'  Common  appurtenant  wo^s  scsf^\.\-. 
put  in  Ili'uc,  and  yet  this  is  in  the  Rght.,  and  the  yitfioii  is   in  the  Pof-  in  Noris  iS. 
Jefjicn.  Br.  Prefcription,  pi  89.  cites  22  All^  63.  and  30  All!  42.   and  40  ^°  ^^  >' 

t.  3.  31.  and  22  a.  6.  51.  and  7  E.  4.  26.  accordingl\-  ;  and  yet  40  E.  ^^■^'^"^^'^^^ 
3.  10.   he  v/as    put   out  ci  this   Plea,      ylnd  lo  by  Finch  in  Replevin, 
where  the   Plaintiff  jiff  ified  for  Common  appendant.     And  he   faid,  thac 
the   Prefcription  Ihall  be  traverfed  in  Jf^uo  Jure,    which  is  in  the  Right. 
Br.  Prcicription,  pi.  89.  cites  22  All".  63. 

3.  In  Trei'pals,  for  trampling  and  feeding   his   Grafs.     The  Defen-  Mod.  <?, -. 
dant  pleads  in  Bar,  that  the  Borough  of  D.  is  an  ancient  Borough,  and  pl-  ^'^  S-  C. 
that  the   Defendant  Tempore  quo  &  diu   antea  was  a  Burgels  of  the  y  |^-^"ie  of 
faid  Korough  ;  that  the  Mayor  and  Biirgeffes  for  themfehes,  and  for  every  tionof  Der-~ 
iiHr^f/jr  of  the  faid  Corporation,  had  Common  in  th-e  Place  ischere,  jor  allhy,  but  not 
f^f/VCwwyy/o^/^rZ-V^Cs/Z/f,  and  that  he  put  in  the  faid  Cattle  to  ufe  his  Common,  f-iid  to  be 
Upon  Demurrer  it  was  objefted  by  the  Court,  That  the  Delendant  has  ^'^J^dged. — 
prefcribed  for  Common  in  Grofs  Sans  Nombrc,  when  there  is  no  fuch  Com-  Hiii" -o^& 
men;  for  if  it  ihould,  then  the  Corporation  might  furcharge  the  Com-  ;i  Car  2.  B. 
mon,  there  being  no  Reftraint  to  the  Number  of  their  Cattle;  there- R-  ^tahlfS 
fore   he  jhouli  have  prefcribed  for  all  Cattle  levant  and  couchant  ijcnthin^^f:^^^^' 
the  Vtll ;  To  which  it  was  anlwered,  That  there  is  no  Danger  of  fuch  j^pjj  jh^t  j^ 
Common  being  furchargcd,  tor  in  fuch  Cafe  the  Lord  or  Owner  of  the  mif;ht  well 
Soil  may  dil'train^   but  that  this  being  Claim  of  Common  in  Grofs,  and  be  Common 
not  Appendant  cr  Appurtenant,  it  had  been  improper  ro  prefcribe  jor '"^'"'^' ^'•'- 

4  C  Cattle  "'''  '^"?'''-'"" 


286  Prefcription. 


nar.ttoany  Ciittk  Levant  and  Couchain.  But  it  was  adjudged,  that  the  Plea  was 
Liind,  at  (1  j|}^  becaule  the  Delendanc  in  his  Prefcription  did  not  aver,  that  the 
^"'•'';' 9  ^•'^' G?;//e  zttre  Levant  and  Conchaut  within  the  Vill,  and  that  it  had  been 
kepi's-.  As  good,  it' thole  Words  had  been  put  in;  But  Kelynge  Ch.  J.  faid  poli- 
ifa  Man  tn  ely,  that  there  could  not  be  any  *  Common  in  Grols  Sans  Nombre. 
{^i-ants  Com-  ^  Saiind.  344.  Mich.  21  Car.  2.  B.  R.  Meilor  v.  Spateman. 
moil  to  a  _ 

Mayor  and  EiirgciTcs  for  all  their  Cattle  in  fuch  a  Place  it  is  good  and  in  Gror*,   and  not  appurtenant, 

and  gave  ludgmciu  accordingly. • 2  Jo   1 1  5.  S.  C.  by    Name  of  ^tilpU'S  U.  il9litCl">  where  the 

Prelcription  was  laid  for  the   Hearts  of  every  Freeman  of  the   Vill,  and  the  Court  held  the  Prefcrijj- 

-tion   good,  aid    judgment  accordingly,  and  cited  21  E.  4.  06. 2  Show.  43.  S.  C. —2  K'.-b.  527. 

pi.  26,  S  C.  adjornatur. 2  Keh.  550.  pi.  28.  S  C.  and  per  Cur.   this  is  a  void  Prefcription,  yet  may 

be  <;ood  by  way  of  Grant.  But  adiornatur 2  Keb.  570.  S.  C.  adjudged *  2  Sid.  8;.  Tria 

1658.  Stone.'.by  V  JMiillenden.     S.  P  but  being  after  a  Verdict   it   was  iield  good. -S.C,  cited  by 

Twifden.    I^lod.  ;.  in  Cafe  of  the  Corporation  of  Derby. 


;-44-      4.  Jppendancy  and  Prefcription,  or  Matter  which  proves  Appendancy 
and  Prelcription,  fliall  be  double,     Br.    Double,   pi.   115.  tii.es   11  H. 

Jir  Prefcrlp-  ^-     '  1- 

tion.  pi.  y6. 

cites  S.  C. — S.  P.  tl.atit  is  double.  Br.  Double,  pi.  1 51?.  cites  4  H.  6.  15. — S  P.  Br.  Prefcription,  pi. 

25.  cites  it  as  faid  ellewhere,- — But  Br.  Dou  :le,  pi.  111.  cites  15  H.  8.  i  5.  contra. 

.PH/it  Teems,      5.  In  Writ  of  Mcfnc^  the  FJaintifF  counted,  that  Land  is  held  of  the 
that  Gift  in    Defendant  by  the  Plaintiff'  Jbhot  of  E.  m  Frankahnoign,  and  that  the  De- 
J-r,)>it.rl-       fa/dant  and  his  ^incefhrs  whofe  Heir  &.C.   have  acquitted  the  Plaintiff  and 
'qime  of'Ak-  hisPredecefoYS  Ttiiie  out  0/  &c.  and  If  He  taken  tipcn  thePrefcriptun  ;  Excep- 
>7/o);,  and      tion  was  taken,  that  it  was  jeofail  by  reafon  of  the   Doublenels,  viz. 
Prefriftion    the  Frankdlmoignc,  and  the  Prefcripttcn,  where  each  of  them  is  a  good 
dT'bi''^  B-  ^^^^^  of  Acquittal.     And  per  Choke,  it  is  nut  double,  becaufe  the  lifue 
Double  pi.'  *®  taken  upon  the  one,  viz..  the  Prefcription,  and  fo  he  relies  upon  one  to 
S;.  cites  59    a\oid  the  Doublenels.     But  per   Prifot,   it  is  not  double,  becaufe  the 
H.6.  29.       Frankalmoign  is   not  fiifficient  Caiife  by  itfl(;  For  he  does  not  peiv  the 
Gift  in  Frunkalmoigrie,  and  therefore  it  pall  he  taken  a  Gift  given  before 
T'ltne  of  Memory,  and  then  he  ought  to  prefcribc  m  the  AJanner  of  Acquit- 
tal, and  then  the  Prefcription  is  the  Elic6t  &x.  and  fo  lingle ;;  and  at- 
ter  it  was  awarded  good,  and  the  Plaintiff  recovered  the  Acquittal.  Br. 
Double,  pi   83.  cites  39  H.  6.  29. 
Cro.  E.  784.       6.  It  a  Ccpy holder  lays  a  Prefcription  in  the  Bifliop  of  W.  Lord  of  the 
^■*---  Manor yor  himfelf  and  his  Tenants  to  be  difcharged  of  Tithes,   and  then 

prefcribes  for  the  Copyhold.  Though  here  is  a  Prelcription  upon  a  Pre- 
fcription one  in  the  Copyholder  to  make  his  Eftate  good,  and  the  other 
in  the  Lord  to  make  his  Difcharge  good,  yet  it  was  held  that  a  Prohibi- 
tion lay  lor  the  Copyholder.  Yelv.  2  Paich.  44  Eliz.  B.  R.  Croucher  v. 
Fryar. 

C^^^js.,,./^  7-  In  Trefpafs  the  Defendant  claimed  Ef  overs  appendant  in  thePlacewhere 
As  to  Eflo-  &c.  and  prefcribed  that  he  and  all  thofe  whole  Eltace  &:c.  have  had  Ef- 
vcs.  rovers  in  the  Place  &:c.  appendant  to  fich  a  Houfe  Time  out  ol' Mind, 
^''a'^P^y'^  and  admitted  tor  good,  viz.  the  Appendancy  and  Prelcription.  Br.  Pre- 
fcription, pi.  Icription,  pi.  87.  cites  21  E.  j.  40,  41. But  by  11  H.  6.  11.  this  is 

96.  cites  S.     *  Double,  and  with  this  agrees  4  H.  6.    13.  Ibid. 
C.    But  if 

hefays,  that  he  and  thofe  whofe  Efiate  &c.  in  a  Heiife  in  C.  have  had  EJlozers  in  C.  this  is  well  ;  per  Cott, 
Pafton,  and  Martin;  for  this  is  not  Appendancy. 

^">s.A/"1  8  Prefcription  in  the  Defendant,  that  he  and  all  others  'Tentiram  illam 
^°^\_  prius  habentes  ought  and  ufed  to  cleanfe  fuch  a  Ditch,  and  therefore  the 
I  t-^v"  "J  ^^'^'■'^  was  abated  i  For  it  jhouldbe,  that  he  and  his  Predeceffors  T^inic  out 
s!r  Br.  Ac-  of  Mind,  whofe  EJtate  the  Defendant  has  &c.  and  becaule  not  &c.  there* 
tion  furle     tore  the  Writ  was  abated.  Br.  Prefcription,  pi.  16.  cites  22  H.  4.  7. 

Cafe,  pi.  4-- 

cires  12  H.  4,  7.     [But  it  is  mifcited  in  both  Places,  ani  O-ould  be  12  H.  4.  S.  pi.  15] 

9.  In 


Freicription.  287 

9.  In  Anumty  the  Pluintili"  counced  by  Prefcription  j  the  DcfauLvn  {-.'"'f\"" 
(k'e'-jo'd,  that  it  commenced  Ij  Compci/iiion^  thcreibre  he  ought  to  count  upon  ^'^^^^  ^'^^\i 
the  Compolition.  Judgment  of  the  Count.  And  Per  Newton  and  Palton,  ^j.  i„  j,„iuit'y 
if  the  Compolition  be  bejere  T'lvie  of  Memory^  it  cannot  be  try'd,  and  />>  Prcfcripti- 
therelbre  the  Count  good ;  and  if  it  commenc'd  within  I'ime  of  Alcniory,  "">  *^'^  ^^- 
the  Jury  iliall  try  it.    Br.  Prefcripcion.  pi.  22.  cites  19  H.  6.  75.  -{[^^^'"I;  ^J^." 

riliial  Mtv:,  pleatieii,  that  the  Predecejfor  of  the  Defendinit  in  the  T'ime  of  E.  I.  pjmited  the  Annuity  to  the 
Preikiejjoi- of  the  Plaintiff,  anii  to  his  SucceJJor!,  '■xithout  Jjfent  of  the  Chapter,  Abloac  hoc,  thnt  the  Pl.iin- 
iiff  ,Mui  Us  P>ri!e<eJjors  were  fr  fed  before  this  Tiwe,  7ime  out  of  Minii ;  for  otlierwilc  rlic  Lay  Gents  will 
not  imiuiri;  of  longei- Time  than  they  tliemfclvcs  can  remember  ;  and  therefore  ihi'i  Speiilil  Ijfiu  was 
taken  and  admitted  good.     Br.  Prefcription.  pi.  5.  cites  53  H.  6.  17. 

10.  In  Affife  of  Common  Appendant,  the  Jppendancy  is  fufficient  with- 
out Prelcription  ;  tor  this  implies  a  Prefcrtptioa.  Br.  Prefcription.  pi. 23. 
cites  22  H.  6.    10. 

1 1.  A  Man  iliaJl  not  fiiy  //;  Jffife  of  Rait,  that  he  and  all  thufe  whofe 
FJhtte  he  has  in  a  Mcjfitage  hnve  had  20  Shillings  Rent  ijjuing  out  of  the 
Laud  of  the  Defendant  Time  out  of  Mind,  if  he  does  not  c'laun  fuch  as  Ap- 
pendant to  the  Melliiage,  or  by  Rea(bn  of  the  iVlelfuage.  Br.  Prefcrip- 
tion. pi.  26.  cites  22  H.  6.  42. 

12.  In  Treipafs  upon  the  Cafe,  the  PlaintifFprefcrib'd  in  himfelfand 
his  Predecelfors  to  have  Leet  in  D.  with  all  Pro/its  of  it  once  in  a  Tcar^ 
fcilicet,  Such  a  Day  after  Eafler  ;  and  that  he  lent  his  Srew^ard  to  hold 
Leet  there  fuch  a  i3ay  &c.  and  the  J3efendant  dillurb'd  him.  The  De- 
fendant, hy  Protcjldtion  that  he  is  Lord  of  the  Fill,  and  that  the  Plaint  iff' 
has  not  any  fuch  Leet  there,  pro  Placito  fays,  that  He  and  his  Predeceffors 
have  had  Leet  there  Time  out  of  Mind,  once  in  a  Tear,  fuch  a  Day.  after  Mi- 
thaelmas  ;  and  that  the  Plaintiff'  has  had  Leet  there  fuch  a  Day  after  Eajfer 
Time  out  of  Mind,  and  has  ufed  T'lme  out  of  Mind  to  give  N'ctice  to  the 
Bailiffs  of  the  Defendant  15  Days  before  the  Leet,  and  thai  he  fliall  be  with 
him,  and  that  the  Defendant  ihall  have  the  Moiety  of  the  ProHts  i  and 
that  it  he  will  hold  the  Leet  there  in  other  Manner^  then  the  Delendant 
and  his  Predecelibrs  have  ufed  to  dillurb  them  Sic.  And  becaufe  he  did 
not  give  Warning  by  15  Days  &c.  therefore  he  diiturb'd  &c.  Danby  J. 
thought  the  Prefcription  of  the  Dijiurbancc  is  void,  tor  he  has  not  alleg'd 
that  he  ever  dijlurb'd  him ;  and  the  Prelcription  cannot  be  without  Ule, 
and  Ufe  cannot  be  without  Matter  in  Fact,  and  he  has  not  alleg'd  any 
Difturbance  done  in  Faft;  Qusere,  tor  it  was  well  debated  and  adjourn'd 
without  Judgment,  but  none  fpoke  to  the  Prefcription  but  Danby.  Br. 
Prefcription.  pi.  41.  cites  38  H.  6.  16. 

13.  It'  a  Man  prcfcribes  to  have  Rent  with  Dijlrefs,  it  is  no  Pica,  that  Replevin 
■the  Rent  has  been  paid  all  Times  by  Coertion  of  Diflrefs,    becaule  the  Rent  ^^-  ^^^  ^'^' 
has  been  continued  Time  out  ot  Mind,  and  cannot   be  a\oided  by  Coer-  ^^yo^e^    fo^ 
tion,  tho'  it  commenced  by  Tort^  by  all  the  jultices.     ^x.  Prelcription.  'ti,at  he 'was 

pi.  75.  cites  13  E.  4.    6.  feifedin  Fee 

of'  the  Rent, 
itttd  that  he  and  all  Sec  had  ufed  to  dijfr.vn  for  it  in  the  fnid  Land  &c.  It  wa';  held  clearly  per  Anderfon 
and  Glanvile,  tliat  the  Avowry  was  not  good ;  for  he  prcfcribes  in  th«  Diilrels,  and  not  in  the  Rent  it- 
lelf.    Cro.  Elii.  675.  Palch.  41  lilii,  C  B.  S>tcphen!.  v.  Lewis. 

14.  The  Sheriff' of  IV.  \prcfcrib'd  in  5  Shilltngs  Rent  in  fuch  a  Vill  for  all  ^r^-j  the  Pre- 
Sheriffs  &c.  and  it  was  held  no  Prefcription  ;    \ot  he  is  only  as  a  Tenant  at  /r"i?'u"".:. 
Will,  by  which  he  prefcribed,  that  it  has  been  ufed  T'lrac  out  of  Mind,  a.s ,/ ^  ^-,,,,  ^,1^^ 
above,  and  that  they  have  ufed  to  dijlrain  for  it.     And  this  wa.s  held  good,  his  Progeni- 
and  fo  the  IHue  iliall  be  taken  upon  tlie  Ufage.     Per  Littleton.     Br.  Pre-  torsh,%-^e  had, 
fcription.  pi.  28.  cites  15  E.  4.  29.  \^f^  '^"\°'' 

of  the  Vill  &C.  to  tlte  Ufe  of  him  who  jball  be  Sheriff  for  the  q,me.     Ibid, 

15.  If  a  Man  will  allege  a- Prefcription  or  Cuftom,    he  ought  xn  fet 
forth.  That  it  was  put  in  Ure  wit  hi  n  Tune    of  Memory.     Per  Godfrey 

Godb.  S5-   Mich.  28  &  29  Eliz.  in  Joyce's  Cale. 

16.  If 


2  88  Prcfcription. 


i6.  It  one  prefcribes  to  have  the  Dying  of  the  Clothes  in  fiich  a  Plact. 

he  OLighc  here  of  Neceffity  efpecially  to  avcr^  that  he  is  fufficmit  lor  to 

dye  them  J  as  the  Cultoni  which  one  hath  litTorcelter,  to  have  &Ccu!mon 

Bakehoufe,  he  ought  to  aver,  that  his  Ovc?i  there  is  fufiaent  to  ferve  them 

alii    and  this  was   Sir(55eQrtJC  JfiirUlCr'Si  CilfC  Ij*  QolOOli*    Per  Coke 

Ch.  Jult.  3  BuIlL  6i.  Mich.  32  &  33  Elix.  in  B.  R.  Eall  v.  Collins. 

p ''("■.  ^'  '■%'{      ^7-  A  CopyboUer  IhaJl  prclcribe  by  an  UJttatum  ejl  atratnjl  his  Lord.   But 

B  R  Pe^arcc  ^^'^'"./^  '^  Stranger  he  ihall  prefcribe  tn  Name  of  the  Lord  hiniiclt;    Per  tot. 

V.Bacon    s  Cur.1M0.461.  Hill.  39  Eliz.  Anon. 

C   [n 

Trc<^:ii;  for  'fakiim;  Turf  hi  the  ir.tfie  of  the  Plaintiff;  the  Defendant  juftified,  for  that  Time  out  of 
Mind  L'fLittmi  iiiit,  th.if  every  'fen.vit  for  Tcvs  of  an  arnient  'I'cnement  in  the  laid  Manor  had  Common  of 
VKrkirymiUcW-Mlc  &c.  ard  that  he  vas  pofTcfled  of  an  ancient  Tenement  and  Clofe  &c  which  was 
leafed  to  him  for  a  certain  Term  of  Years,  with  all  Commons  thereunto  appertaining.  But  adjiid"'d 
that  tho'  this  Common  was  appurtenant  to  the  Mefluage  and  Clofe,  yet  the  LclTce  c3!iiiot  have  it  by  diis 
Prelcription  ;  for  an  rjao.e  ctigl  t  to  he  peypetuat,  w  hich  cannot  be  in  this  Cafe,  becaufe  it  is  interrupted 
by  every  new  Lea'e  ;  bcfides,  Leffee  for  Years  can  never  have  Right  to  a  Common  by  Prcfcri-tion 
becau'e  there  is  u  certain  Commencement  and  Determination  of  his  Ellatc  ;  and  an  Ulage  annex'd  to  fuch 

an  Elf  ate  cannot  be  good      i  Bulft.  17.  Hill.   7  Jac.   B.  K.  Grimes  v.  Peacock  i  Brownl.  zzi.  i,. 

C    Argu"d,  but  adjourn'd. 

18.  InTrefpafs  for  chafing  Sheep  &c.  the  Defendant  juftified,  for 

that  the  Place  where  &c.  was  the  Freehold  of  JohnTheed  ^  The  Plain- 

tili"  replied,  and  prefcrib'd  for  Common  for  60  Sheep  Levant  ""and  Conchant 

upon  his  'tenements  ;  and  avers,  that  he  put  in  60  Sheep  &:c.   to  eat  the 

Grafs  and  ufe  the  Common  &c.     The  Defendant  travers'd  the  Prefcrip- 

tion,  which  was  found  for  the  Plaintiff^  and  it  was  mov'd  in  Arrell  of 

J\i?ch  J-,^J-  J  "dgnis"'^?  ^^^^^  '^^le  Plaintii;'*had  not  alleged  that  the  60  S.'-eep  which  he 

B  '.F  ^Frin"c  P'"""  '.'l*^'^*^  Place  where  &c.   were  levant  and  conchant  upon  his  Tenements  ; 

V.  Tringer.    ^"d  if  they  were  not,  then  the  Defendant  might  i;' vvfully  diltrain  tiiein 

S.  P.  Ad-     Damage  feafanti  fed  non  Allocatur  i  lor  the  Defendant  might  have  taken 

^c%\  ~T~  A^^''^""g^  °^  '"^  ^Y  a  Demurrer  or  a  Rejoinder  i  but  when  he  rejoin'd 

C  B    I'l"      "^""^  travers'd  the  Prefcription,   which  is  round  againll  him,  the  Want  of 

/14  cites's.  ^l'  Averment  is  aided  by  the  Statute  of  Jeofails.     Saund.  226.    Pafch.  21 

C   and  fais  ^^^-  2-  B.  R.   Stcnnet  v.  Hogg. 

that  the  GilT: 

of  the  Bar  is  the  Right  to  burthen  the  Plaintiff's  Soil  ;  and  when  the  Plaintiff  takes  Iffue  on  that  and 
controverts  that  Right,  he  admits  there  was  not  any  Trefpals  in  the  Ca'e,  and  that  the  Defendant  had 
fuch  a  Riglit.  He  likewile  a^lmits,  that  the  Defendant  has  brought  himlelf  within  that  Ric^ht  b'-caufe 
u  would  have  been  Nugatory  to  liave  denied  that  Right  of  Prefcri;  tion,  which,  if  it  had  Wn  found-, 
the  Plair.tift  had  not  brought  hinifelt  within  it;  and  therefore  the  Traverfe  ot  fuch  Gift  of  the  Bar  is 
waved,  and  an  Admittance  of  fuch  collateral  Circumftances. 

SC^V'd"'  ^^'  I"  ^^P^"^''"3  the  Plaintiff  prefcrib'd,  fetting  forth,  that  there  are 
the  Cou"t  '^''"f -^  Freehojd  and  Copyhold  Tenements  in  the  Manor,  and  that  he  tsfeifed  of 
feem'dtoin-"^  Vreihold  Tenement.^  and  that  he  and  the  other  Freeholders^  and  all  tlrofe 
cline  that  whofe  Efiate  they  have.  Time  out  of  Mmd,  fmitl-cum  the  Ccny holders  h^'ve 
thz  ?\t^y,z,  had  folam  &  fep.ralem  Pafturam  of  the  faid  Place,  Omni  Anno  Omni 
Sood.  Tempore  Anni ;  and  then  he  pleads  a  Ciijiom,  that  the  Copyholders  SmmU 

cum  the  Freeholders  Time  out  of  Mind  have  had  folam  ^  feparalem  Pafln- 
ram  Omni  Anno  Omni  Tempore  Anni  &c.  The  Plaintiff  demurr'd"o-e- 
nerally  ;  Exception  was  taken,  ilt,  That  laying  the  Prefcription  in  him- 
felt  and  all  the  Freeholders  is  not  good ;  for  that  every  one  ought  to 
prefcribe  by  himlelf,  and  not  he  for  himlelf  and  all  the  other  Freehold- 
ers. 2dly,  He  prelcrib'd  for  himfelt  and  all  the  Freeholders,  Simul- 
cum  the  Copyholders,  and  yet  he  laid  aCuftom  for  the  Copyholders,  Si- 
mul-cuni  the  Freeholders,  and  fo  mix'd  a  Prefcription  and  a  Oiflom  toge- 
ther, which  cannot  be,  for  the  one  is  laid  in  the  Perfon  and  the  other' in 
the  Place ;  but  that  he  ought  to  have  faid,  That  he  and  all  tliofc  whole 
Eltate  he  has  limul-cum  ttie  Freeholders  and  the  Copyholders  Time  out 
ot  Mind,  have  had  &c.  But  the  Court  over-ruled  the  Exceptions  up- 
on a  Cale  ot  iaCttlCbOraUQ;})  \i>  i^CUsi,  Trin.    1654.  where  fuch  Plead- 


i;itr 


Prefcription.  .^^9 

iiig  was  adjudg'd  good.     Lev.  268,  269.  Trio.  21  Car.  2.  B.  K.   Pocter 
V.  North. 

20.  In  ''/refpafs  ior  breaking  hisClofein  L.  iiiD.  on  therftof^/)>77,  21  Car.  2. 
the  Dsftiidaut  pleaded  a  Prefcription  for  Coimyion^  and  jujiified  the  putting 
in  his  Cattle  on  the  Firfi  of  Aiigtifi,  20  Car.  2.  ^//<^  £/?  eadcm  Tranigrellio 
&c.  and  upon  Demurrer  it  was  objefted  to  this  Plea,  that  the  Plainciif 
had  laid  the  Trefpais  to  be  done  on  the  Firll:  of  April  21  Car.  2.  and 
the  I^et'endant  julliiied  on  the  Firll  of  Augull  20  Car.  which  varies  from 
the  Time  in  which  the  Trefpafs  was  laid  in  the  Declaration,  whereas 
he  ought  to  juitity  on  that  very  Time  ;  but  it  was  adjudg'd,  that  the  Plea 
was  good  in  Subftance,  becaufe  the  Defendant  had  averr'd,  that  it  is 
Eadem  Tranfgreliio  ot  which  the  Plaintiff  complained  i  and  the  Plain- 
tiff having  demurred  generally  to  it,  this  is  but  Matter  of  Form,  and 
not  Subftance,  ot  which  no  Advantage  can  be  taken  upon  a  general 
Demurrer.  And  the  Defendant  had  Judgment.  2  Saund.  4.  Hill.  21 
&  22  Car.  2.  B.  R.   Mellor  v.  Walker. 

21.  Where  one  pleaded,  that  Seifitns  fait  of  an  Hotife  and  20  yJcres  of 
L:7nd^  this,  it  was  faid,  muft  be  intended  of  a  Fee  Simple  j  and  when 
he  afterwards  fays,  De  Jure  habere  dehuiffet  Connnon^  thoie  Words  amount 
to  a  Prefcription.  Arg.  4  Mod.  420.  in  the  Cale  of  «^tl*ClOC  llt'Bpit*  eitea 
Pafch.  33  Car.  2.  B.  R.  Rot.  109.   Brooking  v.  Bond. 

22.  The  Pbintiffs  intitlc  tkcmfehcs  to  each  of  them  a  Mill.,  and  declare 
that  they  had  ufed  to  repair  the  faid  Mills,  and  prefcnbe,  that  all  the  In- 
habitants within  the  Manor  had  tfed  to  grind  omne  Frarnentian  that  they 
[pent  &ic.  at  their  Mills,  or  at  the  Mill  of  one  of  them.      Two  Exceptions 
were  taken  on  the  Declaration  by  the  Courts  for  as  this  Prefcription  is 
alleg'd,  polhbly  one  of  the  Plaintitts  might  have  no  Caufe  for  Aclion  ; 
for  if  A.  has  an  ancient  Jvlill  where  the  Inhabitants  ufed  to  grind,  and 
B.  erefts  a  new  Mill  in  the  fame  Town,  it  may  be  truly  fu'd,  that  the 
Inhabitants  are  to  grind  at  the  Mills  of  A.  and  B.  or  the  Mill  of  one  of 
them,  altho'  they  were  not  oblig'd  at  all  to  grind  at  the  Mill  of  B.  per 
Hale  Ch.  J.  but  to  intitle  tiiem  both  it  ought  to  be  alleg'd,  that  all  the 
Com  not  ground  at  the  Mill  of  A.  ufed  to  be  ground  at  the  Mill  ofB.  and 
that  ail  the  Corn  not  ground  at  the  Mill  of  B.    uled  to  be  ground  at  the 
Mill  of  A.  and  then  both  had  been  intitled.     (2d  Exception)  They 
prelcribe  to  grind  omne  Frumentum  fpent  in  their  Houfes,  which  is  not 
good  ;  for  it  may  be,  they  fpent  Corn  and  never  ground  it  all  i  as  what 
they  give  their  Pigs  and  Hens,  and  make  Frumenty  with,  which  they 
lliall  not  be  obliged  to  grind  ;  but  it  ihould  ha\e  been  laid,  Omnia  Gra- 
nd molienda  ;    and  Twilden   cited    apllffe  auB  Ci)aiieflyOltI)'0   Cafe ; 
where   the    Prefcription  was  adjudg'd  bad  tor  this  Point.       judgment 
for  the  Defendant.     Freem.  Rep  20.  pi.  22.   Mich    1671.   Harve}- and 
Corydon  v.  VV'illoughby,  in  C.  B. 

23.  A  Man  hath  an  Acre  of  Freehold  ///  a  Great  Field.,  to  which  Com-  Frcem.  Rep. 
luon  doih  belong.,  now  he  cannot  in  his  Prefcription  lay  it.,    that  he  hath  ^.'f  ':1^" 
Common  in  the  whole  Field,  but  in  fiich  a  Part  of  the  Field,  as  in  that  (roftiit? 
toziuirds  tbeEaJr  Part  orlVcfl^  Part  of  the  Field  ;    becaufe,  if  otherwife,  he  Cafe   7  Kep. 
lliould  then  extend  his  Prefcription  to  his  own  Land,  which   would  not  1  Tiiat  a 
be  good  ;  and  becaufe  he  had  here  laid  his  Prefcription  to  the  whole  j^'^" '"d 
Field,  he  was  nonfuited  &c.     Clayt.  19.  pi.  32.    Conyers  v.  Jackfon.      inrermix'dm 

a  Common 
Field,  where  he  prcrcrib"d  for  Common  ;  and    he  laid    his  Prefcription   /;;    aU  the  FL'ld  except  Lis  c'v:>n 
Laiu'.s.     The  Court  agreed  that  Cafe,  and  faid.  That  that  Jiidpjment   was  affirm'd  lor  good  Law  in  the 
Calc  between  the  ilorD  Clare  and  ^ir  S^ljOJUci^  CllllliaiUlon  j    which  was  the  fame  Cafe. 

34.  In  Trefpafs  for  Breaking  his  Clofe,  and  Fifhing  in  his  fe\  eral 
Filheryi  the  Detendant,  as  to  the  Clofe,  pleaded  that  ttie  Earl  of  War- 
wick wasfeifedin  Fee  of  the  Manor  of  H.  whereof  one  Acre  covered 
with  Water  was  Parcel  and  contiguous  to  the  faid  Clofe,  and  lb  pre- 
fer ibes  to  have  a  neceffary  Eafement  to  catch  Fijh  in  the  faid  fi-ater,  and  lor 
that  Purpofe  to   crtter  into  the  faid  Clofe  and  fpread  Nets  &c.    That  the 

4  D        '  Earl 


290 


^refcription. 


Allege 

ieilin. 


Earl  granted  this  Manor  and  Clofe  to  King  E.  6.  from  whom  it  came  to 
Queen  Mary,  who  granted  it  toT.  Lucy  in  Fee,  with  all  \\  ays,  Emolu- 
ments, Commodities  and  Hereditaments  &c.  and  fo  derives  a  Title  to 
hinifelf  from  the  laid  T.  Lucy,  and  juftifies  the  Entry  in  his  own  Right 
&c.  Upon  Demurrer  it  was  objeiStcd,  That  this  Plea  was  ill,  becaufe  the 
Defendant  has  prefcribcd  for  a  ncceliary  Eafement^but^of^  not  fay  that  it 
luas  iiecefj'ary  forCatchtng  Fijh  ;  It  was  anfwered.  That  the  Word  Eafemetit 
is  known  in  Law,  it  is  a  Genus  to  leveral  Species  of  Liberties,  which 
one  may  have  in  the  Soil  of  another,  without  claiming  any  Interell  in 
the  Land  itfelf.  And  per  Cur.  it  is  a  known  Term  in  Law  ^  But  here 
the  Thing  itfelf  is  fet  forth,  (viz.)  to  Catch  Fifh  &:c.  and  certainly  no 
Inllance  can  be  given  of  a  Prefcription  tor  fuch  a  Liberty,  by  fuch  a 
Word  or  Name  ;  therefore  a  Rule  was  made  to  {zt  the  Preicription  right, 
and  try  the  Merits.  4  Mod.  362.  Mich.  6  W.  &  M.  B.  R.  Peers  v. Lucy. 

25.  Dc  Jiitiqtio  in  a  Count  is  a  Prefcription.  Per  Holt.  Ch.  J.  Skin. 
621.  in  the  Cafe  of  Stroud  v.  Birt. 

26.  Where  one  intitles  himfelf  to  a  Duty  and  Remedy  by  Prefcription,. 
he  muft/f?  out  his  Remedy  •wholly;  Indeed  if  you  prefcribe  to  a  Duty,  you 
.may  ha\e  Debt  for  it  without  Preicription,  but  you  cannot  dijirain  with- 
out iti  And  if  you  prefcribe  for  a  Duty  andDiltrefs,  you  cannot  by  virtue 
thereof y^//,  without  a  Prefcription  for  felling  too  ;  becaufe  a  Preicription 
may  betodiftrain  without  felling.  Per  Holt.  12  Mod.  329. 


Ir  is  a  good 
Title  in  Jf- 
fife  of  Rent 
that  the 
Pluhitiffand 
nil  feifed  of 
the  Mavor  of 
D.  have  been 
feifcd  of  the 
Rent  time 
cut  of  Mind, 
as  Parcel  of 
the  Jfaficr. 
Per  Hull 
(^uod  Hank 


1  Show.  195. 
pi.  196 
Pafth.  U- 
Car.  2   B  R. 
S.  C  Stay'd 
till  moved 
on  the  other 

.Side. 

S.  C.  that 
Judgment 
was  ancfted 


27.  A  Man,  in  Replevin,  prefcribed  that  the  PlaintilFand  his  Ancef- 
tors,  and  thole  whole  Eftate  he  has,  have  had  Common  in  his  Land  where 
&c.  and  that  the  Plaintiff'  and  his  Ancejlors  have  tifed  to  pay  los.  Rent  per 
jinn,  to  him  and  his  Anceflors/or  the  fame  Ctmmon,  and  lo  avoixiedfor  los. 
and  good,  Notwithllanding  that  he  did  not  prefcribe  that  he  and  bis  An~ 
cejlors  &C-.  have  had  the  Rent,  but  that  the  other  has  paid  it,  and  is  all 
one,  per  Cur.  quod  nota,  and  this  is  not  Rent,  but  Annuity,  For  he  can- 
not haveAffile;  Becaufe  he  cannot  have  Rent  out  of  his  own  Land,  and  yet 
a  good  Prefcription  per  Cur.  But  he  cu?ht  to  allege  Stiftn  per  Cur.  and  fo 
(CQ  Vteicxi^iion  to  dijlratn  in  his  o'-jun  Land.  Br.  Prefcription,  pi.  i.  cites 
26  H.  8.  5. 

concefiit.  Br.  Prefcription  pi.  16.  cites  *  22  H.  4.  7. *  It  fliould  be  12  H.  4.  S.  pi.  15. 

28.  Aflion  upon  the  Cafe,  That  whereas  betwixt  the  Plaintiff's  Houfe 
and  the  Defendant's,  there  was  a  little  Puce  of  Ground,  called  a  Twit- 
ch.t\\,upon  -which  he,  and  all  thofe  whofe  Eftate  he  hath,  had  ufed  to  fet  their 
Ladders  to  repair  their  Houfe,  and/^j'J,  that  he  Po{]e[ftonatus  eft  of  the  faid 
Houfe  &c.  and  that  the  Defendant  ere6ted  a  Wall  there,  Per  quod  he 
could  not  fet  his  Ladder;  And  per  Curiam,  the  Plaintiff  hath  not  well  pre- 
fcribed, for  he  hath  laid  the  Prefcription  in  himfelf,  and  thofe  whofe 
Ellate  he  hath,  and  fays,  that  he  Pojjfffionatus  juit,  which  cannot  be  in- 
tended hut  of  a  partictilarRJiate,  as  a  Leafe  lor  Years,  and  a  Leflee  ought 
not  to  prefcribe  in  his  own  Name:  Rainsford  faid  If  he  had  faid  Seilitus, 
it  might  have  been  well  enough.  >V  yldeliiid.  It  mull  have  been  Setfitus 
in  Feodo,  or  elfe  it  might  have  been  butanEltate  for  Life  3  But  if  he  had 
laid  it  in  the  Occupiers,  perhaps  it  might  have  been  good,  being  but  an 
Eafement.  Freem.  Rep.  357.  pi.  453.  Mich.  1673.  Matches  v.  Broughtun. 

29.  Plaintiffdeclared,  That  he  was  feifed  of  a  Tenement,  and  that  he 
and  all  thofe  whole  &c.  had  ufed  to  fetch  Pot-Water  from  the  Deten- 
dant's  Clofe  i  Ilfue  was  taken  upon  the  Prefcription  ;  and  found  for  the 
Plaintiff;  But  the  Court  held  the  Declaration  was  ill,  becaufe  the  Plain- 
tiff did  not  fet  forth  that  he  was  feifed  in  Fee  ;  For  a  Prefcription  cannot  be 
annexed  to  any  thing  but  to  an  Eftate  in  Fee  ;  therelore  this  is  a  Deleft 
in  Subftance,  and  not  aided  by  a  Verdift.  And  the  |udgment  was  ar- 
refted.  2  Moti.  318.  Tr.  30  Car.  2.  B.  R.  Sccblev.  Skcitoa. 

for 


Prcfcription.  291 


for  not  fliewing  How  feifed  ;  Foi-  unlelj  he  was  ieiled  in  Fee,  he  could  not  prcfcribe.    And  upon  hci"? 
moved  again  by  Ticnuin,  the  Couit  held  their  former  Opinion.  Skin.  51S.  pi.  5.  PaJch    54.  Car.  z.h  K. 

30.  In  cafe  the  PLiintilT  declared.  That  the  Office  ofPoll-maftcr  was  r\A--0 
an  ancient  Office^  to  -'jjhich  ftveral  Fees  were  belonging  tor  carrying  Letters  j  '^V^  '■'>'".? 
but  did   mt  fay  they  had  belonged  T'nne  out  of  Mind ;  And   it  was  held'  ^/-"^  ""^  "^ 
well  enough,  for  being  alledged  tobe  an  antient  Office,    and  that  fuch 
Fees  did  belong  to  it,  he  need  not  prcfcribe  for  them.  Latch.  87.  Lord 
Stanhope,  v.  Ecqueiier. 

31.  One  prefcribed,  That  all  x.\\q  Occupiers  of  B  Hah :ier nnt  ^  habere 
confncvernnt  Common  in  fuch  a  Town  in  C.  Ratione  Vicinagii^  but  did  not 
allege  I'ime  out  of  Mind ;  which  the  Court  held  to  be  ill,  becaufe  the 
Prcfcription  is  the  Foundation  for  Common  of  Vicinage  ;  but  'tis  otherwife^ 
wherea  Man  claims  Common  Af-pendant ;  for  in  fuch  Cafe  the  Plea  would 

be  *  double,  if  the  Defendant  prefcribed  to  it.  Latch.  161.  Jenkins's  Cafe.  »q  . 

32.  Trefpafs  for   taking  and  carrying  away  his  Cheefes,  Defendant  (doub^i  ^ 
juitified  tor  that  he  vja.s  feifed  in  Fee  of  Chipping  Sudbury,  and   of  an 
ancient  Market  there  held  everyThurfday,and  that  he  and  all  thole  w  hofe 
Eltates  he  hath,  had  tifed  to  have  a  Penny  J  or  every  Hundred  of  Chetfe  expofed 

to  Sale  in  the  Market,  in  the  Name  of  the  Pitching  Penny ;  And  upon  i3e- 
nial,  to  dittrain  &c.  And  that  a  Hundred  of  Cheele  being  expofed  to 
Sale,  and  i  d.  being  demanded  and  not  paid,  he  dillrained.  L'pon  De- 
murrer it  was  objetted.  That  the  Defendant  had  no:  made  a  fufficienc 
Title,  not  having  laid  an  Ulagc  Time  out  of  Mind,  but  only  by  Q^ueEllate 
he  hath,  and  the  whole  Court  was  of  that  Opinion  .  And  Judgment  for 
the  Plaintiff  2  Jo.  227.  Mich.  34  Car.  2.  B.  R..  Goodwin  v.  Brooks. 

33.  Cafe,  and  declared.  That  he  was  feifed  of  fuch  Lands  &c.   And  f^^^-^^^^ 
that  he  and  all  t  ho  fe^  whole  Eftate  he  hdd  Simiil-cam  quibufdam  aliis  ^^-\^'^^^^^^'  , 
na.'tib/is.  Tenants  by  Copy  of  Court-Roll,  dc  Aiancrio  hi  J.  'Time  out  of^'^^ 
A'lind  have  had  folam  Pafluram  in  ihch  a  Clofe,  and  the  Defendant  had 
dilturbed  him  ;  and  upon  Demurrer,  it  was  obje6ted,  to  the  Prcfcription, 

that  (cum  aliis  Tenentibus)  is  uncertain^  both  as  to  their  Kind  and 
Number  ^  And  that  de  Manerio  in  J.  is  uncertain  alfo  what  Manor  is  in- 
tended, and  every  Manor  has  a  Name,  and  there  may  be  feveral  Manors 
in  one  Vill ;  For  which  Reafons  the  Court  held  the  Declaration  ill,  and 
gave  Judgment  lor  the  Defendant.  2.  Lev.  178.  Mich.  28  Car.  2.  B.  R. 
Underwood  v.  Saunders. 

34.  The  Declaration  was.  That  he  was  feifed  of  a  Me[fuage  or  Tcnemefit, 

■■'/id  that  He  and  Jill  ^3c.  by  Himfelf  or  Servants  had  fetched  Water  ti'c  Ex-  2Sho%v.  rp?.? 
ception  was  taken  that  Mefiuage  QOr')  Tenement  is  uncertain,  and  {o  ^'  ^'  f*;^.^" 
(by  himfelf  or  Servants)  but  Nou  Allocatur.  Skin.  36.  pi.  3.Pafch.34  Car.  rJa!,°^oo" 

2.    B.  R.  Scobell  v.  Skelton.  Tenement, 

v.- us  held 
well  enough  ;  Becaufe  every  Mefuage  is  a  Tenement.     And  that  the  other  Exception  was,    becaufe  it 
was  for  Him  and  his  Servants,  whereas  his  Servants  had  no  filiate;  but  lield  well  enough. 

35.  In  an  A£tion  for  Toll,  a  Prefcriprion  was  laid  to  have  a  ^uart  de 
quoltbct  Sacco,  Angl',  a  Sack  of  Corn,  for  Toll;  and  moved  in  Arrefl  of 
{udgment,  becaufe  a  Sack  was  a  Mcaftire  not  known  in  Lazv,  and  therefore 
it  ought  tohave  been  explained,  or  otherwile  it  is  uncertain  ;  ButDolbyn 
faid,  a  Sack  was  a  Meafure  very  well  known  in  that  County,  and  was 
there  as  certain  as  a  Bufliel ;  and  fo  he  and  Jones  di fallowed  the  Excep- 
tion, Cseteris  abfentibus.  Freem.  Rep.  483.pl.  662.  Mich,  i6S'o.  Win- 
combe  V.  Colborne. 

36.  Cafe  &c.  wherein  the  Plaintiff  rt'fJ.'?)-^^,  That  tho  Provofl  and  Scho- 
lars of  King's  College  in  Cambridge  were  feifed  in  Fee  of  a  Meffuage  in 
Grancelicr  in  C.  and  260  Acres  of  arable  Land,  lying  ///  the  Common  Fields 
of  Granccfler  afbrefaid,  and  that  they,  and  all  thofe  whofe  Ff-ate  they  had 
in  the  laid  Tenements,  have  Time  out  of  Mind  &c.  Ix'r  thcmfelves,  their 

Farmers 


292  Prefer]  ption. 


Fiirwcrs  &ic.  had  Dbertcitem  Fa!iit!g!i  of  all  Sheep  Qc\ctpt  Sec.   going   and 

dtpnJldriHg  on  the  Cvvimon  Fields  t^  *  'terntoria  of  Grancejlcr  upon  the  faid 

160  Acres,  and  fcts  Ibrch  a  Title  under  the  laid  Provolt  &c.  and  that  the 

'Defendant  did  pit  in  200  Sheep  into  the  faid  Common  Fields  ot'G.  and  de- 

♦  TlieCli  T  V^ft"^'^^^'^^^^^'^  there  tor  a  certain  Time,  but  them.y  in  or  upon  the  faid  160 

faid  lieretli'it  Acres  Or  any  Part  thereof,  Minime  faldavit  Jiciit  ipfe  dehnit^jiec  permijit 

tlie  Prercrip-  ipfum  qikrentem  habere  Eenepcinm  Faldaiii  eartmdcm,   and  iliews  how  the 

tion  IS  laid  to  jjefendant  was  not  within  the  Exception.     The  Court  held  the  Declara- 

Sheepgoin'T  tion  infufficient,  for  the  Uncertainty  of  the  Word  FiS'/^t7f///;«i  And  if  the 

infra  Com-"  Word  did  imply  as  the  Plaintiff  had  infilled,  itlliould  havebeen  fet  forth, 

munesCam-  viz.  That  the  Plaintiifhad  fet  up  a  Fold  where  the  Sheep  v\ere  to  have 

pos  &Tevn-  \yQf.^  folded,  he  beingtodo  thehrrt  Acl  i  And/iciit  debtiit  is  not  fufficient 

GrinclVr    ^ere  for  the  Obfcurity  ot  the  Word  (Faldavic)  lb  that   it  appears  not  to 

to  be  folded,  the  Court  what  ought  to  have  been  done  on  the  Defendant's  Part ;    And 


and  Teri-ito-to  fay,  Non  perrntj/t  the  VVA\v\x\di  Habere  Beneficitim  Faldagii  was  not  gocd, 
'"'.Vr^  °"'  without  ftiewing  how  he  dilturbed  him  as  8  Co.  in  jfraUCIS'lS  Cilft',  But 

tI'V'Lalv"  'fo  ^°^'^  "^hat  was  upon  Demurrer,    but  here  it  is  not  faid  Non  permijit  the 
noCemi'nrv  Plaintilf //^rf/^frf  l^Witf^/////?,  or  Non  permijit  cii.m  faldare.,   but  Non  habere 


re 
in  the  Pi-e-'  Beneficitim  Faldagii ;  So  that  it  was  not  certain  what  was  meant  for  the 
fcnjtion.      Sheep  might  be  Folded,  and  yet  he  might  be  Deprived  of  the  Benefit  of 
the  Foldage;  And  for  thefeReafons  the  Judgment  was  ftay'd  by  the  Opi- 
nion of  the  whole  Court.  2  Vent.  138.  Hill,  i  W.  &  M.  C.  B.    Dickman 
V.  Allen. 


Ibid. 


37.  In  Trefpafs,  the  Defendant  jiijlifj'd  in  F.  becaufe  he,  and  all  his 
Prcdeceffors^  and  all  their  Tenants  at  l^  ill  of  the  Ala  nor  of  D.  ha've  had 
Common  of  Turbary  m  the  Place  where  &c.  Time  out  ot  Mind,  and  no  Pre- 
fcription.  Per  Cur.  For  the  Lord  cannot  prefcribe  in  himfelf  and  his  Tenants 
at  Mill ;  For  Tenants  at  Will  cannot  prelcribe  j  hut  the  Lord  iliall  pre- 
fcribe  /;/  himfelf  and  his  Prcdeceffors^  cr  his  Jlneejlors^  or  thoje  whofe  Fjlate 
&c.  for  them  and  their  Tenants  at  Will  i  and  this  is  well.  Note  the  Diver- 
C^'r'Nr^^  lity.    Br.  Prefcription,  pi.  3.  cites  9  H.  6.  62. 

fee  pi.  2. '  38-  Trefpafs  againlt  Jeveral.,  f'Pp(J^"S  the  Trefpafs  to  be  dune  in  B.  and  the 

&  iS.  Bailiff"  of  C.  demanded  Conufance  of  the  Plea,  becaufe  they  and  their  Prede- 

L.^'^V'^s^  ceflbrs  Time  out  of  Mind  have  had  Conufance  of  Pleas  in  B.  by  which  &c. 
?''•.  ^'^■^'     ,  and  the  Title  of  the  Prefcription  traverfed.  7  H.  6.  45.  b.  pi.  287. 

tS.  cites S.C.  And  fiys,  [feme what  obfcurely]  Quod  miror;  For  it  feems  thar  a  hizwrn^y  pefcriheto  hold 
Pleas,  butw*  to  have  Conufance  cf  Pleas,  hut  J!;all  Jhew  Chaiter. 

39.  In  Trefpafs,  the  Defendant  prelcribed  in  him  and  his  yince/ors^ 
and  in  thofe  ivhofe  EJlate  he  has  in  fuch  a  Ploiife  and  Land  in  D.  to  be 
Keeper  of  the  Wood  of  D.  taking  yearly  of  every  Commoner  there  izd.  The 
Defendant  pleaded  Grant  to  him  for  a  certain  Time  expired,  and  traverfed 
the  Prefcription,  and  well,  tho'  it  was  in  Trefpafs,  and  the  Prefcription 
admitted  in  him  and  his  Anceftors,  and  in  thofe  whole  Eltate,  therefore 
it  is  not  double,  as  it  feems.  Br.  Prefcription,  pi.  95.  cites  11  H.  6.  2. 

40.  In  Trefpafs  the  Defendant  in  Jure  Uxcris  prefcrtbed,  that  jhc  anh 
her  Jinccftor,  whofe  Heir  &c.  have  had  Rent  of  20  s.  per  Annum  I'ime  out 
of  Mind  ot  the  Premiffes,  and  that  they  have  tifed  to  djl  rain  for  it  when 
it  was  Arrear,  by  which  he  took  as  Diflrefs  tbr  fo  much  Arrear.  The 
Plaintiff  faid,  that  the  Feme  and  her  Ancejlors  have  not  been  fet  fed  ot  this 
'K.tvtt  Time  out  of  Mind  ;  Prift;  and  the  others  econtra  &c.  and  lo  fee 
Prefcription  traverfed  in  Trefpafs,  and  yet  this  goes  to  the  Right,  but  there 
are  fevcral  Cafes  of  this  in  the  Book  of  Entry  cf  Pleas.  Br.  Prefcription, 
pi.  20.  cites  19  H.  6.  34. 

41.  Prefentment  'xas,  that  the  Prior  of  D.  ought  to  fcoiver  fuch  a  Way 
in  D.  by  reafon  of  his  Land  in  D.  and  that  he  and  his  Predcceffors  &c. 

have  ufed  to  fcciirit,  and  it  s  not  held  double,  and  theittore  the  Deten- 
dant  was  compelled  to  traverfc  both  the  Points  ;  Quod  Nota.  Br. Double, 
pi.  106.  cites  21  E.  4.  73. 

4c.  Where 


Prefcription.  293 


42.  where  Prefcription  is  alleged  in  a  Rait  or  Coiiimo;i^  and  the  other 
(il'egt's  Unity  of  ruffc/fion  of  the  Rent  or  Common,  and  the  Land  out  of 
w  hich  &c.  this  is  a  good  Ple.i  without  traverjing  the  Continuance  of  the 
Prefcription  ;  Per  HuHey.   Br.  Traverfe  per  &c.  pi.  185.  cites  5  H.  7. 


II,  12 


43.  In  Trefpafs  Quare  Claufum  fregic  in  C.  the  Defendant  pleaded, 
thac  the  xManor  of  C.  is  an  ancient  Manor,  and  that  within  the  laid  Ma- 
nor is  a  Cultoni,  that  every  l!enant  habzret  a  Way  over  the  Place  where 
&c.  Upon  which  the  Plaintilf  dcmurr'd  ■■,  and  Judgment  was  given  lor 
the  Pluintiif  that  the  Plea  is  ill.  Sid.  237.  Hill.  16  &  17  Car.  2.  B.  R. 
Cornelius  v.  Taylor. 

44.  In  Jiffife  of_  Rent^  he  who   prcfcribes  in   him  and  his  Anceflors,  Without 
and  in  thofe  whofe  Eitate  he  has,  ought  to  IhewDeed  of  the  Rent;  for  |^'=^'"S 
^ite  Ejfate  cannot  be  of   a  Rent  -without  DecH^  by  which   the  Plaintifff^^^-y^-^,, 
jheived  Deed  of  Grant  of  the  Rent  to  his  Anceftor,   but  did   ;/o/ ihew  s.  P.  Br 
Deed  of  Coimnencement  of  the  Rent^  and  thereiore  ill  by  the  bell  Opinion  ^  Prercription, 
For  a  Man  may  prefcribe  in  him  and  his  Anceftors  &c.  without  lliew-  P'  ^'^  ''l^L. 
ing  Deed,  but  not  in  a  Que  Eitate  of  a  Thing  which  cannot  be  granted  '^,„  ^  \\]l„ 
without  Deed,  unlefs  he  ihews  Deed  thereof;  Contra  of  Acquittal  inh\m  may  pef-y,ie 
and  thofe  whofe  Eltace  the  Lord  has  in  the  Seigniory,  or  oi'Coinmon  Jp-  '»  '?';«*  P'^>'- 
pe/tdant,  or  Eftovers  appendant  &c.  there  he  may  prefcribe  by  Que  Ef.'^'ofor.Jpte''- 
tate  without  fhevving  Deed.     Br.  Prefcription,  pi.  29.  cites   24  E.  3.  „'""rI°:fL„/" 

23.    39.  jhcwimSpe- 

ci.xly.  Br. 

Prercviption,   pi-  4"- • — Ard  in  Rcvt  referved  for  efjiialiiy  of  Partition.    Br.  Prefcription,  pi.  4 


Jnd  the  Rcafon  why  Rent  may  be  prefcribed  for  without  fhewin^^  Deed,   where    it  i.s  Parcel  or  Appen- 
dant to  the  Manor  or  L.!nd,  n,  h-caiife  the  Manor  or  Land  may  p.ifs  by  Livery  •without  Deed,   and  then  the 

Rent  pafles  with  it  a.s  annexed  to  it.   Br.  Prefcription,  pi.  4-.  cites  22  AlT.  5. Br   Monftran';,  pi. 

91.  cites  .S.  C. But  Br.  Prc-'cription,  pi.  4S.  cites  '2:;  AIT.  6.   Contra  that  in  Jjffe  of  Rent  the  Plain^ 

iiffprefirihedin  him  avd  his  Am'-p-'-rs,  and  in  thofe  ivhofe  Eflate  his  Jnceflors  had  T>n:e  cut  of  Jfiiid,  and  it 
wasad.udgcd  a  good  Title  wirli.. Lit  fhewing  Spe:ialty   of  the   Que  Eflate   or   otherwife,  and  the  fame 

Judgment  affirmed  in  B.R.  !■'.  Vv'rit  of  Error.  Br.  Prefcription,  pi.  48.  cites  25  All  6 Br.  Mon- 

ilrans,  p!  94.  cites  S.  C. 

45.  A  Man  cannot  prefcribe  in  him  and  his  Predecejfors^  and  in  all  thofe 
whofe  Ejrate  he  has  in  a  Hundred^  without  Ihewing  Deed  of  the  ^uc  Ff- 
tatei  Per  Hill.  Br.  Prefcription,  pi.  15,  cites   11  H.  4.   15. 


(Z)  Equity. 

i.MpHE  Conilable  of  the  Callle  of  Gloucellcr  exhibited  a  Bill  a- 
J^  gAimt  a  Brewer,  letting  Ibrth,  that  he  and  all  his  Predccefjors 
Conltablcs&c.  have  ufed  to  have  12  s.  of  every  £rev;er '•jiithin  the  City  of 
Gloucefter,  and  that  the  Defendant  refufed  to  pay  it.  And  Noy  de- 
murred lecaiife  no  Cvnfi deration  was  laid  in  the  Bill,  by  which  it  might  a- 
rife  and  commence.  But  the  Bill  was  ruled  by  the  Court  to  be  good. 
Litt.  R.  103.  Trin.  4Car.  in  the  Exchequer.  The  Conltable  of  theCaltle 
of  Gloucelter  V.  A  Brewer. 

2.  The  Lieutenant  of  the  Tower  of  London  exhibited  a  Bill  as  to 
certain  Wine  claimed  by  hnn  of  every  Ship  laden  ivith  it,  and  he  v\-as  re- 
lieved. And  it  is  luliicient  to  maintain  the  Prefcription,  that  //  might 
have  a  lawful  Commencement  though  now  the  Caufe  and  Confi deration  is  not: 
knuiin.  For  in  many  Cafes  the  Confuieration  is  tranlitor)',  as  Payment 
offuch  aSum&c.  Litt.  R.  103. 

3.  It  is  a  common  Cafe  in  Chancery,  where  a  Man  has  nfed  to  have 
a  Rent  out  of  fuch  a  Adanur  J'imc  out  of  Afind,  but  knows  not  by  whom  he 
has  it,  cr  what  Rent  tt  ts,  whether  Rent-lervice,  Rent-charge  &c.    or 

4  E  7-''^ 


294-  [Prcfentation.J    Parfoa.     Patron. 


for  wbathi  has  it,  but  only  that  he  has  ufed  to  ha\e  it,  it"  it  be  detained, 
to  fue  there  tor  it :  Per  Walters.  Litt.  R.  103.  in  the  Cafe  of  the  Con- 
ftable  ot'the  Cattle  of  Gloucelter  v.  A  Brewer. 

For  more  of  Prefcription  in  General,  See  CfjiUUlt  Ot  t©aP0,  COimnOn, 
CUrtOni,  ^\\t  reflate,  and  other  proper  Titles. 


[PrefcntatlonJ  Parfon,  Patron. 


(A)  Vicarage.     [//7.o  might  create  a  Vlcarage.~\ 

WatCComp.  I.  r-pJ3  e  Ordinary  CaiinOt  tum  a  3DfCaran;e  &)(tl)aut  tbC  AtTentof 

inc.svo.    .     j^   the  Patron.  16  (5*3.  duarc  luipetut  145-  5  €♦  2.  Ctuare 
-A Vicar-'  ^mpcftt  195-  ^  P^ft-  ^^  c  3-  ^onfltauss  tie  mitgi  i66.  pec  i5a(f» 

age  cannot 

be  created  without  the  AfTent  of  the  Patron  ;  per  Dodsridg;.  Roll.  R.  4(?4.  Trin.  14.  Jac.  in  Cam. 

Scacc.  in  Cafe  of  Colt  v.  Glover. 

2.  Clje  Parfon,  Patron,  and  Ordinary,  tttaP  CmitC  a  ©(Carage  with- 
out the  Aifent  of  the  King,  tfjouo;!)  tijc  33fcar  fljall  be  a  Corpora-' 
tion ;  lor  tl)i0  tjs  a  Corporation  Dp  tljc  Coiiinion  %m.  Contra* 
17  C*  3- 51-  auniitteo* 

Watf.  Comp.      3.  ^  Parfon  appropriate  and  the  Ordinary  lUiOjIjt,  before  the  Statute 

Inc.  svo.     of  Diifoiutions,  create  a  ©icarage ;  lor  tijepaclon  luas  }2)arronaitO 
?a^s,T/the'  ll^atrom  8E«2.  !anmut}>53-  «7C»  3-51. 

Appropria- 
tion be  duly  made  when  the  Church  h  full,  he  fappofes  a  Vicarage  msy  then   be  created,  at  lead  if  the 
Incumbent  content  ;  But  not  foas  to  bind  or  leffen  the  Profits  of  the  prefcnt  Incumbent;  However,  it  is 
,lcar,  that  the  Patron  and  Ordinary  alone  may  create  a  Vicarage.  Cites  S  R   2.  Annuity  53. 

Watf  Comp.       4.  Jf  jn  Dean  and  Chapter,  or  other  fbch  Corporation,  as  Nuns  &c. 
Inc.  Svo.        hjj^  Parfons  appropriate,  tfjep  Ungljt  with  the  Ordinary   Create  a  ©i« 

345- cap.  1,.  j.jj^jjgp^  tljouBl)  tljcp  tljcnifcli3C0  ijau  not  tfjc  Cure  of  €)oui0.  Com* 
ijDrennon.  497- 

5.  In  Time  ot  Vacation,  tlje  Patron  of  the  Par(bna2;e  and  the  Ordi- 
nary map  create  a  iDicarage*  s  e*  2.  annuity  53-  per  'Bellt* 

6.  The  Patron  by  Lapje,  tho'  it  be  the  King  himfelf,  is  not  fufficient 
Patron  to  atTent ;  lor  the  Patron  by  Lapfe  bas  no  Interefi^  but  a  necelTary 
Function  to  prefent  one  to  lerve  the  Cure.  Per  Hobart  Ch.  J.  Mo.  903. 
pi.  1262.  Mich  10  Jac.  in  Cafe  of  Colt  v.  Glover. 


♦There  is  no 

t^isTn  Roll         t^O      Vicarage.     Endowment.     \By  <zvhom  &'o:  ] 

and  this  Plea 

is  there         [i.]  40  <£.  3.  28.     A  B  CntlOUimcnt  10  pleaUen  to  be  by  Parfon 
rnMi6).  /\  and  Ordinary. 

Endowment  .^    .».  j 

fhall   not  be  of  a  Vicarag:e  without  tie  JJfent  of  the  Patron      Per  Dodderidge  J.  Mo  900.   Mich.  lojac. 
C.  B.  in  Cafe  of  Colt  v  Glover.     Cites  5  E  i.  Qiiaie  Impedit  16 y 


* 


(C.) 


[Prelentation.]    Parfon.    Patron.  295 


*  rc.1  t  Vicar.    Endowment.  .       *JuuJlo 

^  this  ia  Roll. 

I  Tf  a  WtCar  had  ufed  bv  Piefcription,  CitnC  lUljCtCOf  99Cmon'  OtC*  t  Vior  is  he 
■  1  CO  have  all 'lithcs  tuitDUl  tIjC  patinj,  (except  Corn    U)i)tCO  tljC -ho  h.d, 

Barfon appropriate  iifeu  to  Daue)  viz.  otHay,  and  aio  ot  h^p^^.  '  £;. 

iSm  the  Tinie  that  they  came  into  England,  fClUCCt,   111  tljC  mmt  Ot,,„,a;Vt 

io  8  am  of  UBoatis,  ctoDicl)  t^i  a  DPinn;  l^Iant)  and  now  ivape-  ,-a,.age,  bc 

leed  is  (own  within  the  Pariih,  tljCtC  never  having  been  any   uch  Seed  ingno  other 
bwn  there  before,  nor  in  Enghmd  till  of  late  Time    ))Ct  tijC  ^DlWr    .- ^  c..- 

flial!  mtmm^onm  Kapcfccn,  ann  not  t()C  parfon  appropriate,  Po„,on  of , 
iecaufe  tijis  i3  loitijin  tije  l^rcfcriptton,  tljo'  it  be  a  New  1  hmg,  tor  Pa>fonage. 

of  an,  etcept  Corn,  anu  Urn  i3  Ji^'tbintOe  genera  1  rdcr.ption  to  have  ^.t'-'-: 

all  Tithes,  except  Corn.     p.  7  Car.  Od.  E-  llCtUiecn  .  tcnance.i,,- 

Kcfolijeii  per  Curiam,  upon  eminence  at  ^ar  in  a  Caie  t.oduced  at 


?;5- 


arciSion ,  foe'  tUc  l^rcfcription  prefumcss  an  eSnQoiumcnt  prc= 

lly.f.ttf  propnations 

UOenC*  fii-ft  began, 

both  which  Livuirs   .1.  they  are  commonly  called  the  Church,  fo  both  fuch  a.  fcrve  in  them  are  called 

diePltron^  Cl-rk.  'The  Vicar  i-  ufually  appointed  and  allowed  to  |erve  the  Cure,  by  *  hini  who  hath 

he  ImproP  -ia  ion  of  the  P.u-ochial  Tithes  ;  for  at  the  Original  of  luch   Impropriations  a  certain  Por- 

?on  oTthe^Pa  fonar^e  ^vas  allotted  and  fet  apart  from  the  reft,  to  m.unt.un  the  Vicar  who  was  to  fervc 

heCmeo  that  now  the  Pricft  of  a  Parochial  Church,  where  the  Predul  Tubes  are  impropria  ed, 

•       nT.U.Virrr    h    e   Vice  Keftori.;.     And  it  feems  anciently  they  did  fomctimes  itdc  themielves 

P      luV^V iarsbecaufe  every  vS^^^^  Corporation-like,  hath  a  conft.mt  .Succeilion.  _  Godolph.  Rep. 

fo'^'cap  iPl   T  "s   P  WDa'vekport'Arg.Palm.'il,.  Mich^iS  Jac.  B^K-  m   Bntton  an.i 

lir    ^-^rfr.    ri-«  Com  M- -Vicar  is  but  he  ^ui  ferit  -vkem  Pe,-fo>j^,  to  fupplv   his  Place  in 

StbfbncI     Per  Popham'^Arg.  Le.lsz.  Trin.   31  £K./ B.  R.  in  Cafe  of  Slug  ..  The  Bifhop  of 

^  Viiaces  were  not  at  Common  Law  in  Churches  appropriated,  but  they  commenced  in  20  H.  3.  by 
the  ronftuution  of  Pope  Othobon,  which  provided  that  from  thenceforward  in  Churches  appropriate,  a 
the  i.onituuuon  ^  F  '  Penalty  but  at  Common  Law  they  were  Reraove.ible,  and  not  Per- 
^:^::/'^^^^:^:^^n^c:^^^r.  spiritual  in  their  mmtution  and  Indowment,  and  .ot  of 
Tempo'ral  Conufance  ;    Per  Damport  Arg.  Z  Roll  Rep.  9S.  in  Cafe  of  Brltton  v  Ward. S.  P.  A,g  4 

'  At\Sc— "llll'rjun,!t"ti-um  lay  for  their  Poirenions,  but  their  PofTemons  might  be 
■  r^  onH^rrr.red  at  the  Will  of  the  Ordinary.  And  there  was  no  Endowments  ot  V^icars 
ImlS  1  tl^f  Kbg  loln'^And  n^^^^  Imredit  l-W  for  the  Advou.on  of  a  Vicarage  nil 
Weft  2  cap  r  Koran-  furis  Utrum  fo.>the  PoflefTions  of  a  Vicar,^  nlU4  f  5-  cap.  i;.  Arg.  Pa  m. 
)i  '  Mich  ^.  s' Tac  B.  R  -'n  Bruton  and  Ward's  Cafe,  — But  it  was  laid  by  Nov  P.dm  1.4  that  V  i- 
cara'-^es  were  long  Tmie  before  King  ]ohn,  and  that  in  0..tordft..re  there  are  4  \  icarage.s,  w^  uch  were 
much  moirancicm  than  his  Time.     And  that  in  4  f  z.  a   V  icarage  was  n^.de  by  ..lex.nacr  t>:c  ^l  -~ 

rnuchmoie  -"^cic.  .1,.,.  if  the  Bcinning  ot  V kaiMges  be  known,  it  w.is  Sth  H.  ; But 

nl^Z  \.  '^  S  vi:  c::ne  I'li^"  .h  year  of  K^,g  John.  Mod.  R.  .  2.  in  Cale  of  Clerk  v. 
Jleath. 

2  Tf  a  JDicar  be  ennotte^  out  of  a  parfon^c  ofaii  */vhite  Tithes  *^Minuus 
crowing  an^  rcueiyinu  untljm  tlje  l^arifl),  upona  i  th^  Land  o  the  Fa-  \^^^:^.,^ 
rT  t?e  licar  S  not  tDercbj)  \m  mw.  ot  tljc  oiebe  ^.t  m  m^^  -_t  orig  u 

i.t'ariUJ,  "Pi!"  ""  \^e  X^  \  .,^A  w'hlrh  it  the  T  mc  ot  the  Endowment  pomtcd  that 
not!)  Dane  Clt!)C0  of  tijCLand  ^'"/^^JV"^-,„';  ,P  .fi5,,.,{.    fi{aaUUC!ll^'--1^""''l' 
vv^5  parrel  ot"  the  G  ebe,  but  now  lever  d  UOm  tW  *^''-'^''>  ''^"•"'"^J'.^.„,e  th- 

St tl e  kintc of  tDe 'i'nBotonient tlji^ fnut. uia^^cxcmptco ou tot  "-, .^;,„ 


296  [Frefcntation.J     Parfon.     Patron. 

yet  he  fliaii  (f  ig  1(110,  tl^at  tijiS  luas  ottc  *  roioifsi  Ciife,  i*^icar  of  tljc  l^arinj  of 
'"'^  ^^^%  ,  hopcMj  m  it-iitfljirc,  tiOiUDceo  ann  iproijtbitiaii  ntrauten* 

ruhesotthe       '  ^       ^  1^  .r  _. 

Glebe  oftlcP.irfcv,  bpCiiuCc  EcclcTu  Ecclcfii  Decimas  folvere  non  debet.  Mo.  910.  pi.  12S1.  Trin.  ^S  Elix. 

BH'ico  V.  Marlton  (Vicar.) But  if  the  Farjoyi  hiifes  tie  GleU,    the  Vicar  ihall  liavc  Mii.utas  Decimas 

of  the  Leflc,  and  Lcflor  Ai.tU  have  the  great  Tithes ;  but  if  the  Ene^c'ivrvetit  luis  fpeiial  U  cnis,  that  the 
Vicar  fhall  liave  AJir.utas  Decimtts  cf  the  Glebe,  tiien  he  ftall  have  them  ;  but  then  it  ought  to  be  Ancittit 

Glebe  at  t!-.c  Time  of  the  Endov,n:ent.    Mo  91'^.    S.  C Cro.  Eli?,.  479    pi.  10.  Tiiii.  5S  £liz.  S  C. 

by  Name  of  Blunco  v.  Marton.  — Cvo.  E.  5-S.  Mich.  ;9  &  40  Eli/.  B.  K.  S.C.  Blinco  v.  Barkldale. — 

4:  ^iJ  910.  Cites  it  a.s  the  Cale  of  Young  and  the   Parfon  of  Foxlcy  in  WiUOih-c Cro.  E.  4-9. 

cites  S.  C. 

4.  Jf  a  Compolition  be  between  Parfon  and  Vicar,  tljattljC  J^arfOlt 
fljaii  ijalJC  all  Tithe  Corn  and  Hay,  and  che  Vicar  ail  other  'i  ithcs,  anO 
after  tijC  lii)firifijlOnCt0  fow  certain  arable  Land  with  Saffron  or&c.  tljC 

jsatfon  fi)ail  not  Ijanc  tlje  "^itW  of  tljc  Saffron,  bat  tijc  Dtcar. 
Cr(n»  7  jav  Td*  \>vc  Col^e  fain  to  be  aOjutigcri, 
Cro.  E.  46..    5.  Jf  tljc  Dicar  be  entsoiccti  De  Minutis  Decimis  bp  l^refcnption, 

(bis.)  S.C—  giiji  ijftCtU^irtlS  Land  which  had  been  Arable  Time  whereot  Memory,  is 

Mo.  909^^  pi.  converted  fiom  Stable,  auc  tljctc  gtoui  c?5mutie  Decims,  tljeaDicar 
Goidsb  ,49  fijall  banc  tiicni ;  for  m  Ciinouimcnt  nociS  not  go  to  tbe  lanD,  but 
pi-,.s  c-to  tbc  fr.iail  (ICttljes  m  anp  l^lace  luitljin  tije  panHj.    p.  3^  CU 

S  C  Cited    -^^^  jj^^  bCtlUCCU  Bedingjield  and  Frcake. 

Hutt  :8.  a.s 

adjudged  Pafch.  ■;  jac  in  B,  R.  and  fays  that  the  Field,  planted  with  Saffron,  contained  40  Acres.  And 
i-i  the  principal  Cafe  there,  which  was  2lll)C0all  b.  SClllDaU  Hill.  I  Car.  It  was  faid  that  all  thcfc 
New  Things,  as  SatF:oii,  Hops,  ■V\"oad  &c.  if  it  does  not  appear  by  material  C'-rcumftancc.  to  the  con- 
ti-ary,  fliall  be  tal  en  as  Minuts  Decima;  ;  and  accordingly  Judgment  in  that  Cafe  was  given  for  tlie 
Defendant.— Cro.  C  2S  S.  C.  and  there  cites  the  principal  Cafe  of  Bedinglield  and  Feake,  by  Nam;  of 
%\)(  ©tail  anD  t  Ij^ptfr  of  i!iori»lCl)'jS  tafe  Pafch,  43  Eliz.  adjudged. 

6.  Jf  a  ©tear  be  enUOlUCll  of  a  third  Part  of  all  the  Tithes  growing 
A  V^""-  "^-^^  and  coming  wittiin  the  Manor  of  D.  J;C  %\\\  {jaDC  tIjC  CltljC?  Of  ttjE 

-S  Words''  Frar.ktenants,  a0  iBcii  ais  Of  tijc  Cop})l)oin£ri5,  fot  all  \mU  tije^JJanot. 

^viz  HM,il  P«  3!^  ^!*  'B*  i^*  betUJCen  Higham  .md  Bcji  aDjtlOfiCi), 

iertuim  f/ir- 

tem  Decin:.tr:im  ¥l.xkri!;r,  cf  Firiii.  niromn^ocunfjue  perze>:ie>:ien!  i^e  Maneriis  de  B.  &C.  The  QuelVion  was. 
If  by  this  Indowmcnt  the  Vicar  fhould  have  the  third  Part  of  the  Tithes  growing  upon  the  Land  of 
the  Freeholders  within  the  Manor.  The  Court  faid  that  a  Manor  cannot  confift  without  Freeholders, 
and  fincc  they  are  'o  be  chavg'd  with  the  Payment  of  Tithes,  one  and  the  other  together  fhall  be  faid 
TO  be  the  Tithes  of  the  Manor  :  And  fo  it  was  adjudged  that  the  Vicar  fhould  have  Tithes  of  the  third 

Part   of  the    Lard     Ow.  5S.  59     Trin.  ^i  Eli?.,    higham  v.  Bead. Ow.  74.  S.  C.   by  Mame  of 

it'tcliaiU  b.  IDcff  ;    ar.d  Tanfield  faid,  That  the  Word  Manor  extends  to  tiie  Precincts  of  the  Manor, 

and''not  to  the  Demefnes  ard  Services  only S  C.  Cro.  E.  4^2.  (bis  )  Pafch.  5S  Eliz,  B.  R.^lrigljaill 

tl.  13tiJ.  Adjudged  bv  Po;: ham  and  Fenner,  the  other  Juftices  not  being  in  Court,  That  the  Vicar 
ihould  have  all  the  Tit!;e«,  as  well  of  the  Freeholders  as  of  the  Demefncs  ;  for  this  does  nor  create  a 
New  Ch3rr;c,  but  is  di'pofing  of  the  Ancient,  which  was  due  by  the  Tenants,  and  runs  thro'  the  Li- 
mits of  the  Manor  ;  but  if  this  had  been  made  before  the  Council  of  Lateran,  it  would  not  havecliarg'd 
the  Freeholders  bat  the  Demefnes  only  ;  and  adjudged  accordingly  for  the  Vicar . 

Cro.  E.  633.     7,  jf  a  r)icar  tuajj  entiotacti  in  Time  ofu.  3.  bj)  tljc  patfjii  appro^ 

^C.-— —  prialt,  aUlOUffOtijer  Cijmg^  De  Decimis  Garbarum,  grOUlini?  Untlj' 

Termini'     «^  'I  ipauilct  luitljui  tljc  partilj,  anD  always  after  tijis  €<rcou)mcnt, 

Tiihe  H.ry  is    thc  Vicat  had  ulcd  w  ha\e  the  Tithes  as  well  ol  Hay  as  ot  Corn,   ttlO' 

not  inciud-  nou)  at  tljis  Day  ^©arba  fiBnifieis  a  ©Ijcaf  cf  Corn,  ano  ass  tbc  Ci= 
w'^'''n  ^titans  fap  Catba  lignifies  fuct)  Cljuiff  a0  10  bounu  togctljrr  bp  a 
,v°G^,/,r'''  'BonD,  anD  ni  tljcit  ai5ooli£i  (0  ufeD  for  Corn  nm  not  for  ipap,  ))tt 
rum  at  this  bccaufc  It  iss  an  ancient  (enoouiment,  anD  tije  ^ur^t  aiioap^  after  hag 
Day,  yet  for  bccit  fucij  (\^  10  aforcUiiD  i  ti)t  oDicat  fijaU  ija^c  'ijCitljcs  of  Xpap,  for  it 
the  ccti.uai  ^^n  ijj.  prefumed  tbat  ui  tlje  'Cime  of  ^.  3-  i^w  iJiii^fJt  &c  compn?'D 
iirdTbe  taken  t^itbut  tijc  UBotD  #atba,  BnD  tbat  at  tijio  ■Wnm  tIjc  Hfe  tuas  to  bnia 
that  then  fpaj?  in  15unDlcs ;  for  fuel)  ancient  *Jprant0  are  not  to  be  erpounDcD 
they  nfed     nccorDatn:  to  tbe  LaU)  ufeD  at  tW  Dap,  but  as  map  be  inteuDeD  tijat 

this  V\'ord     jj.  ^^^  jjfjjj^j  jjf  J.J.J  ,^(,„j,  (5f  f Ij^  (iJrant,     a^IClj*  4^*  4 1  ^U  'i?,  Barks- 


terrPalm.    ^^^^  ^-  ^^'"'^^  '"'^  ^^-'"^  tlDjUOSCD, 
115.- 


8*  If 


[Prefentation.]     Parfon.     Patron.  297 

S.C.  cire«l  by  Noy  in  Cafe  of  Brittoii  v.  Ward,     2   Roll.  R.    161    cites  Barldak  v.  Smith. Luf 

R  263.  Anon. 

8*  Jf  a  tJiCar  be  CntlOlUCtI  De  Minutis  Dccimis,   aitB  fjC  has  ufcd  bj)  -  ^^^\^'- 

force  ortljtS)  €nnou)uicnt  bp  a  lono;  Cimc  to  have  Tichcs  oi"\\\)od,  t;.^- ,  ^n 

which  is  bu.  of  the  annual  Value  ot  6  s.  8  d.  J5^  ECilfOU  Of  tIjC  fHiail  a-recd  in 

t^p.utc  Of  tTc  ;'3oori  auB  ti3c  iiragc,  tijc  i©aon  ujaii  paf^  bpaaorns  of  ti?:„  That 

S^lllUtiS  DCCliiJlS,     93lC0.  to  Ja.  1^.  1\»  bCtUlCCn  RcjuoUs  cvnl  Gne,i  hv  the 

J9ci'  Curiam.  ClO)uaa;cti  upon  GijtQeucc  at  tljc  X^ar,  tijo'  UDoon  m  J;";;*;^  &' 
it0  jaature  be  great  CitDcs.  m  i,ru'tx  De- 

cimrc,  by 
Ufa£;c,  Tithe  Wond  may  well  pafs ;  and  Co  hath  the  Opinion  of  all  the  Civilians  been.  But  per  Williams 
].  by  the  Word  Alteragia,  without  VCA^t,  it  fliall  not ;  but  if  the  Vicai-  Time  out  of  Mind  has  ufcd  to 
have  the  fame,  then  it  is  p;ood,  and  fhall  pafs  by  the  VN'ofds  of  Minutos  Dccimc.  .^nd  per  Fleming  Ch.  J. 
accordinpily,  the  Tithe  Wood  bcini;  of  fmall  Value  ;  and  that  by  thole  Words  Tithe  V\'oud  may  pit'.s, 
the'  the  Law  be  againft  it. S.  P.  Het.  155.  Wood  v.  Green. Litt.  R.  245  S.C 

9.  Tho'  the  Tithes  of  a  Field  have  been  paid  to  a  Parfon,  yet  it  be- 
ing converted  to  another  Ufl',  whereof  no  Great  Tithes  do  come,  the  Vi- 
car ihall  have  the  Tithes.  And  fo  if  aral^ie  Land  be  converted  into  an 
Orchard,  the  Vicar  iTiall  have  the  Tithes  of  the  Apples  ;  and  io  if  the 
Orchard  be  changed-  into  Arable^  the  Parfon  Ihall  ha\e  Tithes.  Per 
Popham,  quod  Fenner  concelfit.  0»ven  74.  Pafch.  38  Eliz.  B.  K.  Dean 
and  Chapter  of  Norwich's  Caie. 

10.  A  Vicar  libcU'd  againll  the  Parfon  for  T'lthcs  of  the  Glebe.  The 
ParH^n  brought  Prohibition,  and  adjudged  Maintainable.  And  if  fpc- 
cjal  Cujiora  be  alter  the  Endowment  of  the  Vicarage,  this  is  ijjuabk. 
Mo.  457.  pi.  627.  Trin.  38  Eliz.  Blenco  v.  Marfon. 

11.  The  Parlbn  cannot /jr^/ov/v  againft  the  firll  Endowment.    Noy  3    ^r„  ;So. 
Trin.  2  Tac.  B.  R.  Fringe  v.  Child.  Failh  4  fic. 

•*  S.C.     And 
Hiysan  rnjsnaion  va.-^  granted  the  V  i;ar,  to  (lay  the  St;it  of  the  ParRjn  for  the  Tithes  limited  to  the  Vi- 
car on  the  Corapofition. .Mo.  ;6i.  S    C.  by  Name  of  Spring's  Cafe. 

12.  A  Alodas  between  the  Pdrfon  and  a  Parilhioncr,  will  not  difcharge 
the  Payment  of  Tithes  as  to  the  Vicar.  3  Built.  221.  Mich.  i4jac. 
W'intel  V.  Cniid. 

13.  As  long  as  the  Vicar  Cirnpies  his  Glebe  Land  in  his  own  Hands,  he  If  a  Vicar 
/hall  pay  no  Tithes,  but  if  he  demiie  it,    the  Le([ee  ihall  pay  'I'ithes  to  the  t'^e^'^o^^'-'d 
Parfon  that  is  impropriate.     Brownl.  69.  Hams  v.  Cotton.  Glebe  out'of 

the  Parfon- 
age,  the  fime  G'.cbe  fo  afTign'd  fnall  be  difcharged  of  Tithes  of  Corn,  in  Confideration  that  the  Vicar 
is  bound  to  ferve  tlie  Cure ;  but  if  a  Parfon  Icalcs  Parcel  of  Ids  Glebe  to  another  for  Years,  Life,  or 
makes  Feoffment  in  Fee,  the  Leflccs  or  Fcoftees  fhall  pay  the  Tithes,  unlefs  Ibme  Confideration  dil- 
clurges  tlieni  of  Tithes.  Per  Man  wood  Ch  B.  Shute  Jiaron,  and  Gerrard  Attornev-Gcneral.  Sj'/.  ;. 
pi.  8.  jMich   22  £c  23  Eli-i.  in  the  Exche^jUer  Chamber.     Vicar  of  Sturton  v.Gricfley. 

14.  y'lCiiT  iQxs  the  Land  and  dies  i  ^/j  Executor  takes  away  the  Corn, 
and  lets  not  forth  the  Tithe  ;  the  Parfon  brought  Debt  on  the  2d  Ed.  6. 
and  the  Court  feemedto  incline  it  would  lie.  Brownl.  69.  Harris  v.  Cotton. 

15.  On  aQuellion  about  a  Piece  of  Land,  parcel  of  the  Glebe,  it  was 
offered  in  Evidence  that  Indowment  was  of  this  Church  in  H.  the  Illd's 
I'ime,  and  in  that  No  Land  was  mentioned,  but  it  was  anlwered  that  always 
in  thofe  Endowments  Liberty  was  referved  to  increafe  the  Maintenance 
of  the  Church  ;  And  it  was  urged  firthcr.  That  No  Land  was  in  the  Va- 
luation ol'  this  Church  in  Time  of  H.  8.  when  the  Churches  were  valued, 
but  it  v/as  anfvvercd  that  Lauds  were  not  in  thofe  Valuatiorks,  and  Omil- 
lionsalfo  of  many  Particulars  were,  and  the  Vicarage  Houfe  in  this  Cale 
was  omitted,  and  yet  never  quellioned  but  it  did  belong  to  the  Vicarage. 
Clavt.  9.    8  Car.  Coyne's  Call*. 

16.  The  King  cannot  make  ■x  Licence  of  Appropriation  without  a  Matter 
of  Record,  and  it  ought  to  be  with  a  Condition  to  enduiv  a  Vicar,  and  ch- 
Endowment  m  ly  be  by  a  dtJliiUi  Injlniment   fro.n    the  .Appropriation,    f) 

4  F  '  that 


p8  [Prcfentation]    Parfon.  Patron. 


that  it  be  made  at  the  fiimc  'I'ime  that  the  Appropriation  was.  Sty.  156. 
Mich.  1649.  Per  Cur.  in  a  Trial  on  the  Cal'c  otCave  v.  Orby. 

17.  ft// lor  Vicarage  Tithes  in  fome  Towns  in  Kent,  and  the  Plain- 
tiff rt'/^/  f/ct  Jet  forth  hoid  they  hccanic  due  to  him,  'n'bether  by  Prejrnptiun  or 
Endo-ivwciit i  A  nd  after  an  Anlvver,  and  Depolitions  taken,  this  was  ob- 
jetted,  at  the  Hearing  theCaufei  But  the  Exception  was  over-ruled,  be- 
caufe  the  Defendant,  by  his  AnlWtr,  admits  him  to  be  Vicar,  and  that 
theTithcs  in  queltion  are  his  Due,  but  inlilts  only  upon  Payment  and 
Satisfaction  5  Quodnota;  For  it  has  been  often  ruled  contrary,  it  being 
the  Ground  and  Foundation  of  the  Plaintifl's  Title  ^  But  the  Bill  was  al- 
terwards  diliniiled  upon  the  Merits  with  40  s.  Colts.  Hard.  130.  Mich, 
1658.  in  the  Exchequer.  Button  v.  Honey. 

18.  The  Vicar  ol  G.  brought  Bill  lor  Tithes  of  the  Manor  of  Uxbury 

and  other  Lands  belonging  to  the  impropriate  Re£tory  olG.—C.  demanded 
them  lor  8  Years  lalt  palt,  and  ending  in  1661.  It  appeared  upon  the  Hear- 
ing, that  feveral  Vicars  of  G.  his  PredeceHbrs  had  enjoy'd  thefe  Tithes^ 
But  an  Endovyment  was  now  produced,  dated  7  March  1362,  made  by 
Archbilhoplflip,  and  prefer ved  in  his  Regiller,  by  which  it  did  not  ap- 
pear that  the  Viccir  was  endowed  ivtth  any  'lakes  oj  Corn  or  Grain  neither 
was  there  any  Liberty  therein  referved  (as  ufual)  to  augment  or  dmintp  j 
Whereupon  it  was  inlifted  that  the  Vicar  ought  not  to  have  thefe  Tithes  i 
But  the  Court  held.  That  where  the  Vicars  had  took  Tithes  tor  a  long 
Time  he  Ihall  not  be  concluded  by  their  not  being  exprelled  in  the  En- 
dowment, and  that  it  had  been  often  fo  held  and  ruled  j  And  that  by 
fuch  hng  Pojfel/ion  it  fhall  be  preftimed,  that  the  Vicarage  hath  at  Ibme 
Time  or  other  been  augmented  therewith i  And  the  not  refervino-  fuch 
Power  is  not  material  For  an  Augmentation  may  have  been  no°with- 
ftanding,  with  Allent  of,  or  citing  ail  Parties,  but  not  without  Notice  or 
Citation.  Hardr.  328.  Trin.  15.  Car.  2.  in  the  Exchequer.  Twifle  v.  Bra- 
2.en-nofe  College  &  al. 

19.  AWc^T  may  pay  Tithes;  As  where  an  Abbot  or  other  had  3  Portion 
of  Tithes  out  of  a  Vicarage,  which  is  now  come  to  the  Plaintiff  I  ev 
141.  Mich.  16  Car.  2  B.  R.  Wright  v  Beal. 

s' p'^'Lh  ^°-  ^'"'"  ^'^^^^^'^  '"  ^he  Spiritual  Court  for  Tithe  Hops.  It  was  fu2- 
ingly;and  '  f  *^^^  )'"'  ^  Prohibition  that  ih^Y  had  paid  Time  oat  of  Mmd  to  the  Parfon 
that  Hops  Jo  miicio  an  Acre  Jor  all  Tithe  Hops  ^  But  the  Prohibition  was  denied  ■ 
wci-ebut  of  For  no  fuch  Compohtion  could  be  Time  out  of  Mind,  Hops  not  beinff 
late  Time,  known  in  England  till  Q.  Elizabeth's  Time,  when  they  were  firlt 
rdlntthc  brought  out  of  Holland,  But  the  Court  faid,  that  perhaps  Lv^-arage 
Records  was  endowed  Time  out  of  Mind  of  the  fmall  Tithes,  of  which  Nature 
cited  by        Hops  were  ;  and  then  the  Prefcription  of  paving  a  Modus  to  the  Parfon 

^oThe?on!    5"^^"^'   'i^^,  '^'"l  ^"S""  ^™'^^?f  'fP^i^^t-k^n  to  have  commenced 

m  y  Butit>f,^/f'^  ^»<^owment.  Vent.  61.  Hill.  21.  &  22.  Car.  2.  B.  R.  Crouch 

vas  faid,       V.  Rifden. 

That  if  the 

Suggeftion  for  the  Prohibition  had  been  to  pay  fo  much  in  Lieu  of  all  fmall  Tithes  Prohibition  <hn„M 

go;  Becaufe  Hops,  Oade,  and  luch  fm.ill  Things  of  new  Invention  are  Minuts  Decims    bur  fh^  W 

geftion  being  not  lo,  the  Prohibition  was  denied. 2  Keb.  612.  S.  C.  *  °' 

21.  The  Tithe  of  CW  Grafs  belongs  to  the  Vicar  who  has  the  Tithe 
Hay,  except_  only  only  fuch  Clover  as  was  necellkrily  cut  amoneit  the 
Corn  where  it  did  grow.   Cited  by  Gregory  J.  as  adjudged  in  the  Ex 
chequer  when  he  was  Baron.  Garth.  264.  Hill.  4  \V  &  M   R  r    ,„  rhl 
Cafe  of  Wharton  v.  Lille.  'i      ■  ^  ivi.  jj.  i^.  ,n  the 

22    If  the  £«^o:e;w.7/;  of  the  Vicarage  be/./,  the  Tithes  muft  be  paid 
according  to  Cuftom.  Per  Cur.  3  Salk.  379.  Anon.  ^ 


(D) 


[Prefentation]    Parfon.     Patron.  299 


(D)  Vkaragc.  Patron,   ff'ljo  ih^Whz  Pjtmi  of  Cof^mou 

Rio-fjt. 

I    r-f-i  l:>€  Parfon,  and  not  the  Patron  ofthc  Parfonago  Of  COUimOn  And  it  isup- 

*   1   Emljtisii^atuonot  tijcDicarmjCi  ^3zzmit  it  f^  mmi}'^^^;^\f;;;^ 
out  of  tlje  l^iiiTonasc*    Dubitatuv.  11  d.  sub.  Contra  5*  <ic.  2»  if  ^  />.,,;,„ 
Siuarc  jinipenit.  165.  pec  \m*  ^^^^^ 

and /f  xfei  He  Parfonasie  to  another,  the  Patronave  of  the  Vicnrafe  Jhall p.ys  as  h:cident  tliereunto  VV atC 
Conip  Inc  Svo  lo-.' cap. -.  cites;  Koll  Abr.  59.  And  Ikys,  That  upon  the  l.imc  Account  the  Rector 
of  Common  Richt  is  ever  I'atron  of  the  Vicai-a-e,  tho' by  fome  Ordinance  or  Compofition  it  may  be  ap- 

pomted  and  lettlcd  other^vife. Wats.  Comp.  Inc.  Svo.  -,45.  cites  SC    But  lavs  Quxre,   How  one 

PerroncanbeParron,viz,.Appropri.ite,  and  another  ("did  to  be  L'atron  ofthc  Parlona;;e  Appropriated, 
jbci-i?  as  is  fhewed  the  Inlieritance  of  the  Advowlbn  of  a  Church  appropiialed  mult  be  m  tl;e  ipiii- 
tuai  Corporation,  to  whom  the  Appropriation  is  made  ;  In  which  cale  it  is  clear  that  the  Parfon  Ap- 
propriate, creatin-  a  Vicava-c,  is  Patron  thereof,  and  cites  i-  E.  ;.  51.  and  it  is  iliid  that  a  Parfon  A p- 
Jropriate  is  Patron  of  the  Vicarage  and  cites  17.  E.  3  51.  b.  1 1  H  6.  18.  b.  As  wherean  Abbot  or  Pnor 
is  Parfon  Appropriate,  cites  19  E.  i.C^uare  impedit.  17S. 

2.  5f  a  Parfon  Appropriate  mm$  il  33tCatngC,  IjC  fljili!  U  \pdXm\  Where  Jp- 

of  it.  17  e.  3. 5u  (ipe  10  Ipati-on  auo  l^atfoii)  ftS f 

made,  avdV>cnyc,idcived,  the  frjl  P.,/,v»  fhall  be  Patron  of  it,  and  not  the  Ordinary.  Q^od  ™w  B'"- 
Prefentation,  pi.  10.  cites  50.  L  5.  25, 

3.  The  Chufing  of  a  Vicar  belongs  de  Jure  to  the  Prieft,  viz.  to  the 
Parlbn  ;  But:f  the  Pnrifrwncrs  can  prcfcnhc  to  ektl  bun,  it  then  belongs 
to  them.  2  Roll.  R.  304.  by  Name  of  Code  and  Hulmed.    [But  that 

feems  not  to  be  the  Name  ot  the  Cafe.  It  was  in  a  Prohibition.]  ^,    ,.  r 

3.  It  was  denied  by  the  Lord  Chancellor,  that  the  l"-"'''^'"  ^e  Jure  T.e  Cafe  ^ 
has  the  Nomination  of  the  Curate,  and  more  elpecially  where  the  Pivrjon  ^^j^^^  ,,^^ 
is  of  a  Lay  Fee.  Vern.  42.  pi.  42.  Pafch.  1682.  Mallet  v.  Trigg.  d,„,ircd  for  5 

Lives  the 
Crts  of  his  Preherd,  ii'tmh  covftjled  of  two  Impropiations ,  and  fo  now  by  the  Statute  were  become  Lay- 
Fee  •  In  the  Leafe  were  as  General' Words  as  was  polTible,  and  particularly  that  the  laid  Lcllee  Ihoukl 
find  tu-o  Fnars  for  the  aforelaid  Impropriations,  and  pay  to  one  lo  much,  and  to  another  fo  much  ;  But 
the  Lord  Chancellor  faid.  That  by  finding,  v.a^r,iea,:t  mair.taimng  only,  and  not  electing  o,- chuing; 
and  he  faid  there  was  a  cr,-eat  Difference  as  to  the  Parlbn's  R  ight  of  naming  or  chul.ng  his  V  icar,  where 
the  Parfon  was  of  Lay  Fee,  and  where  he  had  aCurc  of  Souls ;  For  inthc  later  Cafe  there  was  Realon  he 
fl-.ould  approve  of  the  Man  who  was  to  aA  under  him  in  fu  high  a  Trulf.  And  the  Curate,  thar  ^ame  in 
bv  Oppofition  to  the  Leifce,  was  elfablithcd  by  the  Lord  Chancellor,  and  the  Chanty  decreed   to  hm,. 

I  Vern  4'    Pafch.  i6Si.  Malletv.  Trigg.  fhisCafe  c.imc  before  the  Chancellor,    upon  Evceptions 

to  a  Decreeofthe  Comn-ilVioners  of  Charitable  Ufes.  One  E^jccption  w.as.  That  by  the  Statute  ot  the 
29chof  this  King,  none  but  Ecclefiartical  Perfons  could  augment  poor  Vicarages,  lo  as  to  be  eltablifhcd 
as  a  Charitable  l.'fe  within  that  Statute,  And  thattlic  LelVor,  in  thl.  C.ife,  who  was  only  a  1  rcbeadary, 
ivas  not  witliin  that  Statute.  Sed  non  allocatur.  Ibid. 


(E)  Parfon.   Vicar.    Who  may  he  Patron,     [And  of  their 

being;  Appendant,  pi.  5.]  vvatf  Comp. 

o      rr  1  -"  inc.sv'0545, 

u    A  Laynvan  uiau !)£  patfouof  a aDtcaraffc.  I X,  D,  6. 19.  €ontta re.'"'' 

r\     Qo'  (g^  2^  03^  WatfComp. 

2.  a  Layman  UUIP  bC  l^attOH  of  the  Parfonage,  and  alfo  of  the  Vi-  In^-  W 
carage.   11.0.6.19.  ciresS.  C. 

3.  a  Parion  aporopriate  nUip  bC  PattOU  Of  tl)C  DlCataiJC.    1 1  I).  6.  Scc  (D)pl, 

18.  b.   17  €,  3'5i-  ti.  39  €.'3-  33-  uiljcrc  abDot  or  li)rior  10  p.K=  1. 

fOlU  i9€.2.  CluatC3mpeTl!ti78.  ,,  ^     o  1  vvn'-r.n,o 

4.  ctjE  King  may  be  l-^atvon  of  a  picavairc.  1 1  ?p,  6.  is.  u.        JJj";.,^"  ?' 

345   cites  S.  C 
5-  '€ljZ 


300  Prcfentation.      Parfon.     Patron. 

^  fcuir.  SS.         5    vJI^'ije  ^DtCflrngC  may    be   appendant    to  a  Manor  by  Prcfcription, 
y-  ■     though  of  Common  Right  it  appertains  to  the  Parlbnage  ^  jfOC  It  ITlWOt 

nuy'bl"!-  ^^  BtnntcB  o^cr  bp  tijc  parfon  before  Ctnie  of  sgemorp,  or  bp 
p,;uLwt  to  a  Compofitioii*  i^pEcportS  13  la*  betuiccn  tlje  X/V/^  aut/  .sacker.  iab= 

JW-,  and    )Utin:cD*Q9lCl}.  nla*  15,  bCtUiecn  tljC  i^^^?//  and  Chapter  ofExehr  and 

l^^'/v'  ^""'%^"^"'"'^"'s  adiudged  contra  ;  per  Coke.  Roll  R.;;  7.  Mich. 15  Jac,  S  C. ThouE^h 

thcifcciLYw  of  the  Viciirage  uCually   <7;);)pr/rt7n(  to  the  Purfonage,  yet  it  is  not  of  Neceffitv,  and  it  mw 

he  appertaining  f,  a  .)/rt,w.  Cro.J.  ^Srt    the  King  v.  Biftop  Norwich,  Cole,  and  Saker. -^ VVit'f 

l.omp.  Inc.  bvo.  ic-,  ,oS.  cap.  7.  S.  P.  and  cites  fame  Cafes,  and  Mo.  S94.  [pi.  izjSj  Mi.h.  16  [ac 
tliat  in  this  Cafe,  though  tlie  Right  of  Appropriation  be  not  extant,  vet  the  \J^c  of  Prefentirg  Time 
out  Of  Mind  is  a  lufficient  Evidence  of  the  Appenduncy  to  the  Manor  &c.  contrary  to  Common  B.'Mm 
6n-Gco..Shirleyv.  Underbill  and  Bur(l-y.  '  " 


See  (T)        (E.  2)  Piitron.      frhojhall  be  f aid  to  be  a  Patron. 

For  this  is  a  I-  T  N  Qua.  Imp.  if  a  Man  grants  to  me  that  I  pall  have  the  Nounna. 
Patronage  „  J^  ^"^"  cj  a  Ckrk,  atid  he  ivill  prefect  him  to  the  Ordinary,  there  I  am 
and  the    '     Matron  i  e  contra  where  he  grants  to  me  that  I  pall  name  t-ivo  and  he  /ball 


tl.  121.  cites  good  Grant  ot  the  Prcfentation.  Br,  Grants,  pl.^ioi.  cites  14  E.  4,  2. 

:4E.  5.  69. 

He  thai  KMics  theOerk  is  Patron,  aud  not  he  who  is  to  prefcnt  him.     Br  Ouare  Impedi%  pi   ci 

c:tss  4.  H.  4.  10.  1 1,  [bat  it  is  mifprinted,  and  fhould  be  as  in  tlic  other  Editions)"  14.  H.  4  ]       ^  '  '  ' 

2.  Grantee  of  the  next  Prcfentation  is  Patron,  Pro  ilia  Vice.  Br.  Grants 
pi.  112.  cites  7  H.  4.  2.  ^ 


(F)  Vicar.      Endowment.     The  lukrefl  of  the  Vicar  in  the 
Things  whereof  he  is  Endowed. 

thsMs  xI'e    '•  VS-^^^^  ^'J*^  %UXm  Of  14  E.  3.  cap.  16.  a  Vicar  had   not  .anv 

Tstat  1  a)  i^ninktenement  in  the  Glebe  of  the  Vicarage. 

cap.'i-.  '  2.  For  IjC  could  not  have  a  Juris  Utrum  f(3C  ^tI)C  (g^ICbC  Of  bi^  lU- 

whiche-     Ciir.ise, 9 €♦  3-  50- 

nactcd.  That 

Fayi;,u,  luars.  Wardens  of  Chapels,  tend  Pnvoji  Wardens,    and  Priefis  of  perpetual  Chanteries  ihall  h  ,^e 
their  U  rtts^  0}    jur.s  btrum  of    Lands  and  Temmcits,  Rents  and  Pcffeffons,  annexed  and  ohen  perpetually  ],i 
Alms   to  ticarages,  Cfapels,  or  U.ariteries,  and  recozer  by  other  IFrtts  in  their  CUe,  as   'far   forth  as  Par 
Jens  of  Churches  and  Prebends.  ■' 

In  Jtiris  Utrum  it  was  agreed,  that  for  Land  betzi-etn  Par/on  ane  Vicar,  of  which  the  Hear  is  endo-.ved  h 
T  r//.'"'"'y>.  --^"lon  did  not  lie  at  Common  Law  between  them,  but  the' Defendant  mio-ht  plead  to  the 
Jurifdiaion  in  an  Aition  brought  ag.dnft  him  by  the  Vicar,  but  of  all  other  Lands  tlfe  Vicar  might 
implead  the  Parfon  at  Common  Law,  but  not  of  the  Endowment  ;  for  of  that  the  Franktenem^nt  re 
gained  m  the  Parfcn-  font  \s  done  only  by  the  Ordinary  by  Affent  of  the  Parfon,  and  therefore  no 
i-ranktciiement  palled  as  it  is  (aid  there  ;  and  yet  by  Endowment  of  a  Feme  £x  aflenfu  Patris  Frankte 
nement  pafles  and  (omc  laid  there  that  a  Vicar  of  his  Jncie^t  Endo'^ment  may  havs  *  Action  at  Common 
Law  againft  the  Parfon  ;f,ua:rc;  for  Fynchefaid,  That  in  ancient  Time  it  was  the  Opinion,  that' as 
\  tear  ftould  not  have  Action  agamft  the  Parfon  at  Common  Law,  But  contra  by  him  at  this  Dav  which 

IS  the  bcft  Order  as  he  (aid.     (luxre.  Br.  Jurifdittion,    pi.  5.  cites  40  E  ,.  zS . Br   Dean  and 

Chapter    pi.  ..  cites  40  E^  5    27.- ^Br.  Juris  Utrum,  pi,  2.  cites  S.  C. Br.  Precipe,  pi.  z6. 

cites  S.  C- *S.  I .  Br.  Precipe,    pi.  2o\  cites  12  All.  4  14.  But  Brooke  fays,  fee  now  the   Staiute 

14  E.^.  cap.}-,  which  girres  Action  to  the  Vicar Godolph.  Rep.  19-    c-,p    -8   S  "  •  <ivs  That 

row  It  fecms  the  Freehold  of  the    Glebe  of  the  Vicar.^ge  is  in  the  Vicar  hlmfelf,  and  rot"'in  the  P.-u-- 
lon  ;  l<or  that  tuE  I  oflcliiwu  ot  t!;c-  Viuir  and  Parfon  a;c  ftvercd,  and  each  of  th=m  ihail  h>ve  'everal 


W:lt5 


[Prefcntation.]      Parfon.      Patron.       301 


Writs  concerning  their  refpeftivc  Rights,  aid  (lull  not  join  in  one  Writ ;  And  the  Vicar  HmII  hr.e 
und  maintain  Juns  Utrum  againll  the  Parfon,  who  is  the  Patron  of  the  Glcoe  ot  the  \  icarage  br  t,.e 
llime  Glebe. 

3.  a  P>-3:cipe  mm  not  13C  btOUSUt  fOV  tIjC  Glebe  Of  tIjC  VitHXm  ^^^l^^' 
againft  tljC  a^lCar  lUlttjOUt  Naming  ot  the  Farlon.    3  C  3-  ^T-     6  (t,  ^.^^^^^  ^,^ 

2     TQ.  Franktenc- 

ment,  againft 
vvhomthe  Land  of  the  Vicarage  might  be  demanded.  Br.  Deane  Sec.  pi.  1 5 .  cit.vs  S  Aff  ;6.  and  tlur 
it  was  faid  9  Aff.  3.  that  the  Vicar  was  not  <Tenant  of  the  Fraiiktemmcnt,  and  lo  it  Iccms  that  the 
Fraiiktenement  thereof  was  in  the  Parfon.    Quod  Nota  bene. 

4.  cue  m^X  fijaU  Ija^JC  Aid  of  the  Parfon,   Patron,  and  Ordinary.  SecCH.  2) 

^  5*  The  plaintifl' being  induaed  to  a  Parfonage,  [Vicarage]  the  De- 
fendant notvvithltanding  hpt  the  Pa[fi[/ion  ly  Force,  whereupon  the  Plain- 
tirt  [the  Vicar]  was  forced  to  file  his  Bill  in  Cbancc-ry  ;  but  the  Deten- 
dant  demurred^  bccaafe  the  Vicarage  is  his  Freehold  and  Inheritance,  and 
liprcfcrly  det emu n able  at  Law  ;  yet  the  Demurrer  was  over-ruled.  Toth. 
171.  cites  5  Jac.  Webb  v.  Smart. 


(G)    ParforL     The  *  hterell  of  the  Parfon  in  the  Church    foi  ;;:• 

ami  Church-yard.  see  (k.)  pi' 


5, — Chinvh- 


I  nriDS  Parran  map  leafe  tlie  Cljurdj  nntJ  Cljutclj-f  arts  by  Leafe  Z  The  Par- 

I      ot  the  Patfonage.   8  $[).  0.  9-  Sl'amitteO*  {:'"  Yf^  ^ 

the  PoiTed^on  of  the  Church  and  Olebe.  having  the  Freehold  in  himfelf,  and  mav  receive  tue  Profits 
Tithe^;  Oblations  Obventions  and  Offerings  to  his  own  Ufe,  without  the  Patron  s  or  Ordinary  s  Con- 
lent,  who,  without  hi.  Coaf.nt  and  A-.-eement,  can  d.  noting  dur.ng  his  la.umbcncy  to  charge  th= 
Church  orhi.sSucceiTors  ;  And  not  only  is  the  Freehold  ot  the  Church  in  the  Parfon  but  ^^^ }]^\fo 
t-ieRi"ht  of  the  Church-yard  and  Glebe  mh.m,  wherc-ot  it  he  be  put  out  of  PofleiTion  or  uiiklled 
he  may  have  an  Alh.e,  r.r  if  he  be  qefted  he  may  have  TrefpaCs,  and  fo  may  the  Vicar  have  .jga.rft 
a  fitraiicer  if  he  be  diilcifedof  theCimrch-vard.  but  not  agamll  the  Parfon  hnn^clf.  t  or  the  Parfon 
IhaU  have  an  Afllfc  or  Action  of  Trefpafs  offuch  Things  as  are  annexed  to  the  Church  or  Glebe,  or 
for  cutting  down  of  the  Trees  or  doL-g  of  Trefpais  in  the  Church-yavd  or  Glebe,  thel^ight  and  In- 
tercft  thereof  being  in  the  Parfon  But  if  the  Bells  in  the  Steeple,  the  Ornament  of  the  Clurch,  or 
the  like  be  taken  away,  in  that  Cafe  the  Adion  dees  not  belong  to  the  Parlon,  but  to  the  Churchwar- 
dens Notwithrtanding  the  Par'bn's  Rightand  Inte'cll  as  aforeiaid,  yet  he  cannotcut  down  the  Trees 
Prowina  in  the  Church-yavd  of  his  Parifh,  fave  for  the  Repair  of  the  Church.  Or  if  a  mere  -Stran- 
ler  cut"  them  down,  no  Suit  can  be  thereon  in  the  Spiritual  Court  for  Dam..ge. ;  For  if  Suit  be  there 
commenced  in  the  Cafe  for  Damages,  no  Confultatlon  fliall  be.  Nor  can  the  Parlon  have  Aclions  for 
Seats  in  the  Church  taken  away  by  a  Stranger,  becaulb  they  are  not  hxed  to  the  freehold  ;  But  the 
Chuichv.avden  may  have  Action  in  that  Cafe.  Godolph.  Kep.  ib6,  187.  cap.  i;.  S,  3. 

'    2    8T).  6  9    CIlC  Lcllee  at  Will  of  the  P.irfon  brought  Trefpafs  of  Br.  Dean  atjd 
his  Cloie  and  Houle  broke,  lUi)ICi)  m<i  Of  tijC  €i3UrClj  aUO   CljUrtl);  ^S:s  & 

pam,  aiiD atmiittcn tnaintamable.   (It  fecmg bp  tl)c  iboou  tljat  it  —BrTref. 

toil?S  for  ccminij;  there  not  in  Tmie  ot  Service  ,  Or  UlCl)  UKC,  Ullt  at  pals,  pk  121. 
.1       ^TTttno  f^  cites  S.C. 

%    3f  tlKVci'C  a  Parfon  Appropriate  of  a    Church,  and  aifO  a  Vicar  Roll. R. 25,-. 
endowed  thercoi,  KjC  Trees  m  the  Church-yard  bclOnO;  tO  tlJC  DlCat,  ^^,^-^?^'^ 

snti  not  to  tljc  l^avfoit ;  if  or  it  fcenis  tljat  tte  iDicar  ougot  to  repair  J3«'^^  -  J 
the  Church,  aiiDDciuDocucijt  to  repair  tljc  Clrardj  fijalUjaUc  tlje  a  Parr„nlf 
Crces,  Dubitatiii.   i^iclj.  13  Sa.  "B^E. -t!"'/'?w^''''-s  €afc.  church  can. 

.«>>vv^«    -».-  --  notcutTreci 

prowirg  in  the  Church-yavd,  unlefs  to  repair  the  Church.  But  Coke  cited  a  Statute,  and  laid,  that  in 
the  End  thereof  it  is  laid,  (after  fpeaking  of  cutting  ot  frees  .^rowing  m  the  Churcn-yard  tor  Repara- 
tion of  the  Church)  Et  fi  non  Prscipimus,  tamcn  Fadtum  non  Condemnaraus. 


4.  Where   there  is  a  perpdaal  Vicarage  endiwed,  and  the  Vicar  ra«M 

dtitfio      '    '  '^' '' '" 

4  ^ 


ill  by  Admijion,  Injlitution  and   IndtUiion,  ferjorms  Di-vine  Service,  pays 

i  '  tl'JQ 


c^oi        [Prefeiltation.]     Parfon.      Patron. 


the  Symdah  and  Procurations^  and  repairs  the  Chancel^  it  has  been  adjudg- 
ed, that  llich  aVicarlhall  have  the  Trees  in  the  Chuich-yuid.  Aig. 
Vent.  15.  Palch.  21  Car.  2.  E.K.  in  Ca(e  ol  .Heath  v.  J'rin. 


(G.  z)  ydcfio//j.      irhat  A6tions  he  may  have  for  Trefpafs 

&c.  done. 

Jni  h€  msy  I.  TF  a  Man  EjeBsa  Parfon  without  Colour^  he  Hull  have  Trefpafi.  Br. 
XxM'c  Jfffe  of  I  jy^.^^  ^j^j  Chapter,  pi.  12.  cites  28  H.  6.  19.  per  Markham  :  Quod 
a„SS    -alitheJulh-cesconJlht.  ' 

and  Glehe, 

aijainit  a  .StiMnwrr  uho   has  not  Colour,  or  who  is  a  Tort-feifor  therein  ;  For  it  is  his  FriP.ktsnement. 

Ibid. JiiH  he  fliall    have  I'reffaji  of  taking  lis  'fevths.  ■  Ibid. 

2.  A  Parfon  may  have  Juris  iitrura  after  Reco\ery  by  Aftion  tried 
again  it  his  Predeceflbr  ;  and  he  may  have  CeJJavit^  Writ  of  Efcheat,  and 
.G)iicd  permittat.  Br.  Dean  and  Chapter,  pi.  27.  cites  F.  N.  B.  tit.  Juris 
IJtrum. 

3.  A  Parfon  (hall  not  have  higrefftis  ad  tcrviintim  qui  pretcriit^  but  Juris 
Utrum  i  for  he  has  not  properly  Fee  Simple,  and  this  Writ  of  Entry  ought 
to  be  brought  only  by  him  who  has  Fee  Simple.  But  \\  rit  of  Entry  fur 
Dilfeilin  is  otherwife.  Br.  Dean  and  Chapter,  pi.  2S.  cites  F.  N.  B.  tit. 
Ingrelfus  ad  terminum. 


Sec  (H  t)  (H)      Parfon.      Vicar.     Re-umted.      Er/hrgcd. 

Ley.  14.  s  I.  TJF  tljerc  be  a  iDicar  ann  a  issavfou  apprapriatr,  the  Ordinary  and 

C  — For  if       J[_  the  Parlbn  appropriate  may,  in  Tune  of  Vacation  of  the  Vicar- 

the  ordiravy  ^g,.^  Re-unite  t!)c  ©icaragc  to  ti)c  parronafce.  (^.  7  Ua.  15*  K. 
'^''n'^Tnd  ^t"tford's  Cafc  upon  Kcfcitntc  out  or  tijc  Court  of  ilB>arD5.   ao» 

SnfoHdate     UHttCU  fa])  tljC  JlUftlCCSi* 

the  Vicarage  ^  i     .-. 

to  the  Rcaory  or  Parfonage  out  of  which  it  w.'is  endow'd,  to  be  holdeii  by  the  Corporation  .Spiritual, 
and  his  or  their  Succeflors,  that  were  Parfons  of  the  appropri.ited  Church,  together  with  rhjt  where- 
■witli  it  was  erdow'd,  to  his  or  their  proper  Ufe,  lb  that  the  Appropriator  fliould  have  and  take  C.irj 
of  the  Souls  which  the  Vicar  h;id,  and  the  Patron  who  is  the  Appvopriator  doth  concur  thereto,  Tliis 
is  fdid  to  be  a  DilTulution  and  Keftitution  of  the  Vicarage  to  the  Parfonage,  and  good,  and  is  net  fuch  an 
Jptrcpri.uion  of  the  Vicarage  ns  is  made  void  hy  the  Statute  of  4  //.  4  cAp.  1  z.  as  was  admitted  by  the  Juf- 
tices  upon  Reference  out  of  the  Court  of  Wards.  Mich.  7  Jac.  B.  R  ^fafforD'S  Cafe.  But  then 
this  Rcftitution  yvufl  be  made  upo:  the  Reafon,  that  the  Jppropriator  is  brcome  Poor,  and  doth  want  fuch  Ref- 
titution,  4c  E.  5.  2S.  And  fuch  DiOblution  and  Reftitution  of  the  Vicarage  may  be  as  well  made  •aben 
fucli  Vicarage  is  full, if  it  be  /aid,  that  itjhal!  be  after  the  *  Death  of  the  Incumbent,  as  when  it  is  Void  ;  and 
fuchVicar,iSes  as  were  held  from  the  Time  that  the  Reftitution  was  to  take  F.tfeCt  by  the  refpedive  Ap- 
cropriators  with  the  Parfonage,  a^  one  intire  Church  without  any  Vicar,  until  fuch  Time  as  they  came 
to  the  Crown  by  the  Diflblution  of  the  Monafteries,  cannot  now  be  prefentable,  but  the  King  or  his 
Patentees  fhall  enjoy  them  as  free  as  the  Appropriators  had  or  held  the  fame  ;  and  although  ihat  fuch  like 
Refiilutictis  or  Unions  laci.  been  any  VS'ay  defeBive  at  the  I'ime  of  the  making  the  fame ;  yet  being  good  in  Re- 
puiatioi:,  the  Statute  of  Dijfduiion  of  Monafterics  hath  fully  fettled  them  in  the  Crown.  VV;.tf  Comp.  Inc. 
Svo  "49,  ;50.  cap.  1-.  cites  Ley.  14.  Mich.  1609.  Strfftord's  Cafe,  and  4  E,  5.  27.  and  Cro.  J.  517.  ia 
Britton   and  Wade's  Cafe,   and  Cro.  E.  S73.  Hill.  44Elii   Robinfon  v.  Bedle,    aid  Palm,  "i  13,  21.9, 

Mich.  iS  Jac.  Britton  and  Ward's  Cafe. . — ■ But  there  was  a  Difference  taken  (by  JNIoubray)  when  a 

Layman  ei-ei  Land  to  one  that  is  a  Vicar,  and  when  the  Hear  is  endoived  hy  the  Ordinary  of  the  Parfon  t 
Land  &c.  For  in  the  firft  Cafe,  the  Ordinary  hath  no  Power  to  dillblve  the  Vicarage  m  to  the  Land, 
tho'  he  hath  in  the  other.     W.-itf  Comp.  Inc.  Svo.   551.  cap.  17.  cites  4E  ;.  27.  See  20  E  3.  Annuity 

-2.     16  E.  5.  Annuity  24.  and  40  E,  5.  28    b. *  S.  P.  Or  ahtv  ReJJiyiation.     Br.  Appropriation. 

pl.'2    cites  50  E  q.  z6. If  Parfon  and  Vicar  are  in  one  Church,  and  the  Vicara^-  voids,  and  A.  iJ. 

prefents  C.  to  it  as  Parfon,  this  makes  C.  Parfon,  and  Writ  lies  againll  him  according!/.  Br.  Deane  Sec 
pi.  24.  cites  II  H.  6.  18. 

2.  Jf 


[Prefentation.]     Parfon.     Patron.       50:^ 

£♦  3if  tljCiE  ttC  il  Puribnage  appropriate;  in  an  EcclcJiaftical  Perfon,  When  the" 
which  nc\cr  came  to  the  King  bv  the  StatLUc  of  Monaltcrics,  illlQ  it  ^'^"'^';v  »* 

3,^icnragc cnnauico tijcrc alfo,  antitljc pacfon  nlal^c0 a Lfafc  of  tljCor'/'"'Ar 
i^nrfonaffc  for  iLi\)C0,  accortiuio;  to  tljc  S'lratutc  of  32 1).  s.  the  v  icarp,.M'';,.,ti,e 

may  lOCll  lue  HI  tijC  ^CClcriafltCillCOUrlagaUlfl  clieParfoii  and  his  Leil-  Ordinary 
fee,  IDljO  comes  m  liy  tijC  statute,  lor  Addition  of  Maintenance,  aUO  """V'-^^''"* 

tlje  ®i-Diitarp  map  uicll  compel  tijcm  toincrcnfcftto  a9aintenancc;o7-/'^^;;';^ 

for,  upon  all  Appropriations,  inch  Power  fO  lUClXafe  tljC  iT^aiUtl-UsinCC  ir.  iVc„t.qv 
of  t'jE  i)iCar  was  reler^  ed  to  the  Ordinary,  and  the  Lclice  comes  in  llib-  cites  i  Cro. 
jea  to  this  Charge,     mi  9  Car,  1$,  IR*   DetiUCCil  Hiu-hcot  J^laUftlif,  l'^^-"'T  '■; 

am  T'honibHrmigh  nitu  /i^/^vrr.^  2)cfc!i5antg  ■■>  Cljc  li5!a(!ittff  Dana-  2  rou 
ijicaroftDcl^artaj  of  iprcfljut  In  Comitarti  m\m,  ann -©Dornlntr-,;.)  _, 
toucO  12)arron,  tlje  Cfjurclj  ticins  appropnatcu  to  tijc  gaffer  of  tlje  '''''^-e  ^<^^^^ 
CTijoinucry  in  tljc  Cai.jcoral  cljiircJj  of  ©arum,  Debcunx  a9aitcr,'-°  ^'-'  =*  °-^- 
nnD  tijE  otljcr  Dcfcnlifiiit  Uring  f)i.SLcltcc>   liUUi  upon  (Uclj  €>uit''herravi 
nsama  tIjc  Defcnoaiit^  bi)  tijc  i">!car  ni  tije  (Ecdcfiamcal  <£ourt,  acarfu.^sai^y 
proljibitiou  QcuiO  bang  mobcD  bp  ^T3aftcc  ^afon.  hxp.^nator, 

and  where 
the  Impropriator  is  a  Spiritual  Per  ci, ;  for  in  the  laft  Qife,  'ti^probabk  lie  mav  fue  for  an  Aiigmcntarion  ;^ 
and  in  fonic  Cafes  where  the  Impropri.ition  is  not  a  Lay  Fee,  as  in  the  Cafe  of  ihcClon-tflers  ofS.ilhlnoj, 
ivhcre  the  Appropriation  of  a  Parfonaj^e  was  made  to  them  before  the  Statute,  and  continues  fo  dill; 
and  in  fucli  pife,  the  Bifhop  may  make  a''.  Augment  .don  if  that  Power  is  rcferv'd  ;  for  the  Perfons  are 
fubjedt  to  his  Command.     5  Salk  3;S.  Luttea  v.  King. 

3.  If  an  AdvoivfcH  be  fjppropvhncd  to  the  Athot.^  and  A.  B.   brings  Writ  of  Brook  fays, 
Ri^^bt  of  Advoivfvii  by  elder  Title  then  the  ApproprntwH  /Sy  and  recovers  the  '^^^  lve,'iion 
Advowdbn  ol'  the  Parlbnage,  where  a  Vicar  is  tndo\so\iy   there,   he  fhall  re-  f'^^"."  ^°.  ^^ 
tover  both  the  Vicarage  and  the  Parfonage.     Br  Judgment,  pi.  13S.  cites 'j^|'^'"J"^^,'  y^^ 
16  E.  3.    And  Fitzh.  Grants  56.  pc.p-i.-'thn  ' ' 

there  ii\rs  no 
f'k.ii-.iffe,  for  the  Vicar  was  m.ade  and  endow'd  when  the  Appropriation  was  made;  a-,d  hv  Re.c-jcry  ly 
iliier  -Title  thnti  the  Jppropr'iiHioii  was,  it  is  now  made  a  Parfonage  again  alone,  and  the  Ficarage  dijfoived  bi 
tlis  Jiuigir.e?it.     Br.  Judgment,  pi.  13 S. 


th 


4,  In  Trefpafs  for  taking  certain  Loads  of  Wood  fet  out  for  Tithes,  WatrComp- 
the  Defendant  pleaded  NotGuilty.     The  Plaintiff  tor  Evidence  ilievv'd,  iK^-^vo.^fo. 
that  in  the  Time  of  King  E.  3.  the  Rectory  was  impropriated,  and  the  g^^  '•'"'""^^ 
Vicarage  thenendow'di  and  (inter  alia)  the  Tithes  of  Wood  were  al- 
lotted to  the  Vicar.     The  Deicndant  iLe-As,  that  for  160  lears  Liji  palt 

there  had -not  been  any  Vicar  prefeiited  there^  until  the  Plaintiff  obtained  a 
Prefentation  Irom  the  Queen  bv  Colour  of  Lapfe  ;  And  lb  pretended, 
that  in  regard  it  had  continued  fo  long  in  this  Manner,  that  it  re-united 
again  to  the  Rectory.  But  the  Court  informed  the  Jury,  that  altho'  a 
Vicarage  is  always  taken  out  of  the  Parlbnage,  and  for  the  Keceliity 
thcred  may  be  re- united  to  fupply  tlie  Parlbnage,  ji/,  by  Coritinuance 
C)f  Time  in  not  p relenting  a  Vicar,  which  is  tlie  Uelauk  of  the  Parfoii 
himieltj  it  ought  not  to  be  adjudn-d  lohe  a  Difcontinttance  of  the  VicaragCy 
hut  fomf-juhat  ought  to  be  Jhe-jun  of  the  re-unit  ing  thereof;  VVherelore,  by 
the  Court's  Direftion,  the  Jury  found  for  the  Plaintiff.  Cro.  E.  873. 
Hill.  44  Elii.  C.  B.  Robinfon  Vicar  of  the  Church  of  Kimbokon  v. 
Bedel. 

5.  A  Parfonage  was  appropriated  to  the  Deanrv  of  St.  A.  in  24  H.  8.  S  C.  cited 
and  a  Vicarage  endow'd ;   and  afterwards  the  Billiop,  in  24  Eliz.  dil-  Goduiph. 
Iblved  the  Aicarage,  and  Parry  pretending  that  this  Vicarage  was  not  ^^^P„'9g' , 
diliblved,  but  that  it  was  in  the  King's  Hands  by  Lapfe,  obtained  a  -1  s.c.citai 
Prefentation,     And  'twas  refolved   by  the  Barons  of  the  Exchequer,  2  Vent,  55  — 
that  ajtcr  the  Statute  of  ^i  H.  8.  which  made  Varfonages  Lay-Fees,  the  Or-  S  ^-  cited 
dmarj  way  not  dijjbhe  the  Vicarage  -jahen  the  Parfonage  is   tn  a  Temporal  j   ''|l*"""7' 
Band^  lor  that  ihould  be  to  deitroy  the  Cure.     But  being  in  this  Cale„p"i-,''' 
apprcpriJted  to  the  Dean  cf  St.  A.   it  lb  remainins,  in  his  Hands  may  veiy 

*veil  be  diliblved.   And  according  thereto  was  the  Opinion  of  Doderidg'e 

j.  Ci-o. 


304-  [Prefcntation.]     Parfon.      Pdtron. 

J.   do.  J.   518.  Mich.  16  Jac.   B.  R.  in  the  Cafe  of  IBrtltaU  '0.  IMXit 

ciics  it  as  the  Cafe  of  Parry  v.  Banks, 
s.  C.  2  Roll;  6.  The  Prior  of  D.  was  fcifcd  of  the  Jdvowfun  of  N.  appropriated  to 
Kcj).  12-.  his  Priory,  and  alfo  of  the  Vicarage  of  N.  endoiv'd  'with  the  Altarage  and 
Mi^-h.  I-.  fuall  I'i.thes.  The  Appropriation  and  Endowment  were  both  in  the  'time 
"A^idtnc  "/^  ^^".^J^^">  ^"d  continued  'till  the  Time  of  Hen.  6.  when  the  Pope, 
Court  lie-  in  regard  the  Priory  vvas  poor,  granted  by  his  £////,  that  the  Prior  Jtoitld 
cl.ii-'d  tlioii-  app'vnt  one  of  his  Afonks  to  officiate  the  Cnre^  "who  fhottld  be  removable  ad  Nu- 
Ojiinions,  ^,,;;;  Prions.  The  Quellion  was,  Whether  the  Vicarage  was  dilltilv'd  ? 
Stmites'of  R'-folv'd,  That  a  "Vicarage  perpetual  could  not  be  dilfniv'd  after  the 
IS  R  2.  and  ^'tature  oi  4  H.  4.  and  that  the  Pope  could  not  make  any  Ordinance 
4  (-1/4.  do  agai nit  that  Statute  which  was  in  the  Affirmative,  and  cited  11  H.  4. 
not  extend  xhxt  the  Pope  cannot  difpenfe  by  his  Bulls  with  the  Temporal  Law,  tho' 
^'^onsm^idc  '■'^^^  ''^'"'^  InOrdine  ad  Spiritualia;  and  there  were  noWords  that  amount 
atccrwsi-dv ;  ^^  ^  Diilblution,  but  the  Words  only  are,  that  the  Vicar  Ihould  be  Ad 
for  the      '    Nutum  Prioris.     Cro.  J.  515.  Mich.   i6jac.  B.  K.   Britten  v.  Wade. 

Words   of 

the  Statute  are  in  the  future  Tenfe  (That  from  henceforth  &c.)  and  further  they  held,  that  the  Inftru- 
nient  of  tlie  Pope  liad  diflolved  the  Vicamge  ;  for  the  conftant  Ufage  and  Reputation  fubfequent  (w  hich 
are  the  bell-  Expofitors  of  the  Aft)  dc'-larc  the  Validity,  Intention  and  Force  of  the  Inltrument  made  by 
the  Pope,  vi-.  Tliar  it  amouits  to  a  DilTohition  ;  And  Mou  itague  Ch.  J.  founded  a  2d  Reafon  there- 
upon. For  inafiTiuch  as  always  after  29  H.  6.  'till  ;i  H  8.  it  rcmaired  in  Reputation  to  bean  Impro- 
priation without  ■Vicarage,  becaufe  the  Statute  of  51  H  S.  gave  it  to  the  King  in  the  fame  Manner  as 
then  it  was  5  And  all  the  Jufliccs  fliid,  that  great  Inconveniencies  would  follow,  if  fac\\j!eejii»^  ('ic.tr- 
A^es  fhould  revive  after  !b  long  a  Time  ;  for  there  are  feveral  Impropriations  in  England,  for  which 
Men  have  given  valuable  Confiderationstothe  King,di(charged  of  \'icarages.  But  UoJeridgeand  Hau"-h- 
ton  I.  neld,  that  admitting  th-j  Impropriation  had  been  within  the  Statute  of  1 5  R  .  2.  and  4  H  4.  then 
the  Rifliop  is  rellrain'd  and  the  Pope  alio  from  diflolving  tiie  Vicarage,  for  orherv. ill-  the  (aid  Statutes 
migl;t  be  eafily  eluded  ;  for  when  the  Impropriations  are  made,  and  the  Vicarage  end^w'd,  according 
to  the  Words  of  the  Statute,  the  Bifhop  will  immediately  dilTolvc  it,  which  would  be  contrary  to  the 

Intent  of  the  Statute. Godolph.  Rep-  202.  cap.  18,   S.  17.  cites  S.  C.   that  the  Vicarage  was  notdif- 

Iblv'd. S.  C.   cited  Watf  Comp.  Inc.  8vo.  550.  cap.  17.  And  fays,  that  the  Words  are  not  liiffi- 

cient  to  make  a  Diilblution,  nor  do  amount  to  iuch  ;  nor  do  they  fo  much  as  give  the  Prior  Power  to 
lake  the  Profits. 


*  There  is  *  (H.  2)     Pai'lon.     Vjcar. 

v.o  Letter  to  ^  ' 

tl.is  in  Roll. 

Br.  Dean       ^*  TiT  tljC  Vicarage  be  diminilTied,  it  (IjilU  have  more  of  the  Parfonage, 

&c.  pi  25.      X  If  tfjc  Ecuuumt  be  not  fufficient.    31  ^^''♦h* 

u^^^i^'^'n  2»  3f  tije  Parfonage  be  impoverilhed  nuti  fO  milCl)  DCCaU'D  that  the 
and  Yefve°"  P-^'lon-^ge  llP  Itfclf,  nor  the  Vicarage,  have  fufficient  to  lullain  them, 
'ton. Go-  tfjen  tIjC  r^ickaw  (^all  be  UCtecminctl  nitD  reltored  to  the  Parlonage  i 

doip  Rep    nuB  tlje  Doctofis  agreed  tljcreto*    3 1 0*  6*  14, 

199.  cap.  iS. 

S.  II,  cites  S.  C. VVatf.  Comp  Inc.  Svo  357.  cap.  17.  cites  S.  C.   and  40  E.  ;.  28      [Infra  pi.  -, 

S  ]  But  this  now  to  be  underftnod  of  a  Parfonage  in  an  Ecclefiaftical  Pcrfon,  which  never  came  to 
the  King  by  the  Statute  of  Monafleries  ;  and  if  the  Parfon  hath  made  a  Leafe  for  Lives,  according  to 
the  Statute  52  H  S  the  Vicar  may  well  fue  in  the  Ecclefiaftical  Court  againft  thePerfon  and  his  Leifee 
that  comes  in  by  the  Statute  for  Addition  of  Maintenance  ;  and  the  Ordinary  may  compel  them  to  in- 
creafe  his  Maintenance;  for  upon  all  Appropriations  fuch  Power  of  increafing  the  Maintenance  of  the 

Vicar  was  referved  to  the  Ordinary   by  the  Common  Law.     March.  87.    ;  E  2.   -4.  Mar.  S;. 

p!    140   fays,  That  this  Power  Augendi  vel  Minuendi  was  for  the  general  Cure  of  Souls. 

3.  Jf  il  Charge  be  ariliftg  upon  the  Vicarage,  tt  fij.^li  bC  recompenfed 
out  of  the  Parfonage.     31  \),6^  14, 

For  being 

orip-inallv  endowed  out  of  the  Parfonage,  the  Vicar  was  to  have  Aid  of  the  Parfon  if  he  were  im- 
pleaded for  anv  Thit'g  touching  the  Vicarage,  and  the  Parfon  was  fvibjcit  to  every  Charge  of  the  Vi- 
carage.    Godolp.  Rep.  197.   cap.  18.  S.  2.   cites  31  H.  6.   13.  by  Yelverton. 

Sec  pi.  10.  4,  Jf  a  Parfon  appropriate,  who  is  P.itron  Of  t()e   C>iCutil5C   Cf  t\)t 

^'^^  ClUlC  CiHirCl),  by  Agreement  between  him.  and  the  Ordinary,  prdeuts 

ths 


in 


Notes 


[FrefentadonJ    Parfoii.     Patron.  305 


the  Vicar  to  t\)t  l^nx^m,  tl)W  unites  t})e  l3arfoiiiin;c  rtttO  iDicaraffc  ^odoiph. 

tOgCtljCr.     44<£*3»53.  b.     ammtten  44  ^(T*  37*    ■  cap'',s.t,r. 

cites  S.  C. — Watf.  Cotnp.  Inc.  551.  8vo.  cap.  1-.  cites  S.  C.  And  fays,  So  that  the  Prerentce  ih^iU  have 
all  the  Tithes  and  Piohtsof  the  Church. 

5«  But  if  tl)t  Leflee  of   the  P^rfonage  prefents  tIjC  X>iCHt   tO  tIjC 

parfonagc,  tljisi  «mo!i  fljall  not  DinrT  tljc  IclToc.   44  €,  3. 33*  ij* 

44  3(r.  37. 

6,  ^UU  if  tl)Cp  are  united  tljC  Endowment  is  come  to  the  Parfon 
again.     20  (£»  4*  6.  b» 

7»  3if  tl)e  Parfonagc  DCCOmC  much  impoverifhed,  tfjC  ©rHiUiJrp  map 
OrDilin,  t!)at  tlje  parfon  fljail  be  reltored  to  that  whereof  he  endow'd 
the  \  icar.     40  (£»  3»  28*  b. 

8.  But  \)t  cannot  Do  tijilS,  unlefs  for  the  Poverty  of  the  Parfonage.  But  it  was 

40  E.  3.  28.  ^"1  by 

^  Compton 

Doftor  of  the  Civil  Law,  That  Union  made  upon  a  fuppofcd  and  pretended  Poverty,  which  appears  to 
be  falle,  is  void.    Cro  E.  501.  Mich.  58  &  59  Eliz.  B.K..  in  Cafe  of  Aullin  v   Twine. 

9.  But  if  Stranger  gives  Land  to  the  Vicar  anH  ijtC  SJUCCCflOrS!,  t\)t  r,.  t,,,;, 

©toinarp  cannot  mcrmic  tljeteiuitlj.  4°  €.  3-  28.  d»  utrum,  pi.  2. 

cites  S.  C.    PerAIombray. 

10.  JfUn  Abbot,  being  a  Parfon  appropriate,  be  Patron  Of  tl)C  iDiCat=  *^°'^°'l'^- 
age,  and  prefents  tO  tl)E  IDlCacaSC  by  Name  ot  a  Parionage,  tl)I0  diiap-  -^'P  ■'^'> 

piopriates  tljc  l^atfonaffc,  anil  mabc0it  anti  tijc  iDicaiagc  but  oncdtes's  c-' 
parfonage,  anD  reunites  t\}mu    n  p*  6.  i8»  ti,  3»  bl-  Annuity, 

pi.  44.  cites 

S.C. \A'atr.  Comp.  Inc  551.  cap   17.  fays  thi'i  is  a  Difappropriation  of  the  Churrh,   tho' there  be 

ne  frecedtnt  Jgreemevt  between  the  Parfon  and  the  Ordinary  to  that  Purpofe,   and  it  Ihali  be  prefcntablc 
after.  Cites  44 E.  3.  53.  b. 


II.  3!f  a  Patron  of  a  Vicarage,  another  being  Patron  of  the  Parfonage,  Br.  / 
prefents  thereto  by  Xameof  a  Parfonage,  anQ  i)l2i  ClCrH  inducted,  pet  It  t\^ 


Annuity 
44.  cites 

continues  a  iDicarage*   Dubitatiirr  n  f>6. 19*  32»b»        "       ^^' 

12.  The  lame  LaiD,  if  tlje  King  prefents  by  fuch  Name  tO  fUfi)  Hyi'  Br  Annuity, 

carage*   iDutfitatnr*    iij^»6,  is»b.  pi. 44- cites 

13-   3|ftlj?rebe  a  vicarage  and  Parfonage  (and  both  are  void)  and  All  Appro- 
one  prefents  his  Clerk  as  Parlon,  anO  \)Z  IlS  fO  induiled,  tf)l^  fljall  unite  Fictions  are 

tlje  parfonage  ano  aDicatage  agauu    1 1  rp.  6.  33.  raUnTthe 

Church  du- 
ring fucii  Time  i.s  in  Bondage;  and  therefore  by  Prefcntation  is  made  Prefentative.    Per  Windham  J. 

Keb.  9o<).  pi.  8.  Trin.  i-  Car  2.  B  R.  in  Cafe  of  Wiikinfon  v.  Richardfon. Watf  Comu.  Inc. 

870  :?  52.  cites  S.  C.  and  fays.  It  appears  by  this,  that  a  Lnyhnni  havirg  an  Appropriation,  may  diO.ppro- 
priate  ir  by  Prefentatioii,  if  he  be  Patron  of  the  Vicarage  ot  the  lame  Church,  as  well  as  an  Eccleliafti- 


cal  Pcrfbn  may,  if  Inftitution  and  Induftion  be  had  upon  it ;  and  it  is  even  fiid,  that  fuch  Patron  by 
his  Act  of  Prefenting  only  to  the  Vicarage  by  the  Name  of  a  Parfonage,  does  difappropriate  the 
Church,   and   unite  the  Parfonage  and  Vicarage  into  one;  and   cites   n  H.  (?.  iS.  b.  9.    5S  H.  6.  20. 

K.  N.  B  9  5. And  therefore  HoHart  fays  he  is  of  Opinion,  that  if  Parfon  appropriate  prefents,  and  his 

Clerk  is  refujed  fer  juji  Caufe,  and  Notice  given,  Laple  fhall  incur  ;  for  the  Appropriation  gives  him  a 
Choice  [  The  W  ord  in  Hob.  is  (Charge)  ]  to  hold  or  not,  as  appears  by  the  Form  of  an  Appropriation 
in  Grendon's  Cafe,  which  by  his  Prefentment  he  has  renounc'd .  Hob  152.  in  Cafe  of  Colt  and  Glover 
v  Bilhop  of  Coventry  &c  But  Watfon  makes  a  (^sere  v/hether  a  Dil'appropriation  be  perfected  by 
Prerentment,  before  Inftitution  and  Indu&ion  had  thereupon  I 

14.  3if  a  Parfon  appropriate  creates  a  Vicarage,  and  after  the  Advow- 
fon  Of  tl]r  dnirCl)  is  recovered  by  Writ  of  Right ;  t\)C  l^iCaraiTC  i?j  DC= 

ftflteo  tljercbp,  bccau(etl)c  Plaintiff  recoijergi  of  a  Ijigljcr  Eigljt  tijan 
tlje  malung  of  tlje  iDicarage*    17  C  3-  51-  In  76. 

15.  But  OtljeriDlfC  It  is,  tf  be  recovers  of  a  lattr  Right  tfjSn  tljC 

Creation  of  tlje  3?icarage*    i7€»3- 

4  H  16.  // 


306  [Prefcntation.]    Parfon.     Patron. 

16.  //  Ficar  be  of  the  Dowincnt  r,j  the  Ordinary  and  Patron^  all  che' 
Fyjuktcnement  is  in  the  Parfon ;  and  othcrw  ifc  in  the  Vitar,  it"  it  be  by 
other  Title.  Br.  Dean  and  Chapter,  pi  34  cites  40  E.  3.  27. 
See  (H. ■)?!._  17.  15  i?.  2.  cap.  6.  Ena6ts  that  in  every  Licence  made  in  Chancery  of 
^■~~-^''°  the  jippropriation  of  any  Churchy  this  jhall  be  contained  (viz.  That  the  Dio- 
I  <  R  z  and  '■-'C/^"  //m//  ordain  (according  to  the  Value  nj  fuch  Churches^  a  convenient  Sum 
4  H.  4.  fay  to  be  yearly  dijtrtbiitcd  out  of  the  Profits  thereof]^  to  the  Poor  of  the  Parijh,  by 
that  there  the  Jpfroprtators  and  their  Sticcefjors  for  ever  ;  and  alfo  that  the  Vicar  jhall 
v""  ^l ■*       ^^  fii§Kiently  endowed. 

eiidowfd  up-  ^8-  4  ^-  4-  ^'^P-  '2.  Enads  that  the  Statute  cf\sR.  2.  6.  fjall  be  duly 
on  every  escctited,  and  appropriations  madeftnce  that  Statute  contrary  thereunto,  Jhall 
Appropriu-     be  reformed  before  Eajhr,  or  etje  to  be  void,   except  Haddenham  in  the  Ifle 

ir'drnot  "f^^y- 

ev^cnd°to°'        y///  VicarAges  annexed  or  appropriated /nice  i  R.  2.pallbevcid. 
Appropria-         ///  every  Chinch  fo  appropriate,  a  Secular  Perfon  jhall  be  ordained  Vicar, 
ti^ns  Prior  to  Cauonically  injlituted  and  indu^ied  in  the  fame,  and  conveniently  endowed  (by 
the  'y'?|'>['g    the  Difcretion  of  the  Ordinary')  to  do  Divine  Service,  mjorm  the  People,  and 
AiT^Gibb  ^  keep  Hofpttality  thtre,  {except  Haddenham  aforefaid)  and  no  Religions  jhall 
251".  Pafch.   be  hereafter  made  V,car  in  any  Church  fo  appropriate. 
4  Geo.  2  in 
Cafe  of  the  Bifhop  of  London  and  Lewen  v.  the  Mercers  Company. 

19.  If  Vicarage  be  Erefled  and  Eftabliih'd,  if  A'i;  Endowment  be  De 
Failoottht  Vicarage,  the  Vicar  can't  claim  any  Thing.  Per  tot.  Cur. 
Palm  426.  Pafch.  2  Car.  B.  R.  Cope  v.  Bedford. 

20.  A  Vicar  cannot  have  Tithes  but  by  Gift,  Compolition  or  Prefcrip- 
tion  ;  for  all  Tithes  De  Jure  do  appertain  to  the  Parlon.  Mar.  11.  pi. 
29.  Pafch.  15  Car.  Anon. 

S.C.Sid447.  21.  A  Vicar  libell'd  tor  T'lthe  of  Wood;  the  Defendant  fuggefted  for  a 
but  there  It  Pj-Qhibition,  that  Timeout  of  Mind  they  had  paid  no  fmall  Tithes  to 
for^Tithe^  the  Vicar,  but  that  by  the  Cullom  of  the  Parifh  they  were  paid  to  the 
Wood  and  Parfon.  Per  Tvvifden,  If  the  AWca^wf///- of  the  Vicarage  is /o/?,  fmall 
Tithe  Tithes  mull  be  paid  according  to  Prefcription.     Mod.  50.  Hill.    21  & 

Would  or     22  Car.  2.  B.  K.  Tildale  v.  Walter. 

Woad 

(which  is  a  Dye-Stufti;)  and  that  as  to  the  Woad  it  was  fuggefted  that  the  Tithe  thereof  belonged  to 

the  Parfon  and  not  to  the  Vicar  ;   but  this  was  doubted  of,  becaule  it  is  reckon 'd  among  fmall  Tithes, 

like  Hops  &c. 

22.  Libel  lor  Tithes  by  a  Parfon,  the  Defendant  fuggefted  for  a  Pro- 
hibition a  Modus  to  the  Vicar,  and  that  the  Vicarage  had  been  endowed'Time 
out  of  Mind-,  and  it  was  granted.  Vent.  107.  Hill.  22  &  23  Car.  2. 
B.  R.  Robfon  s  Cafe. 

23.  29  Car.  2.  cap.  8.  SeB.  2.  Ena£ls,  That  Every  Augmentation,  re- 
ferved,  or  agreed  to  be  made  payable  Jince  the  firft  of  June,  in  the  1 2th  J  'ear 
of  his  Majejifs  Reign,  or  which  fhall  be  made  piyableto  any  Vicar  or  CuratCy 
or  referv'd  by  way  of  Increafe  of  Rent  to  the  Ltjfors,  but  intended  for  the  Be- 
nefit of  any  Vicar  or  Curate,  by  any  Archbifhop,  Bipop,  or  any  other  Ecclc- 
ftafiical  PerfoHs  out  of  any  ReBory  impropriate,  or  Portion  of  7'itbcs,  (hall 
continue  for  ever,  as  well  during  the  Continuance  of  the  EJiate,  upon  which 
the  Augmentations  were  referved,  as  afterwards ;  and  the  J'aid  Retlories,  or 
Portion  of  Tithes,  pall  be  chargeable  therewith,  whether  the  fame  be  referved 
again  orjiot,  and  the  /'aid  Vicars  and  Curates  are  hereby  adjudged  to  be  in  the 
atlual  Pcpeffion  thereof  for  the  Ufe  of  themfelves  and  their  Succefors ;  And 

Pall  have  Remedy  for  the  fame  either  by  Diftrefs  upon  the  Reaones  impro- 
priate, or  Portions  of  Tithes,  or  by  Aci ion  of  Debt  againft  that  Per f on  who- 
ought  to  have  paid  the  fame. 

Provided  that  no  future  Augmentation  be  confirmed  by  this  A3,  which  pall 
exceed  one  Moiety  of  the  yearly  Value  of  the  Retiory  Impropriate. 

Every 


[Prefcntation.]     Parfon.    Patron.  307 

Every  Archhifl.  op,  Bipcp,  Dean  and  Chapter,  pall  carife  every  Leafe  or 
Grant,  -wkenv/t  any  fuch  Angmcntat'tcn  ts  made,  to  be  entered  in  a  Book  of 
Parchment,  to  be  kept  by  their  Regijiers;  ylnd  every  Dean,  or  other  Eccle- 
Jiajhcal  Pcrfou,  [hall  catife  every  Lcafc  or  Grant,  ivhereon  any  fnch  Aitgmen~ 
tat  ion  had  been  made  by  hivifelf  cr  his  PredcccJJors,  to  be  entered  in  the  [aid 
Book,  -which  Entry  being  examined  by  the  Anhbijhop,  Bipop,  or  Dean,  and 
attcjicd  in  the  Book  to  be  a  true  Copy  of  the  Original  Leafe  or  Grant,  and 
that  the  Augmentation  in  the  fame  zias  intended  Jor  fnch  Ufe,  pall  he  as  a 
Record,  a  Copy  whereof  proved  by  WttneJJ'es  fhall  be  Evidence  tn  La-jj,  where- 
upon the  Vicars  and  Curates  may  recover  the  Benefit  of  fnch  Augmentation. 

iVherc  any  Archbijhop,  Bijhop,  or  other  Eccle/ia/lical  Perfon,  upon  the 
renewingor granting  any  Leafe,  have  made  any  Agreeiyient  for  an  Augvunta- 
tion  jor  the  Vicar  vr  Curate,  and  ftich  Augmentation  hath  for  any  time 
been  paid,  alt  ho'  the  Agreement  is  not  mentwned  in  the  Leafe,  fuch  Ecclejiaf- 
tic.il  Perfon  jhall  caufethe  Subjlance  of  fuch  Agreement  to  be  entered  in  theBook. 

Such  Augmentation  fo  entered  fhall  likewife  continue  for  ever  m  the  fame 
Manner,  as  if  the  fame  had  been  rcferved  by  the  Leafe. 

If  any  .^ue/lwn  arife  concerning  any  thing  in  this  Acf,  fuch  favourable 
Confirutiions,  and  fnch  farther  Remedy,  fhall  be  had  for  the  Benefit  of  the 
Vicars  and  Curates,  as  may  be  had  upon  the  Statutes  for  Charitable  Vfes. 

If  upon  the  Surrender  cr  Determination  of  any  Leaf;  wherein  any  fuch 
Augmentation  hath  been  granted,  any  new  Leafe  of  the  Premiffes  fhall  le  made 
without  exprcfs  Continuance  of  the  Augmentation,  flch  new  Leafe  fhall  be  void. 

24  \\  here  the  Vicar  is  endowed,  and  comes  in  by  Infiitution  and  In- 
dndion,  he  hath  Curam  Aniniarum  Adtualiter,  and  is  not  to  be  removed 
at  the  Pleafure  of  the  Re£lor,  who  in  this  Cale  hath  only  Curam  Ani- 
marum  Habitualiter  i  but  vice  verfa,  the  Rector  has  Curam  Animarum 
Aftualiter,  and  may  remove  the  Vicar  at  Pleafure.  3  Salk.  37^.  Smith 
V.  Waller. 


( I )  Parfon,  Patron,    and  Ordinary.      Their  Foiver  jo'n/tly 
in  the  Time  of  th  Pcvjcn. 

I.  r)3rron  l^atron  auU  a^riiinarp  \m\>  create  a  vicarage  s  K*  2, 
X^  !amuutp»53» 

2.  The  Patron  and  Ordinary  rmy  charge  the  Church,    in  Time  of  Vaca-  ^ndrVcPar-' 
uon  ior  ever  with  an  Jnnr/Hr,  or  fuch  like.     Br.  Charge,   pi.    38.  cites •'f  "'"^^  .. 
8  E.  3.  26.  &  i  itz.  Keleafe  57.  ^j,„^  ,f,ig 

On^hiayy.  Br.  Cliarge.  pi.  5S.  cites  Littleton,  Dillontiniiance. 

^.  If  a  Parfon,   Patron,  and  Ordinary  grant  Land  to  J  S.  difcharged  cf  '  Kcp.  44  a. 
titles  he  ftiall  hold  it  difcharged.  Per'Doderidge  J.Cro.   J.  453.   Mich,  'l'^''^^'' 
15  jac.  B.  R.  in  the  Cafe  of  Doubitofte  v.  Curteene.  Wincher- 

ter's  Cafe. 
Hcb.  297.  per  Hobert  Ch.  J.  in  the  Ca(c  of  Slade  v.  Drake. 


(K)  Patron  and  Ordinary  In  Time  of  the  Parfon.     Their' ^,^i 
Power  in  Time  of  the  FarConfevciYiIij'.     Patron. 

1-  Tif  tl  ^iin  rccovtrs  an  Annuity  againfl  a  Parfon,  and  flftCt  releafcs  See(L)  pi. 

i   to  the  Patron  CUrUlg  tU  CimC  Of  tl)t0  Piirfou,  t!)ts  fljall  cttm'  '''• 
BUiflj  tije^nmiit)).  8.  \%  b,  23 » ii,  tijctc  it  19  put  crnciallv  10. 41.  €.  3. 

20. 


[Frefentation]    Parfon.  Patron. 


20. u]!ti:out  nicntiou Uiljctljcr It  U;a0  inCnr.c  cftljePiirfcn,  orm 
3Dncationi  Q5iittDc  ©arc  tatmi^  btoiisljt  apinft  tlje  ^ucccfloc, 

,  2.  Durino;  tbC  CimC  Oftlje  J^nrfOntlje  Patron  has  not  any  Rever- 
Jion  in  the  Glebe.  8,  Ji).  6*  24.  lj» 

3*  Jn  time  of  tlje  j^arfOll  tljC  Patron  has  nothing  to  do  in  the  Church 
iui>6,  4»b* 

Kfo°'i  Ji      .-  ,t  "^^  tlje  Patron  grants  a  Rent  by  Fine  Otlt  Of  tIjC  Church  it  bein? 

«/,- s,2^"J^  anp  nftev  tijc  Jnciimtient Hies  tfjis Cljargc fljail not  bino  the 
cites  sc    s^ucccIToCi  asecaufe  ttje  Jpatfoii  ano  S)cmnarp  lucre  not  mxtik 
tijcrctOv  38,  (£♦  3*  4, 

5»  3if  tijC  Patron  grants  a  Rent  out  of  the  Church  it  i<j  iJOlII  3- 

Crtiiift  Ijiuifclfs  X^ccuufe  fte  Ijnjs  notljuig  mttc  eijurcj}.  38.  e* 

3»  4*  0* 

*Pir  h  Afer  r^*  3^f  tljCtC  ftC  3  Dean  of  the  Free  Chapel  of  the  King  of  the  Collation 
pi  .o;  cites pf^^^^  .^'"S'  "1^0  '3C  has  an  Advouion  appropriate  tO  IjUlt,  another  who 
h'  ;^  E.  3.  has  Right  to  the  Patronage  Of  tt)C  ^ItlOPUiron  niav  releafe  all  his  Ri<^ht 

but  I  fitid  no  to  the  King,  aiiti  tw  fljaH  bc  ijooo  Hclcafc  in  tlje  patronise  of  m 

Boob               '^-  ^"  Scire  lacias  upon  a  Fine, it  was  agreed  per  Knivet  and Kirton,  That 
a  Fif/e  levied  ^j'  /'^f  P^fm;  a/o//e  of  a  Rent  out.  of  the  Land  of  the  G/ebe 
without  the  Parfon,  is  not  good  to  bind  the  Parlbn,   and  this  feenis  to  be 
where  a  Parfon  was  at  the  ^tme  of  the  Charge.  Br.  Charge,  pi.  1 1.  cites  38. 
E.  3. 
Ei,t  note,          8.  Debt  againft  the  Succeflbr  of  the  Parfon  upon  a  Grant  of  an  Annuity 
7haritap-  by  h^s  Predei;el]br  by  Jffefit  of  the  Patron  and  Ordinary,    and  lor  Non-pay- 
h^c\L-    "^^""^  ^^  ^^^^^^^  40  s.  Nomine  Pene,  and  Debt  was  brought  of  the  Penalty 
fol4i.that  andfofeethataGrantbyAflentofthe  Patron  and  Ordinary,  is  as  good  a] 
tlie  Grant     ij  the  Putron  and  Ordinary  had  confirmed  It.  Br.  Charge,  pi.  13.  cites  7  H  6 
was  by  one    15,. And  herewith  agrees  Littleton  tit. 

Deed,  and 

Patron  and  Ordinary  made  another  Deed  but  it  is  not  exprefled  if  it  be  a  Confirmation,  nor  what 
Form  It  contains  ;  But  fee  the  fame  Cafe  Anno  8  H.  6.  &;  23.  it  appears  that  u  was  a  Confirm  -tion  Rr 
Charge,  pi.  13.  -i»"u.  ur. 

9.  Note  for  Law,  That  the  Parfon  cannot  char7e  luithout  the  Patron  and 
Ordinary^  [or]  Dean  and  Chapter,  -xhere  the  Bipop  is  Patron,  &  e  cotttra  ic 
feems  inhere  the  Kifhop  is  only  Ordinary  and  not  Patron:,  and  'tis  faid  elfewhere 
alio  that  xhQPatron  ought  to  have  Fee  Simple,  and  this  in  his  properRi<rht  as 
appears  here  by  the  Cafe  of  the  Dean  and  Chapter  with  the  Bilhop 
where  the  Bilhop  is  Patron,  and  in  the  Cafe  of|)ilI  for  the  Parfonage  and 
Glebe  ot  btcke  upon  Tyerne  in  the  County  of  Salop.  33  H.  8.  where  the 
Parfon,  Patron,  Dean  and  Chapter  made  the  Allurancci  Quod  nota ;  and 
therefore  it  feems.  That  the  Bilhop  was  Patron  there  j  And  the  Diver/ity 
is,  That  where  the  Bifhop  is  Patron  he  hath  Inter e/  in  it,  but  -where  he  is  only 
Ordinary  he  has  Judicial  Power,  but  no  Int^ereji,  Note  the  Diverlity  Br 
Charge,  pi.  40.  cites  1 1  H.  6.  9.  /  •        • 

10.  It  was  agreed  by  3  of  the  4  Juftices,  that  Parfon  has  Fee  Simple  in 
Jure  Ecclelis,  and  that  Wafl  lies  not  for  the  Patron  agamji  the  Parfon. 
Br.  Faux.  Recov.  pi.  51.  cites  12.  H.  8.  7. 

11.  It  ?^tron  confeffes  Aa ion  of  the  Land,  a.  Juris  Utr urn  Wqs  for  the 
Siicceffor  ;  per  Brook.  But  this  feems  to  be,  where  no  Aid  -^ms  prayed. 
Br.  Faux.  Recov.  pi.  51.  cites  12  H.  8.  7. 

iTs  That'     c^^J^^  Pollard  J  The  Patron  may.  have  ^Writ  of  Error  and  Attaint 
thisVeems      ^^  a  Recovery  had  againft  the  Parfon.  Br.  Faux.  Recovery,  p].  51.  cites 

not  to  be  12  H.    8.  7. 

Law  ;  For 

t  y»^«  *  wf ''  ■"''  *'  ''■"'°"  '"  ""'  ■'"  '''"'«=«™°' "«  R""'l!",  b«t  At  F„,ii,Mma 

(L) 


[Prefcntation.]     Parfon.     Patron.  309 


(L)  Patron  and  Ordinary   in  Time  of  Vacation.      Their 

Eftate    and    Power    /';/    Time    of  Vacation  feverallj.^^"'^''^'^''"^'- 

Patron. 

I.  "pVUring  tlje  IDacatiOn,  tljC  Franktenement  of  the  Glebe  ijj  nOt  ill  Thedrdim- 

U  tijc l2atrou.  8 1), 6.  24. 1).  l/iSlfi"'- 

of  the  Glebe  in  tlie  Time  of  Vacation,  hecnufc   it  is  Sanftiiarv,    Et  Non  Nogatur;  but  where  ilic 
U.iirch  is  t1i_[io!zcd,  the  Patron  fliall  have  it.    Br.  Dean  6ic.  pi  59.  titci9  H  5.  y. 

2.  'But  it  i&  in  Abeyance.     JLltt*  144.  Ard  .-,  Free- 

hold can  be 
in  Abeyance />  CT  of^cr  Cj/f,  but  only  in  the  Cafe  of  the  Parfon  of  a  Church.  D.  71   pi.  415.   in  Cafe 

of  VS'ithers  v.  Illiam. It  is  the/j!»;e  in  Cafe  of  a  Bijhop,  Abbot,  Dean.,  Archdeacon  Qpc.   Co.  Litt.  S. 

647.542  b. See  Abeyance. 

3-  'Wljt  J3iUron  !]a6  tIjc  ifraiilacncmciit  in  Right  tiitruin;  tljc  m^  "^''^  P-'^'^n 
cation.  8  ix  6.  24.  b*  ''^^  ^at  /« 

rric/iijt.iiuu, 
and  hasnolntereft.  Arg.  Cro.  J   5;.  Mich.  2  Jac.  C.  B.  in  Cafe  of  the  King  v.  the  Bifhop    of  VVinton 
and  Campion. 

4.  C(JC  l^atron  fijall  not  take  any  Benefit  of  the  Glebe   CttrilllJ  tljC  T'io"S5i  the 

vacation. '  8 O-  6.  ::4-  b.  ^';^uZ: 

inj;  theVacnion  are  in  the  Incumbent  upon  lii.s  Irduftion,  and  pot  due  to  the  Patron  or  Ordinary  ;  ( For 
it  the  Patron  enters  upon  tiie  Church  in  Time  of  Vacauon,  1  e  thereby  is  not  any  Dilleiibr,  nor  gauis 
any  Right.  Sav.  iS.  [pi.  46.  l^ilch  22  Eliz,]:  yet  the  Parron  ard  Ordinary  have  fuch  an  Iptertft  in  the 
Kevenues  of  the  Church  as  th-it  at  Common  Law  they  might  have  charged  the  fame  in  Time  of  V  a- 
cation,  v.  hich  would  have  bound  all  fucceeairg  Incumbents,  becaulc  no  other  had  any  Interell  at  that 
Time,  but  they  only.     \'\'atf  Comp.  Inc.  3vo  74S.cap.  4S. 

5-  If  t!)C  Parfon   leafe.s  at  ^^■ill  t!)C  l^alTGUaiJC  and    rel5gns,  ({.i))  Trcfpaft  .f ^ 
toljitg  tljC  11DI{!  t£S  OCtCrPnUCO)  tijC   Pau-un  cannoL  enter  upon  "the  Lei-  S'/^Xr  • 

iee  aun  cuf-  ijim,  iM  Ue  Ijas  tljc  ficft  pofTcffion,  auo  tljc  ipmon  chant'ikid,' 
im  no  EibUt  to  tIjc  profit^)  s  f;.  6.  9.   aonutteu.  That  the 

Clofe  ivas  the 
CI  tirclj-y/in>  of  D.  auH  the  hcufi  was  the  Church  of  D.  and  the  Defetniart  is  Patron,  and  A.  the  p.irjcn  there 
le.tfed  the  Pr.rjcr.are  to  the  Plarntif  at  WtU,  a>iA  after  the  Parfon  refigncd,  and  the  Vlefcvdatn  as  Patron 
frefented,  and  the  Bijhop  ii:cjuiied  cf  the  Right  of  Patronage  ir.  the  Churth,  and  the  Defeiidaat  as  Patron  en- 
tered to  jl'eiv  his  Evido.ce  to  the  Patronage,  and  the  Plaintift  by  the  Lcafe  above  held  himielf  in  &c. 
vhich  is  the  fame  Trcfpafs  Sec.  Judgment  fi  Actio  ;  Ard  by  feme  it  is  no  Plea  for  want  of  Colour, 
ButStrarge  ard  Martin  juftices,  laid  clearly,  that  it  is  a  good  Pica.  And  the  Reafon  fcems  to  be,  be- 
caufe  Lay  Genr.s  cannot  kn  >v.-  t'.ic  Law  that  the  Leafc  is  void  by  the  Rellgnation.  f5r.  Trelpafs,  pi.  i  li., 
cites   8  h.  6.  9. 

6.  Cijc  patron  (Ijall  not  Ijalie  tim  Aaion  for  Trcfpafs  cone  in  tfjc 
Cimc  of  i")acation,    1 1  i).  6. 4.  i). 

7.  3ftCttlje  Death  of  a  Prebendary,  tljC  Dean  and  Chapter  fljall  IjallC 

tlje Profits.  33  €♦  3-  3ii3  oftDc  M\(i  103.  pcr^fjovpc. 

8.  ^ftCr  tIjC  Death  of  a  Dean  of  a  Pree  Chapel  ot  the  King,  tljC  King  J'^  ■»t'^»n'P- 

fliall  ha\e  the  Pmt^ts  of  ijis  Dcantp  ;  fot  It  isiat  tljc  election  of  tl5e  -'^s  c^;  40 
UmtT,  U)!jctlrvi)c  mil  collate  a  J]5eu)Dcan.   33  €.  3-  ?.iti  of  tljc  cites  .s.c 
JUms  103.  per  jf  If. 


!.  ;: 


9.  But  il  the  Dean  had  a  Parfonage  appropriated  to  him,  tl)C  t\il\Q  '^p 

fi)aU  notl)aiic  tOc  Citlje^  ann  picfitis  tljcrcof.  33  e.  3-  atorcuiic,^     _ 
per  '<ICi^orp.  watr.comp. 

Inc.  Svo.  -4S.  cap.  40.  cites  S.  C. 

10.  If  a  03r;n  Ijas  an  Annuity,  cut  of  a  parfonagc,  ann  lie  reieafes  •  Br.ocane 

to  the  Putron  in  Tiiiie  of  Vacation,  tljI^J  (Ijall  CCtlllBUinj  tijC   SlnnUItl'.  fi';,  ^' c"- 
*  21  ip.  7.  41.  Co.  5-   forde  81.  b.  ^    Br.Releafe, 

4   I  JI     Jf ?l.s;.cit-s 


3IO       [Prcfcntation.]     PaiTon.     Patron. 

S.  C. ^^S.  C,  cited  5  Rep.  8i .  b.  PaCch.  57  Elii.  C  B.  in  Ford's  Cai'c S  P.    5  IKcp.  ;  i.  n.  Pafch. 

;4tliz  in  U'^ct'S'  C.ife,    cites    40  E.  v  ^.i.  iS  E.  5.   Avowry  7-     1:5  U.  2.  Avowry  S9.    14H.  4.  a. 

Kecordarc  loni;c. VVatf.  Comp.  Inc.  Svo  -48.  cap.  40 cites  S.  C. Co.  Litt.  266.  a.  8  P.  and 

tliac  it  is  good  in  relpeCt  of  Privity. 

II.  Jt  a  judgment  in  Annuity  tlM5  C\mn(t  fl   liJaffOn,   illlD  aftCt 

in  Cnne  ct  i:)tication  bt  rcieuk-s  to  the  punon,  ting  HyMi  cctniginlS 
tlje  3.niuiitp.  8  0, 6.  2?.  b*  CBut  it  norss  not  appear  tuljctfjcc  tljc 
Kclcnfc  U5n0  in  Cimc  of  vacation  or  of  i^Icnartp)  ©mc  7  $>  6. 38. 

l)»     41  C»  3-  -o. 
Watf.Comp.       12.  But  If  a  Man  who  has  Right  to  the  Glebe  Land   releafes  to  the 

c"p'4o°ck«  ^'"'■^'" '"  '^'•^'^  "^'  ^'acation  all  his  Right  it  isi  not  poB,  ficcaufc  tfje 
s. c   ■      patron Ijasnot  ani'  effatc  in  tijc  Innu*  s  i).  6. 24.  jj*  i«ay  be coilcftco* 


(M)  Ordnmyy.     [His  Po^joer  i?i  Time  of  Vacation.'] 
*2SH.s.    I.  Tji3'2riincofriacation,  tlje  OrBinarp  map  give  Liberty  to  an? 

"P  "•  A  to  hold  the  Parlbnage  far  a  CCttaiU  '^IWiZ  (before  a  new  Incum- 

bent be)  8  fp.  6.  9.  (CijiSi  U)a0  betOrC  Slje  Statute  of  *  H.  8.  cap.     which 
ordains,  that  the  Ordinary  Ihall  fequelter.) 

2.  Clje  €)rllinarp  fljail  JjallC  the  Efplees  and  Profits  during  the 
Avoidance.     7  Jj).  6.  39.     11  ![)♦  6.  4.  b* 

3.  Jn  '^CiniC  of  Vacation,  if  a  $il0an  has  the  firil  PofTeffion  Of  t\^t 
J^arfOnap,  pet  tlje  Ordinary  may  give  Power  tO  anOtljCt  to  inquire  of 

the  Right  of  the  Patron  (n  tljc  Cf3urcl),  upon  a  prcfeittinent  to  fjiin, 
anti  tbe  Coiiimilfioner,  an5  tljcp  uiljo  p  tijcrc  to  ftew  their  Right 

to  the  Commilfioner,  Ihall  not  be  Trefpaliors.     8  iO*  6.  9. 
Br.  Quai-e         4.  If  the  Ki>/g  be  Patron,  and  does  not  prejhit  to  the  Church,  which  is 
Impedit,  pi.  yoid,  within  lix  Months,  the  Ordinary Jhall  not  prefent,  but  {hdWllqueJler 
|o.^cites        ^j^g  Profits,  and  find  one  to  ferve  the  Cure  till  the  King  will  prefentone. 
S.C  Cited    PerKcble.     14  H.  6.  21. 
Arg  Roll. 

R.  453.  Hill    14  Jac.  in  Cafe  of  Colt  v.  Glover— — The  Ordinary  may  fequefter  a  Church  Donatke,  if 
the  Patron  does  not  prefent.     Arg.  Roll  R.  455.  in  Cafe  of  Colt  v.  Glovev  ;  cites  5  Jac.  Gaer  v.     , 

5.  During  the  Vacation  the  Ordinary  w^'  fuake  a  Leinfe.     Arg.  Roll. 
R.  453.  Hill.  14  Jac.  inCam.  Scacc.  in  Cafe  of  Colt  v.  Glover. 


(N.)     Provlfion. 


As  to  Mat- 
ters of  Pro- 
vifions  &c. 

fore  bv'thT'  I.  Tif  tfje  probifcc  of  tIjc  pope  \m  polTcmon  of  tfjc  CljitrcO  before 

Pope,  It  may  tljC  PrCfentee  of  tDC  laino;,  ije  Iball  be  prelerr'd ;  but  If  tijc  prc' 

beothttic    feittec  of  tlje  ^l^ins  Ijais  the  fint  Poffeifion,  ije  fljall  be  prcferr'H. 

Uic  to  inicft  «.  ^  Yi* 

my  Thing     *  8  %  4.   21. 

more  here 

than  only  to  refer  to  the  Statute  25  E.  3.  and  other  Ancient  Statutes  made  to  reftrain  them. *  Br 

Prefemation,  pi.  1 2.  cites  S.  C. 


(O.)Advowfon. 


[Prefen cation. J     Paiion.      Patron.       o  i  i 


vSeeAdvowlin, 


(O.)      Advowlbn.      *  //7W,  VAnA°w' 

foil,  oi-  as  the 
Term  is,  Jus 

I.  ADiiotefoit  is  fas  Mfxtum,  bfCtiufc  tl)c  Comnicnccmcitt  of  clicrp  PanonatL*., 
■        i^rcfcntmciit  coinmciiccij  bu  oiirlaui,  nsi  bp  Piciontnieni:  oi  ^n  p"teihn, 

the  Lay  P:ftron  ;  nm  llj)  tl)C  LalU  Of  t!}C  CDnrCl)  takcfi  (^^ffeft,  36  bD  !;i7'^";,'t' 

Ability,  Boit  nbilltp,  oc  Cnuiuiofus,  uH)tci)  iippcrtainsi  to  tijc  ©rui-'  iHu,cndum 

IWrp*  t  34  ip,  6.  40.   Per  AUiton.  ad  Bencti- 

cium  Ec- 
clefi^  fipiplex  &  vacans;  and  of  oilier  Rel'pefl's,  the  Caiiies  and  Incidents  of  Advov.Tons,  is  dcfcrib- d 
more  amply  in  inch  Manner,  Jus  Patroniitui  eft  jus  Honorificuni,  Onero'uiT),  &  Uiile.  In  i&iift  ihis  ; 
A  Patronage  or  an  Advowfon,  is  a  Kip;ht  to  prelent  to  tlie  Bifliops  or  Ordinary  a  fit  Perfbn,  by  l.ini  to 
be  a^imitttd  and  irftituted  into  a  Spiritual  Benefice  when  it  bccometii  void;3nd  he  t!iat  has  lucli  Kit;litto 
prefent  is  called  Patron,  who  is  thus  defcribed  ;  Parronus  efl  defcnibr  Eccicfix,  qui  habet  jus  pra;lent  ni- 
di Epifcopo  aliqueni,  vel  alinuos  in  aliqua  Ecclefia,  or  inca  ab  eo  inftituatur.  And  he  is  lo  called,  De 
Patrocinio,  of  Defence  ;  becaiife  he  fhould  defend  the  Church,  or  a  Similitudine  P.itiis,  cuia 
ficut  Pater  filium,  fie  Patronus  Ecclciiam,  de  non  efl"e,  rieducit  ad  efle.  He  is  called  of  01dG"('-  ile 
Advocatus;  as  th:it  he  fhou.d  'ay,  an  Advocate  of  the  Caufcs  of  the  Church;  and  therefore  the  [•'l.eri- 
tance  is  called  Advocatio,  or  Advow-fon,  or  is  deviled  De  Vocando;  becaule  the  Patron  bath  rGv\er 
for  the  Piefentment  of  a  fit  Perlbn,  by  the  Name  of  his  Prefentation.  Dod.  of  Adv.  3.  4.  Lect.  1. 
f  Dod.  of  Adv.  5.  cites  S.  C. 


(P)     Chapel.  f«^-iW- 

i.  A  Cfjapd  of  Eafe  is  uiljcrc  t!jere  10  a  Cljurclj  l^arccljia!  in  tl)c 
/\  liimc  i^arifl),  ann  tijc  s^acrauicntis  anaumaccn  m  tije  ifPato^ 
rijial  Cbiircl),  ano  not  in  tljc  Cljapel.    s  rp.  6.  32. 

2*  a  Church  Parochial  cannot  be  a  Cfjapel.     8  fX  6.  37- 

3-  Cfjc  Cliapcl  Of  Ca{c  beiono;s  to  t\)z  Cfjiirc!)  parocijial,  nnn  Ipux- 
fontljcrcot*    8^,6.32. 

4.  A  Chapel  is  not:  a  I'evipural  Inheritance^  as  an  Advowfon  is.  Arg, 
Sti.  loi.  cites  D.  83. 

5.  A  Chapel  is  not  conveyed  in  Fines,  and  Recoveries  and  Entries,,  tiy 
the  JVafiie  of  a  T'enement,  nor  in  any  judicial  Proceedings  i  I'Ht  Tenementa 
in  cr  Grant  may  contain  a  ChapeU     Arg.  Sti.  loi.  Thin  v.  Thin. 

6.  The  Nominee  to  a  Chapel  of  Eaie  »//.y?  have  the  Bifhop's  Licence, 
but  who  Ihall  nominate  whether  the  Patron  and  Rettor  of  the  Mother- 
Churchy  or  the  Builders,  was  not  determia'd.  Gibb,  ij;8.  The  Caic  of 
the  Chapel  oi  St.  johti's  inHolborn  Parilh. 


(QJ    Advowfon.  Splritml  Promotiorh    Jf%n  fliall  be  faid 
a  Spiritual  Froniotion. 

I.  A  Deanrv  IS  a  Spiritual  f^romotion,  anti  not  CcntporaU   D*  lo  s-  p  i ?  Rep. 
-^  CU  273.  37.  03))  all  tijc  jufticejj*  Pafchi"^' 

Jac.  in  the  PariHiioners  of  J;t  Alphaf;e's  Cafe. —  In  Cafe  of  JfairfidO  3110  <^iVXi,  Williams  faid  that 
Knights  have   been  Deans,  and  have  had  Deanries,   but 'tis  by  the  Special  Difpenfation  of  the  Arch 
bifhop,  and  that  he  hath  Teen  fuch  Licence-,.   D.  273.  pi.  55.  in  Marg. — Yelv.  61     Pafch.  "   Tac   B   r' 
in  the  faid  Cafe  of  Fairchild  v.  Gayer,  'tis  held  by  all  the  Jufticcs,  That  Deans  may  be  LaVmen    be- 
cause the  Funftion  is  Temporal.    And  yet  Williams  J   faid.  That  Laymen,   who  have  Deanries  ouo-ht 

and  always  have  had  Dilfwnlations  from  the  Archbifltop. Brownl.  201.  S.  C.  and  P. De'in   %n\ 

Chapter  are  a  Rody  Spiritual,  and  annexed  to  the  KiOiop  throughout  all  England  Per  Hobart  Ch'  T 
but^A'inch  doubted,  and  faid  that  a  Dean  may  be  a  Layman,  which  Hutton  confels'd,  aixl  laid  that  fb 
was  the  Dean  of  Durham,  by  fpecial  Licence  and  Dilpenfaticnof  the  King,  but  that  is'a  rare  and  aVne- 

cial 


312  [Prcfcntation.]     Parfon.     Patron. 

cial  Cafe,  a-d  is  not  common  and  general  ;  and  therefore  not  to  be  brouglit  as  an  Ii;<;mi  jI;,-,  wliioh  v,as 
granted  by  HobartCh  J.  Winch.  65.  Pufch.  21  Jac.  C.B.  Brigg's  Care. 

2.  3it  t!)C  Jf5onniint(0n  ann  Patronage  of  a  Deanry  be  appOitltCO  to 
the  Kir.g,  i]t0  fOCir^  aUtl  glUCCCfTOrEi,  nnU  he  appoints  a  Dean,  pet  tWS 

is>  a  ^Witual  promatlan*   D.  10  (£1.273.  37. 

3.  67tr,fe  (v/  d  Parijh  is  nor.   13  Rep.  70.  Pafch.  8  Jac.  C.  B,  The  Pa- 
ri ihioners  oi'St.  Al phage's  Cafe. 

4.  Charch-t'VardcHs  are  not.  13  Rep.  70.  in  the  Parifliioners  oi^  St.  Al- 
phage's  Cafe. 

7.  The  LtCfnrcrs  in  Cathedral  and  Collegiate  C/v/rf/^ci  are  of  the  Num- 
ber of  Eccieliallical  Promotions.  VV^atf.  Comp.  Inc.  250.  cap.  14. 


rccDona-  (R)     Adv'owfon.     Domthc. 


tivc 


^^^^^\f-  "^  ^-  A  iDcnatiiJC  of  the  Gift  of  the  King  \m\)  be  with  Cure  of  Souls, 
Cro  C  ^°o'".^  ^  ^^  f'J^  ^'^"'^^^J  Of  tOC  Tower  of  London  10  a  DOIUltilje  Of  tIjC 

s.  c;  Bv"  <J?ift  Of  tl)e  £%in0  iDitl)  Cure.  S^icij.  9*  Car>  a>.  E.  bctiaccn  f  a-^^m- 
Name  of  tiiiD  A4ackai!er,  pec  Curiiim,  laljccE  Sinfaniintiau  tuas  braiiirljt  upon 
Bowderok  V  tijc  g»tatute  of  3u  €U>  of  ^iiiionp,  fot  procuring  tjfm  to  lie 
-Qo  c  Ptoniotco  to  tlje  faiQ  Cljitrcfj  of  tl)c  Couicc  for  ^oucy.  $  pec  Cu^ 
?r  s.c.   naniitlie^> 

By  Nan-e  of 

Mackaller  v.  Todderick — Cro.  C.  353.  S  C. Go.C.  361.  S.  C. Jo.  143.  S.  C.  by  Xame  of 

Todderidge  v.  Mackalley 

S  C  cited         2*  3  Church  Parochial  may  be  a  Donative,  ntlll   exempt  frCUl  CrtH- 

rir  ^^6  in  "'^^P  Ittnfoiftion,  ano  tlje  Jncunibent  map  *  reiign  to  the  Patron, ann 
the  Cafe  of  "ot  to  tijc  SDrouiarp ;  jf^or  can  tIjc  n  ©lOinarj)  ijifit,  but  tf)e  Patron 
theBiJTiopof  bp  ComnulfioncrEi  to  be  appouitcD  bp  ijum  Co.  Litt.  144.  cites  Ip.  i. 
London  V.  ja.  15.  H.  Rot.  601.  betuicen  Famhiid  and  Gayer,  \\\  -crcfuafES  foe 
GenerT—  ^^^  Rector)?  i^atocljial  Donati\3e  of  et.  OSuricn  ni  CornuiaU.  Ee= 

*  The  Ke-   ^0^^^^* 

fijrnation  is  f;ood  both  in  refpeft  of  the  Thinj;  rcfigned,  and  of  the  Perfon  to  whom  it  is  made; 
For  it  being  a  Donative,  and  exempt  from  ordinary  Jurifdiftion,  the  Rcfignation  cannot  be  into  his 
Hands,  and  the  Incumbent  fhall  not  be  conftrained  to  keep  the  Church  whether  he  will  orno,  if  the 
Patron  will  not  accept  it,  and  becaule  there  is  no  Perfon  to  whom  the  Refignation  cati  be  made,  but  only 

into  the  Hands  of  the  Patron  it  is  good     Per  Cur.  Yelv.   do.  Pafch.    3.   B.  R.    Fairchild   v.  Gayer. 

. Brownl.2ot.  S.  C^ -Mo.  765  S.  C Cro.  J.  63.  S.  C 

H  The  Ordinary  has  nothing  to  do  with  a  Donative;  which  may  pafs  bv  Gift  to  the  Parfon  without 
Inftitntion  or  Induction,  as  is  fiiid  8  Afl".  51.  And  the  Donatives  of  tiie  King  are  out  of  the  Jurifdiction 
of  the  Ordinary,  and  not  vifitablc  by  him.  Dav.  Rep.  46.  b.  Pafch  5  Jac.  B.  R.  in  Ireland,  in  the  Dean 
and  Chapter  of  Feme's  Cafe. 

s^c.  cited      3,  But  in  fuel)  cafe  of  a  Donatiiae  ]i3aroc!jiai  a  ajait,  tolio  isj 

Inclvo     ^'  "'^'■^^>'  ^  Layman,  is  not  capable  tljCrCOf,  bUt  a  CfCtlt  :jnfra  €)acr0g 

5Z0  cap!  14  Ortintcis  ijs ;  Jf or  xW  ijc  comes  \\\  bp  lap  Donation,  ano  not  by  aD^ 

Wats     milTlOU  antl  JnaitUtiOn,  vet  W  Funaion  is  fpiritual.'  Co*  JLitt*  601. 

Comp  Inc.  tt)e  faiti  Cafe  of  ^t*  'Bunen  faiQ  to  be  EefoIncD. 

Svo.  5-5, 

3c6     cap.  15.  cites  .*;.  C Popham  Ch.  J.  faid,  That  tho'  a  Church  Donative  in   the  Execution 

of  the  Charge  be  fpiritu.il,  yet  the  Patron  may  collate  a  mere  Layman  as  well  as  the  Kins^  miy  make  a 
Temporal  Man  a  Dean,  Qiiod  fxpe  accidit ;  But  Gaudy,  Fenne'r,  A'elverton,  and  VS'illiams  contra. 
Yelv.  61.  Patch  3.  Jac  in  the  Cafe  ot  Fairchild  v.  Gaier. 


(s.) 


[Prefentation]     Parfon.     Patron.  3 1 3 


(S)  Adv^ovvfon,  Church  "with  Oire.  ff'hat  was  a  Church 
with  Cure.  [And  ^ho  Ihall  be  faid  to  hazie  the  Cu- 
rnm  AmmarumP\ 

The  C!iui-i,h 

I.     \     Prebend  |£(  nOt  UHtl)   CUtC  Of  ©OlllS*    29.  (£.   3.  44.    ^U-  bonrnd  in 

£\    UUtrCD.  Suir.-xlw.sa 

2.  JftOCVe  be  a  Vicar  endowed,  who  is  Prcfentative,    and   a  Parfon  ^-"y^  ""<< 

Prefctacivc,  \t  fcemiS  tljitt  tijc  patfoit  ijad  nattl)c  Cure  of  ^"1^ /v/.V.  ,d 
but  tije  Dicai%  5.  ۥ  2.  fiauarc  3Hupcmt  i6j.  pec  iiJafton*  mittd.infti- 

tutcd  and 
in^uBed  ami  Both  haie  Hciifes  there.  In  F.jeftment  forthe  Pv^eftory  it  was  infifted  for  the  Vicav,  That  the 
Vic.jrpays  Sywdals  ami  Procurations.,  and  ether  Cha:\!cs  oj  the  f'ijitation  only,  and  was  Jtteiidavt  upon  the 
Ordwary,  and  reads  divine  Service,  and  officiated  there,  'wVhh  the  Parfon  di  I  not  ahove  once  or  tuice  in  the 
Tear;  And  fezeral  ancient  Inflitulions  and  fndtiHio/s  of  Vicars  were  produced,  lut  they  ciuld  not  Jlevj  tie 
Endo-j.'ment'irfr/f  ;  On  the  other  Side  it  v.as  infifted  for  the  Kif;litof  the  P.irlbn,  that  all  Sine-Cures  are 
fuch  either  in  refneit  of  the  Inability  of  the  Parlbn  as  Impropriators,  or  in  repcft  of  Privilege  at  not 
being  vKlfablc,  That  it  could  not  be  a  Sine  Cura  as  to  him,  becaufe  he  wis  inftituted  by  the  Ordinary, 
and  therefore  vKitable  by  him.  It  was  ngreed  per  Cur.  That  as  well  Parfon  as  Vicar  may  have  Curam 
Aniniarum  within  the  fame  Church  ;  For  ijiere  may  be  two  dilHnft  Patrons  and  two  diftinct  Licum- 
bents  of  the  umlivided  Moietiesof  the  fame  Church  ;  And  they  paid  no  Ri  gard  to  the  Cafe  in  Roll  Pre  • 
fentmcnt  ^41 .  For  both  being  Prefenrative,  the  Cure  Prima  facie  is  in  both  ;  And  \yheth_er  Habitually  in 
the  Parfon,  and  .JcJua/ly  in  tlie  Virar  is  Matter  of  Evidence,  fince  everv  one  that  is  inftitpted  hasC^ure, 
t'lo'  (Accipc  Curam  tuam  &  mcam)  be  not  in  the  Inllrument  of  InlHtutioii,  in  which  Obfervation  Lord 
Coke  [Co.  Litt.  ;;4]  is  mirtaken.  Md.  4z6.  Mich.  21  Car.  z.  B.  K.  t:iarkev   Pryn  &Clarkv.  Heath. 

Kote,  it  wasfaid,  That  there  are  fcveral  Cliurches  in  England  which  have  Vicars  endowed  with  Cure, 
and  yet  the  Parfon  has  concurrent  Cure,  and  both  take  tie  U.ith  ot'Ca>.oni,  at  Obedience,  andbo\\\  .ire  (ub;eit 
to  the  Ordinary  as  to  their  Lives,  Doctrine,  and  Repairs  of  Hou'es  £:c  Ibid  42- And  after  Confe- 
rence with  Sir  George  Palmer  the  Attorney  General,  he  fiiil,  That  rhc  Law  had  been  taken  before  to 
be,  that  every  Lilfitution  fuppofed  a  Cure  of  Soul.s,  yet  by  his  Experience  in  his  Office  he  found,  that 
the  Kirg  had  feveral  Donatives  in  Wales,  and  vet  die  Parfons  thereof  are  prelenteda-  d  inllituied  by  the 
jBifhop  as  well  .is  the  Vicars  ;  But  he  intends,  That  tlie  Dears  are  infiilutcd  to  all  tie  Spirttu.illies,  ^vd  the 
Parfcns  to  all  th,  T'einporalt/es,  except  fuch  irl  erecf  tie  I'icar  is  ehdoiied;  And  (aid  he  had  fcen  two  P-ece- 

ricTits  among  the  Antient  Charters  in  the  Tower  to  that  Purpole.  Ibid. Vent.  1  5-  S.  C.  by  Name  of 

H;atli  V   I'rvnn. 

A  Parfopage  and  Vicarage  are  «-^-j  difiy.B  EcclrfJafical  Benefices,  and  the  Parfon  and  Vicar  have  Curam_ 
AnhwMum,  \hc  Parf.n  H.o.-tuaHtet;  xrA  xhe.  I'lcar  ^-JHualiter.  Per  Koy  Arg.  Cro.  J.  51S.  in  (ya,e  of 
Britton  v.  Wade,  cites  31.  H.  6   14  17.  E.  5.  -,6.    5  E.  2.  Quarclmpedit  165. 

^.  Jf  nil  Abbot,  or  fuel)  UUc  Spiritual  ^an  Ijau  been  P^irfon  Ap- 
propriate before  the  Statute  of  Monulteries,  IjC  fljOUHl  IjaUe  tl)C  CUtC  Of 

^ouisi ,  for  be  Differs  trom  anotljct  l^nn'on  m\\>  \\\  tbi5,  Cbat  \)z 
njall  be  l^arfon  perpetual,  aurj  tljc  otOcr  but  for  Lite.  Com*  Greudon. 
496.  b. 

4.  a  Donativeofthe  King  map  be  MbtljC  CUtC  Of  €oilUl0,    n0  tljCCR),!'!  >• 
Church  of  the  Tou  er  of  London  ;  CijISi  IJ5  a  DOiiatlViC  lUltij  €\XXt,  aU<3  ^''-  ^• 

Of  trc  e'lft  *  of  tijc  l^inn;  ^  Jfor  till  toe  Cuiie  of  i^uiij  'im\  all  io\- 
njoprlchei  tit  Cnglnnri  mere  Donanbcs,  aitn  fo  tljep  are  at  tl)iEi  Dau  _   .   _ 
UTiirelaun.  93.6.  Car. 'B.  ilv  betuiecn  Fide  her  and  Mu-kc'iur,  pcrspThere 


al'o  ano- 


Curtain,  ui  an  Juforinatioii  upoutije  Statute  of  <S)miou)>,  fortahtnff  r^ ...  ,  . 
tljc  ClHuxlj  of  tijc  ©oujct  cbeuis  a  Donattuc  of  tijc  uuiij)  for  il5onep,  curches. 

which  are 
neither  Prcfentative  or  Donative,    but  Stipendiary,  and  yet  have  Cure  of  Souls  ;  as  if  there  be  an  Impro- 
priation, and  It  has  7,0  licara^ee,  but  only  a  certain  Stipend  is  give  i  ye.irly  to  hiin  that  ferves  the  Cure, 
and  that  is  mccrly  Datite,  and  at  the   I'lealilrc  of  the  Ittlpropria'.or.     6  iSlod.  250.  in  Cafe  of  lacub  v. 
Dallow. 


4  K  (T ) 


314-  [Prefentation.]     Parfon.     Patron. 


(T)     Patron  of  an  Advovvlon,  who  ;  and  how  confidercd. 

frhcre  one  has   the   'Nowiuatmij   and  another    the  P/c- 
Jentathn. 

I-  T^'  Quiire  Iinpcdit,  the  Plaintiff  cow/// t;^////)o;;  Fiiie^  hyjohkhj.  N. 
X  granted  to  W.  P.  and  lots  Verne  and  tkeir  Heirs,  1'bat  as  cftefi  as  the 
Chapel  of  B.  voids  ^  they  Jhall  prcfent  a  Clerk  to  the  Grantor^  or  his  Heirs^ 
ami  that  they  pall  prefent  him  over  to  the  Eijhop  ;  And  per  Curiam  this  is  a 
Grartofthe  Prefentation,  but  becaufe  it  came  to  the  King  by  Eicheat 
and  he  counted  as  above,  bat  did  not  Jbeiv  if  he  prefentcd  to  the  Grantor] 
and  he  rcjitfed  to  accept  it,  or  if  he  accepted  it,  and  would  noc  prefent  o\'er 
to  the  Rilliop,  theretbre  it  was  Uncertain,  and  was  Amended  ;  and  fo  fee 
that  the  GranLcc  was  Patron,  and  therelorc  he  lliall  not  be  put  to  Writ 
oi  Covenant  againlt  him,  who  ought  to  prelenc  over,  but  Ihall  have 
Quare  Impedit.  pi.  99.  cites  24.  E.  3.  69. 

2.  In  Qiiare  Impedit  the  VWmuiY  counted,  that  the  Albot  of  B.  Time 
out  of  Ml nd,  and  his  Covent,  have  ufed  to  elecJ  one  of  their  Monks  to  be 
thinks 'the  ■^^'"^'^  ?/.^-  "^^huh  IS  a  Cell  to  the  Mvnajlery  of  B.- and  prefent  him  to  the  An- 
L;iw  to  be  cej^or  oj  the  Plaintiff'whofe  Heir  i3c.  and  that  they  have  ufed  to  prefent  him 
I'^'rh'^N^  0-vr  to  the  Ordinary,  a?id  alleged  Prefcription  th^icin,  and  alfo  Seifm,  by 
hnchthe  ISO-  Prefentation  oi  one  T.  B.  who  was  admitted,  and  that  their  Prefentee 


Dod.oFAdv, 
6;.L:dt.  12. 

fays,  He 


m;n.;tlon  and 


a 


another  the  ^^  admitted  is  dead,  by  whole  Death  the  Church  voided,  and  now  the 
Piv'entation,  Abbot  has  prefented  immediately  to  the  Billiop,  without  prefentini^ 
T't  '^^^.  '^''"  ^^  "-^^  Plaintiff,  and  fb  dillurVd  him,  to  the  Damage  &c.  And  ft 
^ome'rvoid"'  '^  ^'^'^  there  that  P;Ym>//o// /J //#67V;;/ Title  of  itfelfj  for  \t  fiifficcsto 
if"  the  Lapfe  /^^J'j  '^^'  ^^  '^  Lord  of  the  Manor  ofC.  and  that  all  the  Lords  of  the  [aid 
incur,  and  Manor  Time  out  of  Mind,  have  prefented.  And  per  Sicip.  Diverfe  Pre- 
he  that  hath  ientments  in  Quare  Impedit  are  double;  and  the  Defendant  laid  that 
Prcfciuion  '^"''"^  outofAlind  the  Abbots  have  prefented  immediately  to  the  Ordi- 
oiily  pidcnts  "^^y,  and  after  have  ufed  by  their  Letters  to  certify  it  to  the  Earls  of 
totiicEini-  H.  whofe  Heir  the  Plaintiff  is,  requiring  them  to  be  iavourable  to 
^h  ri"'^  "^'^^'"^  ^^  ^^'^^  ^'  ^'  ^^^  ^°  prefented  by  the  Abbot  to  the  Ordinary, 
take.  Benefit  '^^^^  instituted  and  received  Abfque  hoc,  that  he  was  received  and  inftitut- 
ofthe  Lapfe,  ^'^  '^^  ^^^  Prelcntment  oi  the  Earl  Anceitor  of  the  Plaintiff  j  Prift  and  the 
without  any  Plaintiff  e  contra  i  and  fo  it  fcems  here,  that  if  the  Count  is  true,  the 
Nomination   Plaintiff  is  Patron,   and  not  the  Abbot;  qu«ere.     Br.  Quare  Impedit,  pi. 

of  the  other,  ^^^     ^-^^^^  £_  ^  ^  f  J  F 

the  Bifhnp  in  t        3     /  / 

this  Cafe  ought,  and  is  bound  to  admit  his  Clerk,  that  he  fo  prefentcth  as  tl^e  Clerk  of  the  Patron  hiin-  ■ 
felf  If  RelpcCt  be  had  of  each  other,  then  are  they  both  Patrons  after  a  Manner,  and  by  Injury  oftet"- 
ed  by  every  of  them  to  the  other,  one  of  them  may  punifh  the  other.  As  if  he  that  hath  the  Nomina- 
tion will  prefent  immediately  to  the  Ordinary,  he  that  hath  the  Prefentation  may  brint;  a  Quare  Impedit 
or  a  Writ  of  Rigiit  of  Advewlbn  aj^ainft  him,  as  his  Cafe  requires ;  fo  if  he  that  hatii  the  Prefentation 
refufes  to  preleni  the  Clerk  nominated  to  him,  or  prefents  one  himfeif  without  Nomination,  the  other 
fhall  bring  a  (luare  Impedit  or  a  Writ  ot  Right  againft  him,   and  his  Writ  fliall  be  Quod  permittat  ip- 

fum  prxfentare  &c.  but  in  his  Declaration  he  fliall  declare  the  fpccial  Matter. -And  tho'  the  one  has 

Writ  to  the  Bijhop,  yet  this  fliall  not  Ouft  the  other  of  the  PolTedion,  And  if  the  Parfon  makes  a  Leafe  or 
grants  a  Rent-charge,  this  Charge  ought  to  be  co?ifrnied  Ly  Both;  but  in  Writ  of  Annuity  brought  againft 
the  Parfon,  .-/W  is  graniableonly  of  him  that  hasthe  Preicntation  ;  For  this  is  in  the  rit^ht  Mo  aq   ij.- 
Pafch.  5.£Uz..  Anon.  ""  ^^'    '*'' 

The  Writ  3.  Quare  Impedit  the  Plaintiff  made  Title,  becaufe  Fine  was  levied  be- 
Quod  Per-"  ^""^"^^  J'  ^-  ^"i^  the  Jbbot  of  B.  of  the  Advvjofon,  and  the  fame  Abbot 
mittat  ipfum  glinted  by  the  fame  Fine,  that  J.  N.  and  his  Heirs,  at  every  Avoidance, 
prscfentare  ;  fhall  uanie  to  him  his  Clerk,  and  he pvuld  prefent  him  over  to  the  Btpop,  and 
hit  his  De-  alleged  Seijin  accordingly,  and  that  the  Church  is  void,  and  he  named  a 
CnbtSu-  ^'^-^^  ^^  ""^^  *  Abbot,  and  he  would  not  prefent  him  to  the  Biihop,  by 
.,•.;/,  vii  which  he  brought  Quare  Impedit,  and  it  was  Quod  permittat  ipfum  No- 
That  the  niinare  Clericum  &c.  where  it  Ihould  be  Prefentare  Clericum  ;  and 
Pl,.ir.tift-        therefore  the  Writ  was  abated.     Br.  Quare  Impedir,  pi.  56.  cites  +  4  H. 

ouglit  to  no-    iiQii  ijr-'  it 

nil  ate  one,     *'" 


[Prefentation.]     Parfbn.     Patron.  g  1 5 

and  thst  he  ought  to  prefent  him  over  to  the  Bifhop,  and  the  fVrit  to  the  Bipcp  upon  a  Recovery  by  thi 
}?\Ani\fi  fialt  if,  ^tod  F.ftfcopts  fldniiltatClerutim  ,Td  Devc>7ii}iAth7itr>iSi:c.  Dod.  of  Adv.  65.  LcCt.  12 
*All  the  Editions  ot  Brook  are  (EveCquc)  but  it  leems  is  llioald  be  (Abbe.) —  [  f  It  fliould  be  14  H 


4.  10.   I  J.J 

4.  IF  a  Man  grants  to  me,  that  /  pall  name  a  Clerk,  and  he  pjall  prefent  ^  C.  cited 
him  tothe Ordinary,  I  am  Patron  i  but  if  he  rrants  to  mc,  that  I  'jkaU^'^'^^^^^^\- 
ncviietivo^  and  he  fhall  prcfait  the  one,  I  am  not  Parron,  by  reafbn  that  he  bur  miTprint- 
has  the  Elcclion  j  and  G>j;;f  of  Nominatton  and  Prefentation  is   all  o;/i?.  cd,  as  1 4  E. 
Per  julticiarios.     Brooke  fays,  Quxre  in  whole  Name  the  Letters  ot'4-  (i6) 
Prelencacion  Ihall  be  made.     Br.QuareImpedic.pl.  i??.  cites  14,  E.  4.2.  ^^''^'''""* 

^  '  r         •>■>  t         T         there  are  not 

lb  m.iny  Folio'.s  hi  tl«t  Year  ;  but  it  (hould  be  14  E.  4.    2.  b,  and  the  Mill.ike  fecms  to  be  by  tiirninp- 

the  (b)  iiuo  (()) LBut']  it  a  Man  irr.ints  to  me,  tlmt  I  and  my  Heirs  pall  name  the  Clerk  to  the 

Church  of  D.  as  often  as  it  voids,  and  that  the  Grantor  ^jal I  prefent  the  fame  Clerk  to  the  Ordinary  ;  In  this 
Cafe  lam  Patron,  and  fliall  haveQuare  Impedit.     Br.  Quare  Impedit.  pi.  144.  cites  14H.  4.  n. 

5.  If  he  that  hath  the  Nomination  prefents  to  him  that  hath  the  Pre- 
fentation, he  that  hath  the  Prefentation  may  dijhirb  in  two  Manners,  ei- 
ther by  rejiifing  the  Parfon  nominated,  or  by  prcfcnting  foine  ether  himfelf 

that  is  not  nominated.  If  he  *  refiife  to  preJent  him  that  is  nominated  to  *  if  the  Pre- 
him,  and  Suit  be  commenced  lutthotit  anyafiaal  Prefentation  made  by  him-  fentor  re'iifes 
feif,  then  the  Writ  to  the  Biihop  of  him  that  hath  the  Nomination  ihall  tojrefent  tie 
be,  'That  he  (JmU  recover  his  Nomination,  and  that  the  Bifljop  fhall  admit  fhe'x'^'rn^n 
fuch  as  the  other  hath  nominated  to  the  Prefentor,  according  to  his  Grant  tor,no  Acti 


pre 

Ihall  immediately,  without  any  Nomination  at  all  to  be  made  to  the  poi-dv. Hof- 
other  that  hath  the  Prelentation,  [have  lVrit'\   to  remove  the  other  Inciim-  kins. 
lent.     Dod.  of  Adv.  68,  69.  Lect.  12. 

6.  If  one  hath  the  Nomination,  and  another  the  Prefentation,  \'L  fach 
Right  ot  Prefentation  accrues  to  the  King,  he  that  has  the  Nomination y/!;<T// 
ncminateto  the  Chancellor  ftill,  ixho  in  the  Name  of  the  King  jh  all  prefent  to 
the  Ordinary.  And  if  the  King  prefents  ivithoiit  any  fach  Nomination,  the 
Nominator  ihall  bring  his  ^lare  Impedit  agatnfr  the  Incnmbent  only, 
becaule  the  King  cannot  be  termed  as  an  Ulurper.  Dod.  of  Adv.  69. 
Left.  12. 

7.  If  a  Stranger  prefents,  he  that  hath  the  Nomination  and  he  that  hath 
the  Prefentation  Ihail  join  in  J^hiare  Impedit ;  the  Book  ftys,  that  each  of 
them  fhall  have  Quare  Impedit.  D.  48.  pi.  17.  Marg.  cites  P.  jEliz,. 


(U)        Incumbent.        Who.  ^ri?'^ 

TH  E  Incumbent   after  a  Recovery  agauifi  him  in  .^:iare  Impedit 
continues  Incumbent  de  facto  'till  Prefntment  by  the  Recoveror. 
2  R.0II.  R.  62.  Mich.  12  jac.  B.R..  in  the  Cafe  of  VVhilllcr  v.  Singleton. 

2.  Where  there  is  an  Avoidance  de  Facto,  and  the  King,  f'nppc/hig  he 
hat b  a 'Title  to  prefent  by  Lapfe,  doth  accordingly  prefent,  when  in  Truth 
he  hath  no  fuch  Title,  and  a  Recovery  is  had  againlt  him  by  one  who  had 
no  Title  ;  tho'  he  which  comes  in  by  fuch  Lapfe  is  not  Incumbent,  nor 
gains  the   Patronage,  vet  he  is  an  Incumbent  as  to  all  Ecclelialtical 

.Things  (viz.)  To  have  Offering,  Tithes  &c.     Hutt.  66.   Mich.  21  Jac. 
The  lecond  Refolution  in  the  Cafe  of  Rudd  v.  Biihop  of  Lincoln. 

3.  If  iho  King  prefenrs  and  mi'flakes  his  Title  his  Prefcntment   is  void,  But  where 
and  the  PrcRntcc  is  no  Incumbent.     Arg.  Het.  51.  Mich.  3  Car.  C.  B.  J"^-'jj^''t',f"' 
in  Thomfon's  Caie.  cites  6  Rep.  26.  Green's  Cafe.  Prm.iial 

Cafe  fu'd  for 
Dilapidation,  the  Court  denied  a  Prohibition,  becaufe  t'la'  he  was  now  Incumbent,  and  they  would  not 
take  Notice  of  the  ill  Picfencment  of  the  King-  But  in  Cafe  of  Siwony,  the  Statute  makes  tiie  Church 
void,  and  then  the  Jiidres  may  take  Notice  of  that,  and  grant  a  Prohibition  it  the  Parfon  fues  for  Tithes. 

He:t.  51.     Thomlon's  Cafe. Litt.  Kep.  6:-.  o.  C. 

4.   Pnflffion 


^i6  Prefeiitation. 


4.  PolJc^inn  as  Incumbent  is  not  of  the  Incumbency  itfclt.    Per  Richard- 
foii  Ch.  J.   Lite.  R.  204.  Trin.  5  Car.  C.  B.  in  Prult's  Cafe. 

For   more  of    Parfon  and    Patron  in  General,   See    I^^pprOprtatiOltS, 
DlfmCSi,  DonatllJCj  l^rOljtbltlOn,  and  other  proper  '1  itles. 


Prefentation. 


*  A  Prcfen- 

iMo'^athe  (A.  a)     To  aohat  Th'tm  a  *  Prefentation  may  be. 

h'onriv-Jlion  ef  '  <->  •' 

adru'ttli  avd      JD  ifaiinnct0  ann  patrons  of  Priories  or  Abbiesj  UlCCC  lUOnt  tO 

inftituud  hy  preunit  J3nor0  or  2lbbot0»    1 1 1).  4*  68.  b* 

hi>n  to  the 

Benefice  void  ;  and  the  "ame  being  in  Writing,  is  nothing  but  a  Letter  Afipve  to  the  Bidiop  or  Ordiriaiv 
to  exhibit  to  him  a  Clerk  to  have  the  voided  Benefice  ;  the  forniJil  P'orce  liereof  relieth  chiellv  in  thel'c 
VS'ords  (Pr^lento  vobis  Clcricum  meuni)  Dod.  of  Adv.  6;.  Ledt.  12.  cites  i;H.S.  14.  b.  Aid 
fays,  That  therefore  in  our  Books  of  Law  an  Advowfon  iscatl'd  nothing  but  a  Nomination  or  Prerema- 
tion,  a  Power  to  enable  another  to  have  the  Bcncfrue,  which  notwithlianding  the  Patron  cannot  enjoy, 

2,  But  a  free  Eleflion  was  granted  by  King  John  tO  tiJC  j^tiOrS.  n 
p.  4.  68.   In 

3v  Jt  10  gooti  ufiiffc  tljat  tl)c  abbot  fljall  name  a  Monk  to  tlje 
li)atron  of  tijc  Priori,  luljicf)  i6  a  Cell  of  ti)c  abbp,  ann  tbcjaatron 
fljall  prcfcnt  Ijnii  o\jcc  to  tljcoaifljop,  ano  To  fljall  be  tnlTttutcD.    u 

p,  4.  68.  b. 

4.  S>o  it  is  a  ijoou  atase,  tljat  tlje  Co>jcnt  of  a  priorp  fljall  elect 
a  Prior,  ann  fljall  nominate  Ijnn  to  tljc  [Matron,  anti  ijc  fljall  preiint 
Ijmi  ober  ^  anti  if  tljej)  bo  not  cljoofe  iwtljin  fibe  $?3oiitij5,  tljat  tl3C 
patton  map  prefent  uiljom  Ije  pleafe.    3°  ^*  3*  ^u  b» 

5.  a  l^refcntment  map  be  to  a  Deanry,    17  €»  3.  40*  anjiiDgU 

6.  a  prefcntuicnt  map  be  to  an  Hofpitai.    21  <£♦  3>  6.  b. 

A  free  cha-     ^^  fj  ^refentment  map  be  to  a  Chapei,    14  jp.  3.  £iuare  31mpe?it. 

Ly,woUe.ws,^^i*      '^m^\St}j. 

the  one  by  Grant  of  the  Kii-g  to  make  it  Donative,  and  the  other  to  make  it  Prcfentative  to  the  Ordi- 
nary, and  then  the  Ordinary  may  meddle,  and  may  prefent  by  Lapfc;  Contra,  Where  it  is  Donative  by 
the  Founder  and  liis  Heirs,  and  there  the  Ordinary  cannot  vijit  it ;  and  ivhen  FreeCh;;peI  Donative  iswW, 
the  Fcuiukr  miy_  re-take  it,  and  ntt  appoint  any  other  Incumbent.  Contra,  of  a  Prefentative.  Br.  Preleii- 
tatioii.  pi.  45   cites  6H. -.    14.    Per  Keble. 

^^%^pw^r  ^»  ^^  ^  S)tri'inn:cr  prefents  to  a  Donative,  ann  Ijiscierfe  isinlfi- 
comp  inc'^  ^i^t^^  ^"^  inbuaeo  tijercupon,  pet  it  is  meerlp  boib*   Co*  Litt.  344- 

Svozoj.cap. 

13.  . , . 

See  Dona-  (B.  a)  ffljcit  AQt  OF  Thing  mil  make  a  Church  Pirjenta- 
"''^'  t'tve,  which  is  not  Prcientative  of  itlelf. 

6^^Pa?ch  "^-  i^Til^  tljC  Patron  of  a  Re£torv  Parochial  Donative  prefcnts  thereto, 
Jac  BR  in       1   and  his  Clerk  is  admitted  and  inltituted ;  tl)tS  iS  HOU)  bCCOUie 

the  Cafe  of  i^rcfcntatiijc,  anB  ne\)er  fliaU  be  DonatiHe  aftetiuaros.  Cti.  litt.  344- 

Fairchild  v. 

Gayer, So  of  a  Chapel  Donaiite.     Br.  Corporations,  pi.  76.  cites  old  Natura  Brevium  ;  5, .5".)  ot  * 

Chapel  annei'd  to  another  Cltifch.     Br  Quare  Impedit    pi  39,  cites   Fifth,  tit,   Quare  Impcdir.   151.    18 

E.  ^.    15. Br  Prefentation,  pi.  9.  cites  47  E.  5.   4. ■  Soli   an   Abbot  P.irfori   ii^ip.irfcnse  pti/er.ts- 

Br,  Corporation,  pi.  76.   cites  Old  Nat.  Brev.  35. So  if  a  Man  pre/ents  to  an  .■iUey  LleHrje.     Br. 

Corporation,  pi.  76. 

A  or; vats 


Prefentation.  317 

A  private  Aft  of  Parliamfiit  divides  one  Parifli  into  three  ;  and  enafts,  that  the  Right  of  Parron,if;;e 
and  Pi-eicntation  {hall  belong  to  the  Dean  and  Chapter  of  D.  in  fuch  Manner  as  the  Nomination  or  Prc- 
fentation  of  the  Old  Churcli  did,  and  not  otheiwile.  The  Old  Church  was  a  Donative.  The  new 
Churches  fliall  be  prelcntible.     MS.  Tab.  Tit.  Ad  vow  fon.     F"eb.  19,  i  - 1  7.   Shirt  v.  Carr. 

2.  But  If  ilSrrane^er  prcfents  tIjCrCtO,  nUtl   lltfi   ClCtU  tSi   atJlUfttCtl  ^  P  Watf 

am  inftitutcti,  va  tijis  fijail  not  uialic  it  ipicclcutatiuc,  bccaiiQ:  it  isi  ^"o'^.s""' 
uicrelp  \joio*   €o,  Litt»  344-  cap.  12-^ 

S.  p.  Watf.Comp.  Inc.  8vo.  524.  cip.  ip 

3.  If  the  King  prcfents  to  a  Chdpel  by  Name  of  a  Churchy  it  fhall  lofc 
the  Name  of  the  Chapel ;    quod  nota,  Br.  Prcfentation.  pi.  9.  cites  47 

E.  3.  4- 

4.  Tho'  ufually  a  Free  Chapel  is  Donative,  yet  by  the  Foundation,  or 
alter  by  Covipofttivn^  it  may  be  Prefeutative.  Watf  Conip.  Inc.  8vo. 
cap.  12. 


(C  a.)    Preientment   to   the   Church.    If%iit  Pcrfons  may 
prejentj    and  ^vho  lliall   have  the  Preientment. 
The  King  or  others. 


■tr. 


!•  TJF  tt  Prebendary  Of  a  Prebend  bC  elccled  Bifhop,  and  after  the  King  Dr.  Spenee 
grants  the  Tempor.ilcies  to  him,  and  afterv/ards  he  is  conf;crated,  ^^.'^'^l  ^■'^'^■ 

t\)t  T5ifl)0p  %\\{  Oauc  t\)Z  i3rcfctttmcnt  to  tije  Prebend,  atiD  not  tlje  Snd uitrjf 
i^ntn;,  liccaufc  it  id  not  uiatJC  Uoin  tilt  Coiifcccation,  nt  uiljicO  '*Einic  eiv,  was 
Ijc  tCaS  '3ati-0!t;  for  tijc  [13ifljap  in  Ej'pcct  of  tijcj  istajopnctt  uinsi  '''■^'ieD,j,„ 
\mxm.   41  e.  ■■!.  5-  b.  aB)unn;cn»   46  '^.  3-  34-  accorouiijlP)  iutjere  f^,  ;  ^  "^' 
tije  ^iicumti^'itt  of  ait  Hofpitai  is  crcatcn  a  X=5iflj'jp.  "  P.ehend  was 

avoided  by 
Ceflion.     The  Quef^ion  was,  Who  fliould  prefsnt  to  the  Prebend  the  King,  or  the  Bifhop   to  wliom  ic 
did  belong,  if  thi.s  Celiion  had  not  intitled  the  King?     The  Judges  feemcd  to  incline  for  the  King,   but 
it  was  adjourned  for  further  Argument.     Freera.  Rep.  256.  pi.  272.  Trin.  167S.  The  King  v.  Bilhop 
of  Ely. 

2.  But  if  tljtJ  Incumbent  be  made  Bilhop  by  the  Pope,  aUU  aftCt  tljC 

Ccmporaltic0  arc  grantcn  to  Ijim,  tlje  twwi  (Ijall  ptefent  tocixto,  tijo' 

tIjC  Bilhop  be  Patron      46  <Q..  3.  32. 

3»  Jf  tljC  King  creates  an  Incumbent  of  a  Common  Perfon  a  TSltljOp, 

tijc  patron  fijali  pitfcitt,  ant)  not  tljc  l\m.   41  £•  3-  s-  b.  atiinittea,  fl;,';"?^^"", ,, 
anti  *  44  <J5»  3-  15-  b«  atJnutten.   46  €,  3-  32.  atimittco*    7  'tx  4-  oe.«../  aUi". 
25.  b.  26.  atinuttct!.   iilp»4.  3^-   21  (£.3.  40.  atJuiitteo.  jfottbcj^,  the 
lAino;  maoc  fiTitic  to  it  as  ©imraian  in  CijiualtD  of  tijc  |i>atroiu    D.  ^^'"s  °'- 
6(£U228.  48.  ano  7  eu  223.  12.  aUjUDijco  as  it  fcems.  ^^i!ttije°J,f;,X°" 
Into  is  otljcruiifc  now  acncrallp  taticn  ana  aixrcco,  fcilicct,  CfjuttijCtohis  An- 
t  Hins  fljail  ()a\3C  tfic  prcfcntmcnt.  Contra.  D.  29  ci.  05*  i\.  a'o/- dent  B.ne- 
//?«^^!3  Cafe*  ^i^t  ^"*''* 

of  the  ra- 
lfrdn:5^or  fome  fay  now,  that  in  fuch  Ci(e  of  Creation  the  Kin^  pall  prefent  to  a!!,  of '■juhofoeicr  Pairon.i^e 
they  lire.     And  per  Xorro-i,   B.tfl.ird  fhall  not  prefent  to  a  Church  ;  ^i£re  of  thia  Uihge  ;  for  il  feems  th.it 

the  Kinc jh.iH r.ot  irej'et'.t  to  .vnthfrs  Jdvr^vfon.     Br  Prclentation,  pi.   14.  cites  11  H.4.  57.- i'arf.r,  it 

made  a  f'ijhop;  tlie  Kin;'  fhall  pre'ent  not  only  HacVice,  but  Tutiej  j^h/oiics  5  Lev.  5--.  Mich  5  VV. 
&  M.  C.  S.  The  King  v.  the  Bifh»p  of  London.— The  King  Um  the  lame  Prerogative  in  ChtirJ.ei  rifu/- 
ly  erelfed,  as  in  o'ld  Ch'urchc^,  to  prefent  on  Protvothti  of  a  Parfon  to  a  Bifhoprick.     3  Lev.  %'iz.   Mich: 

5  W.&  M.  C.  B    The  Kir.g  v.  Tlic  Bifhop  of  London. ♦  It  fliould  be  4.^  E.  5.  25.  b.  pi    94 

\  Mo.  599.  Wright's  Cafe.  S.  P. 

4-  3if  a  Church  void?,  to  which  the  Bilhop  h.is  Title  to  prefent  aS  F^/itwas 
19atron,  in  Kcipca  ot  the  Temporakies,  if  !jC  dies  bv^forc  Preientment,  1^1'/-^^. 

4  ^  tljC  """' 


^i8 


Prcfentation. 


tinit  the  tijf  ji^^imi;  tij^iii  j^qvjc  il]c  |i)rcrciitment,  niiti  not  W  Creditors*  *  53 
tio  wmc  in-  ^*  3-  26.  9  H.  6.  16.  b.  anuuttcli*    24  e«  3-  -6.  b.  Citna* 

to  tlic  King's  Hands.     Br.  Piefcntation,  pi  4.  cites  44  E.  5.  5.  Per  Thorp  &  Belknap. -The  Truth 

of  tlie  Caic  wa.s,  that  the  Bijhop  prefetited  his  Clerk,  ivho  tuns  Jdmitted,  hiftiluted  avil  [tninHed  kejoi-e  Din- 
ner, atuihe  died  tie  fame  D.<y  ajler  Dinner;  but  the  Prefentcc  was  a  Provifor,  and  i,id  rot  Ccvporal  Pojjef- 
ficv  in  Lije  of  the  Eij!:op.     Ibid.    [But  quxrc  as  to  the  Induftion,  tho'  it  is  ib  mentioned  in  the  Ye.ir-Book 

and'in  Brook  ;  ana  brook  favs  Sic  vide,  that  it  is  no  Plenarty  againlt  the  Kin:^  till  induccion.] 

Br.  Plenarcy,  pi.  9-  cites  8.  C. And  wlicre  the  King  has  the  Tcmporaitics  in  Time  of  Vacation 

and  dies,  tli'e  next  King  fhall  have  them,   and  not  the  Executors,  and  yet  it  is  but  a  Chattel.     Br.  Pre- 

rof^ative,  pi    S5.    cites  24  £.  5.  4;. If  here  the  Kiiip_  is  iiitilled  to  tie  FolfeJftoT:,  and  fnds  the  Church 

%oid,   he  Jh.ill  hme  the  I'rrjentixtimi;  and  fo  h  appears  often  in  F,  N   B.     Br.  Prelentatioii,  pi.  2c), 

^■/s  in  (^uare  Inipcdit  the  Bifhop  of  D.  was  Patron  of  C.  the  Church  voided,  and  the  Eijhop  gave  thePre- 
jentation,  fcilicet,  ni.ide  Coll.Utcu  to  W,  C.  and  after  the  Difhop  died  the  fun  e  Day  that  he  gave  it,  and 
ieiore  hifHtiition  and  f>iducfi:n,  by  which  tlie  King  had  Writ  to  the  Bifliop,  and  the  Gift  void.  Br. 
Prcfentation,  pi.  z<j.  cites  14  E.  5.  50. — ♦  Ibid.  pi.  10.  cites  S.  C. — Br.  (>aure  Lnpedit,  pi.  42.  cites  S.  C. 

5.  And  itl?(ljllCt  or  Biiliopbe  Patron,  and  the  Church  voidd,  aimt{)e 

aijljot  dies,  bp  luijici)  ttjc  Ci:mpcrnlttc0  come  tiita  tljc  paim  of  tlje 

i^IUQ;,   anQ  attCt  Li\erv  is  lued  bv  the  vSuccelibr  our  of  the  Hands  of 
the  King,  llje  tW.g  fljiVU  l^Mt  tfjC  PrjfCUlir.Cnt     7  P    4-   25-  i\  iS 

<£.  3.  I.  20.   24  €■  3.  26.  ii»  Curui* 

6.  Jf  during  the  Vacancy  of  the  Archbilliop  of  York,  and  the  Teni- 
poraltics  being  in  t!ie  Hands  of  the  King,  tIjC  Deanry  voids,  tfjC  t^JllJJ 

fljall  Ijauc  tljc  ]i)refcntincnt  tljercto,  ttjo'  by  Compoiition  humm  tlje 
arcijlnfljop  ann  tlje  Cljaptcr,  tljc  eijaptcf  io  to  elect  Ijim  i  foe  De 
Jure  tljc  i3atronaixc  tiiercof  belougsi  to  ttjc  arcljbifijop,  ann  tfje  Com= 
pofition  cannot  bino  tije  l^uisj  luljo  conie0  in  Paramount,  as  Supreme 
li?atrom    17C  3-4o-  al^Ht^KcH. 

In  Quare  7.  Jf  tljC  youngelt  Daughter  Coparcener  be  in  Ward  to  the  King,  anD 

jmpedit  the  (}jj  Church  voids ;  tljc  Bmg  fijall  Ijatic  tljc  l.i>refentation  alone,  ano 
^hTfs!"'''  not  tlje  otljet  Coparcenerss.   47  €,  3- 14-  b*  aoaiittcD, 

wasfeifed  of 

the  Munor  of  D.  and  the  Jdvcnifn  appendant  axd  prefenled,  and  after  ga-je  the  Manor  cani  pertinentjis  to  the 
Grandfather  of  the  Plaintiff  in  'Tail,  ivlo  ivasfeifed,  and  had  Iffiie  i^  Daughters,  and  died,  and  that  he  is 
heir  to  the  Ehiefi,  and  the  Tenant  in  Tail  died,  and  the  four  Daughters  e/.tered  into  the  Alansr  and  into 
ether  Land,  and  made  Purparty  (f  the  Land  and  Manor,  except  the  Jdvov.fsn,  -dnd  the  Ad vowfon  remained 
to  them  in  Common,  the  Eldeft  Daughter  died,  the  Church  'Voided,  and  they  Could  not  agree  in  tlie  Prc- 
fentment,  iy  which  the  Prefentment  Lelo?igcd  to  the  Plaintiff  as  Son  and  Heir  of  the  Eldeji  Daughter,  who 
prcfcnted  and  the  Defendant  difturb'd  him  ;  the  Defend.mt  faid  that  the  Land  ti-as  held  of  the  King,  and  he 
feifed,  and  the  three  others  ftied  Livery  of  their  Parts  (for  they  three  were  of  full  Age)  and  the  Plaintiff,  Son 
of  the  Eldeji  SiJJer,  was  uithin  Jge,  and  in  If  ard  of  the  King,  and  the  Church  W'ded  and  the  King  prefent- 
ed  ard  at  full  Age  the  Plaintift  fued  Livery  of  his  Part,  and  all  in  Common  fued  Livery  of  the  Ad- 
vowibn,  and  now  the  Church  is  void  again,  by  which  it  belonged  to  the  Defendant,  as  H&ir  to  tiic  fe- 
cond  Daughter,  to  prefent.  Laicon  faid  the  Prefentment  of  the  King  fhall  be  faid  m  the  Right  of  all 
the  Parceners,  and  not  in  Right  of  the  Eldeff  only  ;  and  therefore  now,  becaufe  they  cannot  agree  in 
Prefentment,  it  belongs  to  tiic  Eldeft  ;  which  Choke  denied,  and  faid  that  it  fhall  be  faid  the  Turn  of 
the  Eldeft  only,  which  the  King  took  ;  But  the  Cdurt  was  againft  him  ;  quod  nota  ;  by  which  the  De- 
fendajit  pleaded  Partition  toprtfcnt  by^'ttrn.  Br,  Prefentation,  pi.  55.  cites  5$  H.  6,  9. Br.  Preroga- 
tive, pi.  44.  cites  S.  C. Br.  Livery,  pi.  25.  cites  S.  C. 

*  S.  P.  Br.  8.  In  Quare  Impedit  it  is  agreed.  That  where  an  *  Incamhent  is  treat- 
Prefentation,  g^  ^  Btpop,  his  Aiic'teHt  Benefices  art  become  void  tn  Fad^  and  the  Patron 
s'  C^  p"*^l  may  prefent ;  but  f  where  a  Parfon  takes  feveral  Benejias  incompatible  naith- 
who  has*^  out  Licence  or  Plurality,  this  is  a  Voidance  in  Law,  and  he  ought  to  be  ds- 
an  Office  of  prived  of  one  of  thofe  before  the  Patron  can  prefent,  and  the  Patron  may  fue 
Sovereignty,  ^^^  Deprivation  to  the  Ordinary.     Br.  Prefentation,  pi.   14.    cites  11 

cannot  ufc      TJ"  ^t 

an  inferior      •"•   4*    37- 

OfBce 

I  Br.  Oppofition,  pi  3.  cites  S.  C. 

9.  Contifee  was  cf  a  Statute  upon  which  a  Manor  is  extended,  to  which 
Advowfon  is  appendant.  Per  Cur.  The  Advowfon  may  be  extended  i 
and  if  it  become  void  during  the  Conufee's  Eltate,  the  Conufee  may  pre- 
ient.  '  Ow.  49.  Mich.  32  &  33  Eliz.  Arundellv.  Billiop  of  Gloucelter. 

10.  It 


Prcfcntation. 


319 


10.  It  was  adjudged  that  I'm/Ices  of  a  Term  lor  500  Years,  tbr  tlie 
railing  6000  1.  iliould  prcfent.  See  Lutw.  902.  b.  Palch.  11  W.  3.  B.  K. 
in  the  Pleadings  orthe  Releafc.     BilhopolExon  and  Heskct  v.  FrceL 


a 


Ann.  C.  B.  Crane  v.  the  Bi'ihop  of  Norwich. 

12.  F.scommnnkated  Pcrjhis  wcTQ  ixlA  Per  Keblc  to  have  no  Ability  It  is  f:iid  that 
to  prefent  to  a  Church.     VV'entw.  OH".  Execut.  i6.  PcrjJms  Out- 

_  law'd  and 

Ex-communicated  may  prefent  to  their  Chuvches,  and  their  Prcrcnrati(,ns  ihall  fland  good  till  llich  Time 
a,s  they  be  avoided.  VV'atl.  Comp.  Inc.  Svo.  249,  cap.  i;.  cites  Parlon's  Law,  c:ip.  10.  But  acds  a 
■Qiirc  whetlici-  the  Bifhop  may  not  refufe  the  Pielentees  of  fuch  Perfons,  and  fo  luft-r  the  Chuixhes  10 
laple  to  hirall-lf. 

13.  Um  Alien  horn  ptirchafcs  an  Jdvowfon^  and  the  Church  becomes 
void  ajter  Office  j on?! d  that  he  is  an  Alien,  the  King  Jhall  pnj'ent.  VV^atf. 
Conip.  Inc.  Svo.  179.  cap.  11.  cites  Parlon's  Law,  tbl.  7.  cap.  10. 


(Da.)  /;/  zdhat  Cijcs  the  Kf?^g  fliall  prefent. 

i.tJF  3*  l)C  found  in  Ward  ])])  0[fiCC,  fOt  laUtl  IjClO  in  Capite,  autl 

^  that  \)t  i^  Mitt  of  an  Ad\ovviu;i  in  Fee,  ot  tijat  iK  is  ortull  saiTC, 
atili  iifttt  m  ftili  age,  tije  l^mo,'  Mm  uitnlea  to  n  imcrp,  a»  ten- 
ders hi:^  Livery,  anD  idrer  the  Church  voids  belbre  Livery  fucd,  bUt 

after  iiijcrp  is  fura  uiitOoiit  tiny  Default  lUiiBc  after  tljc  CcuBtr,  i'ct 
tije  'aaig  mu  prefent,  for  tW  tije  uw:v  ij  mitljcxtv-m  if  ijc  uie^  l3c= 
fore  liHerp  fiieo,  as  /^^^/^'S  Cafe  is,  pet  tijc  PoiieiHon  ot  his  Lund 

and  of  the  Advovvion  is  not  *  out  of  the  King  till  the  Livery  fued  out. 

€!)is  IS  ti)e  Courft  of  tljc  Court  of  «BartiS» 

2.  Cija'  It  be  aCmittCti,   tOat  if  t!je  incumbent  of  a  common  Perfon  *  s  C.  and 

be  createD  a  "Binjop,  tyat  tlje  Miux.  fijai!  l)troe  tfjc  l^reientiKcnt  to  tije  p  cited  a,  g. 
Cijurcij  ti3r  t!)is  ilntn  by  Ijts  [^reroijati^ic,  pet  it  feems  if  tijc  King  JJ.'^^^  4^9^ 

grants  to  the  Incumbent  before  he  is  created  Bilhop,  a  Diipeniaiion  Re-  g.  '^^i^'  j^ 
tinere  tije  CljUtCl)  UJttO  W  'BlfljOptiCk,  ailtl  after  he  is  created  Bilhop,  Cafe  of  The 
and  dies    Incumbent,   (t  feeiltS  tijC  lAUtO;  fljall  *  UOt  ptCfCUt  tO   IjiS  King  v.  Dr., 

Cuitrcb  by  bis  larevoaatilie,  becaufe  tbe  Cburclj  is  not  botti  bp  ijiS  5"f  '■ — 
iKaluno:  Im  "^310)0?,  in  luljtcb  Cafe  tOc  ]S>rtro!jiiti^e  gi^jcs  tIjc  li^rc-  n  .Th 
rentnuiit  to  tije  i\uw,  tut  bp  Deatlj  of  tlje  Encumbent,  in  loijicb  no  p..rkhuHfs 
p:erogatt\ie  mm  place*  Co.  Cnt»  474-  ^'■^'•'S  Cafe,  rljcrc  plcati>  cn-.-And, 
m  tiyat  m  fuclj  cafe  tl)c  Cburcl)  lioiDcB  bp  Deatlj,  ano  aOmitteD  tijat  ^^5.  ^ 
it  appertains  to  tljc  |.r)atrou  to  prefent  upon  Jjis  Dcatl). 

3.  Jf  tije  King  feiles  an  Advowfon    without  Caule    JijnOranS  tlttlU  The  Cafe 
fUi,  and  after  the  Advow!on  voids,  ailll  he,  who  Right  has,  comes  and  "i"'^'  ''^^'* 
has  Oufter  le  Main  cum  Exitibus,  pct  ije  fljatl  lOfe  tIjC  J^rCfcnl-llient  iJLZZ 

Ipac  ii>ia,  for  notbing  paffcs  b\>  tbe  J^orn  (Exiabu.s)  but  Ivcnts  ano  a;»?  ,« cvrf 
profits  of  a  Ci)inn;,  anti  not  tbe  liJrefcntmcnt ;  flir  it  IS  not  ]3tofit  M/^^^'he,- 
to  tbe  |3atrjn,  but  l-Jre  eminence,  anU  tbe  J^tofit  is  to  tljc  i3arfon,  ™  ^'f 
anb  if ti)c ii)atron ta^rs tijc i.i)rafitsit  is  eimonp,  24 e.  3-  29.  mri%\e:iJ"r 
"Brook  34TUes  21.26.  ^wV^e.  fo,- 

Term  of  Life, 
the  ReterJ/c»  tn  y.N.  anddy'd,  the  King  fei fed  all,  and  rhc  Jdvcwfon  voided,  and  he  \n  Kevcrficn  fued 
to  the  KtHt^,  ,i>id  oht.iined  Oitfiei- le  M/tin  cunt  exitiliui  of  the  Manor,  (and  it  is  laid  there,  that  the  A'iny 
has  Ritbt  in  tlis  Cafe  f.i  fife,  but  not  to  ret.wi  ;)  He  in  Reveijio»  prefented,  and  the  Kiiip-^  hronght  ^are 
fmpedit,  hearing  Date  hejore  the  Oiijfre  le  Afain,  and  the  King  recovered  the  Prclcntment ;  i'oi-  Ly  the 
yoidance  the  Prefent ath/t  'Uias  lefcd  in  the  Kijip-  iy  reafon  of  his  l.xlifil  Seifare  of  tlie  Land  of  his  Tenant, 
Ad  c^uod  &c.  and  the  (hillcr  le  main  cum  exitibus  does  not  give  the  Prefentatijn  ;  ¥ov  tliis  is  :ieiiher  If- 
fues  ror  Profit!,  but  was  a  Thing  veiled  in  the  King,  and  yet  by  Livei-y  of  t!ie  F.and  to  him  uiio  Right 
has.  Fees  and  Advowlon  fhall  pals,  but  not    Prclcntations  verted  before.   Br.  Pi-cfeatatic/i,    nl   iS.    circs 

24  E  ;.  59. Rr.  Prerog-a'ive,  pi.  31.  cites  S.  C    [And  both  Roll  and  Brooke  arc  Right  ;  that  m 

Page  ^9  is  pi.  1.6.  and  the  othjr  in  Page  5^.  is  pi   4S  J 

4-  li' 


320  Prefentation. 


!lnf  .""id'"     -^*  ^^  "^  ^'^'^'■''^  °^ ^^^  Patronage  of  the  Biiliop  voids  after  the  Death 
nor  void        ^^  the  Bilhop,  and    belore  Seifure  of  the  Temporalcies,  pct  tl)Z  t\imX 

during  its    fljall  Ijntic  tije  prercntnicnt  12  e»  3-  €luareaniucDtt  56.  ucr  ^liaciL 


"Where  the       4  Jf  fl  Prebend  voids,  theTemooralitics  being  in  the  Hands  of  the  King 

cinarhvcM  t\)c  iMiiQ  fljiili  Ijii^jc tlje J^refentincitt*  is  e.  3  3 1-  i).  21  e.  3. 5.  mum 

t:^.,u.  ^.'/oi' .^'\  ^-^  £^^.,'^•>  "^^^^^^  ^e.3.22.b.  5  e.2.  siuare 
„.«.;m^.,;..  Jmpcriit  165.  ^^^Duitujcn  m  cafe  of  a  Dicaratjc.  19  €.  2.  £iiinre 

//.„;JiP/  /;.    3PnipCtlIt  178.   ^DjimgCU  of  a  Vicarage,  tljOUgO  taiQ  tijat  it  loaS  g)Ut 

A;;;?,  and        fltUal*  *^ 

the  A/w?  rf/crf, 

and  they  came  to  the  Aftcr-Kin»,   the  Succe^or  Kinir pal!  not  prefent  by  reafon  of  the  Statute  25  E  2 
Pro  Clero,  cap.  i.  [which  fee  Raft.  wz-^That  the  Khi,^  }lhu,l,i  mt  prefent  m  another  i  KhU   of  my  A-tioiL 
ance  but  in  his  own  7ime.   Br.  Prefentation,  pi.  13.  cites  1 1  H.  4.  ;. 

oft 
f  th 

3-  €luare'3nipcDtt  5^6.  pcr'^!)icir» 

bcinf;  in  the 

H.ind^of  the  Ktne^  by  reafon  of  the  Death  of  R.  late  Bifhop ;  For  if  the  Teniporalties  were  in   the 

King's  Hand.s  by  Death  of  any  other,  or  by  other  Means,  yet  tiic  King  flull  prefcut.  Br.  Quare  Impe 

dit,  pi.  94;   cites    24  E.   5    z6 So   if  an  Advowfon    be  void  by   6  Months,  at  which  Tin^e  the 

.King  IS  leifcd  of  the  Temporaltics  of  the  Biflioprick,  the  King  fliall  prefent  to  this  Advowfon  as  the 
Bifliop  nionld  do.  F.  N  B.  ^4  (C- Where  it  is  awarded,  that  the  Tempoi-altiesof a  Biffiop  be  (Hied 
intothc  Kni|;'s  Hands,  the  King  fliall  take  Conufanceoftiiem,  and  fliall  prefent  to  an  Advowfon  with- 
out Office  ;  t  or  the  Temporaltics  of  a  Bifhop  are  always  of  Record  in  the  Exchequer.  Br.  Oificedc- 
vaiu  Sec.  pi.  17.  cites  P'it/.li   tit.  Scire  f.icias  115.    21  £.  5.  53. 

SnS"^        ^-  ^°  ^^^'-^^  ^^nmt  of  the  King  dies,  and  (iftcr,  before  Seiiure  of  his 

have  Pre-    ^^'' '"  ^^''ir^'  ^^^'^"''""^  '  "'^^'^  ^^^  ^-^I'lff  Hj^il  Oa'uc  tiji.s  l^rcfcnt^ 

fentment  mCltt    12  e.  3-    CllUlrC  JUlpCHU;  j6. 

to  theAdvrKH- 

/o>t  i?!Gnfi  by  the  Ifitrii  of  an  Infant  who  is  in  If^arA  for  other  Lands  ;  per  Brian.  But  all  the  King's 
5crieants  contra  ;  for,  becaufe  the  King  has  the  Body,  therefore  he  fliall  have  the  Prefctitations  Et 
Prelcntation,  pi.  42.  cites  5  H.  7.  5.  '       ' 

7-  3!f  tlje  Tenant  of  the  King  has  Title  to  prefent  tO  au  ^DlSOlDfOn 
iUljfClj  IJj  void  by  jlx  Months,  ailD  aftCt  ti)Z  Ccnant  of  X\}Z  t^lllfj  dies 
belore  the  Bilhop  prelents  by  Lapie,  his  Heir  UHtJJUl  3ge  aUO  in  vV^ard 

Of  toe  Etnn;.   mm  tije  OBifljcp  njall  not  prefent  bp  lapfc.  Hut  tftc 
mm  njall  pi-crent*  jrtt?.  ii^Jat*  35.  a.  anti  tijcrc  uoticijes  is  e.  3. 

St'bv  ^r  ^-  '^^  "^^'^^^  ^"^^  ^^'""^  Coparceners  Of  an  aOilOlUfOn,  tilljCrCOf  one  is 
King;  the  '^^wm  Sp,  auD  in  V\^ird  to  the  King,  an5  the  other  two  of  full  Age 
Tenant  of  the  fuc  Liverv  with  Partition,  fa\  ing  the  Prerogative  Of  tljC  Kinit,  tO  pre"- 

Kino:  had  If-  fcnttotl)c  Cilioitiances  mmnij  tbc  99moritp  of  tlje  ii^aro,  anijaf= 

D-l!^L      ^^^  ^^'^  Church  voids  during  the  Minority,  tlje  ^m  Ajall  pCCfent*    31 

Md,^ ^-  3  auare  Jmuctiit  i.  mm^. 

the  Tene-  9-  Ji  tlJClT  dXZ  three  Coparceners  Of  an  iUDllOluran,  UJljCCCOf  one  is 

,ncntscame     in  W  ard  to  the  King,  who  grants  her  over  tO  ailOtijei'  with  j(^nircl)tfi= 

iv'£  pS.  ^^^^  '^^'^  Advowihns,  ann  after  t&e  otljer  tiua  being  of  fttll  age  fue 

Pat^ve,  and  ^ivery  Of  tlje  l^mff  With  Partition  to  prelent  by  Turn,  fcilicet,  tIjC 
Partition  ivas  elQeft  fitff,  tllC  2t!.  in  t\)Z  2tJ*  ^l^UlCe,  anH  the  W^ird  Int,  fa\  ing  the 
>rade  in        Prerogative  Of  tlie  l^UltJ  fOt  CaUfe  Of  tfjC  l^UruartP   Of  tfF  JlDir!! 

S"Xfs^./-^^'^'^^^^"f  ^^J"y,a  3^ice  n  cccicfia  ijacare  continent  tiurtmjk 
^o^fon  aiut-  95!nciriti),  anti  after  tiic  Ctnircl)  uoiDS  nurnig  tlje  ^inoritP  of  tlje 
ted  to  the, V,  usarn,  tnc  Uing  fljall  prefent,  becauft  tljc  jaan-ition  Mm  nfrcrtJic 
-u^ho  tookB...  (j^vant  of  tlje  aaarBfljip  o\)er  (tc>  anD  fo  tlje  preroijatiuc  remains  in 
mteZiidi^  fiimff.  31  e*  3  €iuare 3!mperiit  i.  aDjuDtjen, 

the  IJfue^^Uhin  Ji.e  andinirard  oj  tf^e  K,nfr,  and   the  Prebend  voided,  and  the   Kinz  prcfented,  the  Z).fo.- 
dantfa,d,^..taurth,slhe  three  D^.^hters  m^de   Partition  to  prefent  by  ^um,   and  that  the  firfU^a^i  her 
Turn    and  then  the  Secnd,    aMc  third  took  iU   Defendant  to  Baron,  and  had  /Jjue,  and  die      and' is 
-^^cdnnce  noM,^s  toh,n,as  tenant   by  the  Curtefy,   a.d  ihe-z^.ed  the  Ccnpofltion,  and  becaufe    by  T  fir 
Partition  tn  Chancery  the  King  was  arcerta.a<xl  of  his  Tenant  of  Record    and  tUs  ne-u'  p/r^iS/^i 
Ltcenee  ojthe  K,„p  ,s  an  .-lUe^ation  ,n  Lav^  ^Hh.ut  Luence,  therefore  Jadgmcnc  pro  Re-^e     For  it  wa 
agreed,  that  thor,gh  Paniru.n  be  made  between  Parceners,  they  are  >et   in   by   d.e  common   An-efto 
and   m:>y    vouch  a,s   Heir,   and   every  one   f>.all   have    Advanti^e  as    Heir,  yet   bv   tlTcPartitbn  Tn 
Chancery,   the  one  w.s  lole    fenanttto  theKing]  of  the  Advowfon,  and   by   the  la'l  Parr  tion  to  p-.- 
lentbyT.u-n.llare   Perants  thereof,  and  Writ  of  Right   of   Advowfon   fli  11  be   brou'   t  a^afc  f^a'l 
and   before   agami     everv  one  alone,    and    ;   fo    the   King   was   a  Stranger   to  hi.  ^.;anc°S     the 
Ccmpof^tion  whK-h   could  not    be  without   LLcr.ce.]     Qu2d  Nota ;    and  therefore   the  Ki^  rc'o! 

vercd 


Prefentation.  c^^n 


vcrcd.     Br.  (>uare  Impedit,  pi-  7  5- cites   21  E,  5.    50,51. J/^d  it  was  faid,  that  wlici-c  the  A?>^ 

b.is  Jdioiifon  in  Common  ivith  others,  as  hy  C.tiife  of  Nonaffe  of  an  htfant,  who  has  'title  to  frrfent  hy  Tmr.  or 
otlicrwiii.-,  tliat  the-  King  by  Wn  Piero^ititive  ftiall  have  the  Pfcfciitmcni  at  cvci-y  Void;i:ice  fo  long  as 
any  Parcel  of  the  Advowlbii  remains  in  his  Hands.  Brooke  lays,  ^i£re  inde  ;  For  this  is  a  Partition  ; 
But  if  m  Partition  ajj,thtn  the  Kin^  by  the  Intcreft  of  the  oic   Coparcener  fhall  have  the  whole  Pre- 

(entation.     Ibid. Br.  Alienation,  pi.  y.citesS.  C Br.   Prerogative,  pi.  ii.  cites  S.  G. 

[  ♦  Br.  i.',  (,Et  iflint  Eftranger  del  Key  de  Ion  Tenant)  but  the  Year  Book  is  as  tranflatcd  ] 

10.  The  Bifnop  of  Elyfaid  to  me,  that  he  had  feen  a.  Prcfcfitatiou  /«  f  ^e  Ever  fince 
time  of  Kar'  E.  3.  made  by  the  faid  King,  whereby  he  prelenced  to  a  Be-  .^u'^'-^'fu^^^ 
netice  Pro  ilia  Vice  which  was  of  another's  Patronage,  by  thefe  Words,  g,."!-!'^,.'    ^ 
R.nme  Prerogative  fitx'y  which  Benefice  voided  by  reafoii  that  */h' A'/>/^  this  Pre'roga- 
had  made  the  Inaiuibait  thereof  a  iJ///;o/),  who  was  coni'ec rated.    So  that  tive  has  be:n 
when  Benehccs  become  void  by  making  of  an  Incumbent  a  Billiop,  the '^,"J"J,'^.'^  '^^ 
King  Ihall  prefent  to  all  his  firft  Benetices  Pro  ilia  Vice,  whofoever  is [,f  EnJ'/fnj 
Patron  of  it  ;  Quod  Nota.  Br.  Prefentation,  pi.  61.  cites  5  M.  i.  and  tlu-re  * 

are  no  Pre- 
cedents that  the  Patron  has  prefcnted  upon  the    Promotion  of  his  Incumbent;  Per  Cur    4  Mod.  210. 
in  deliverinj;  the   Judgment  of  the  Court  in  the  Calc  of  the  Attorney  General  v.  Bifhop  of  London, 
Dr.  Lancafter,  and  Dr.  Birch 


(E.  a)  In  what  Cafes  the  King  fhall  prefent,  nxihere  Chattel  i 

'vejls, 

i.Tjf  t!)C  Tenant  of  the  King  has  an  Advowfbn  which  voids,  nutl 
1  ilfitr  dies  his  Heir  in  Ward  to   the   King,  tIjC  i^mo;  fljaU  i);VOC 

tijc  ]3rcfcntnicnt,  an'o  not  tfjc  Cmutor  of  ttjt  jfntljer*  i«  e:%  i.^i. 
12  €.  V  iCiuavc  3inipcDit  159-  Cljoiigij  tlje  speic  be  of  fiiU  age* 

2.  Ci)C  Law  UJOllla  tie  tljefame  tijlilujO  ^uple  had  mcurred  to  the 
Ordinary  in  time  of  the  Father,  It  tlJC  £)l't!ilWl'P  ijilli  not  collated  be- 
loie  his  Death.   18  (£4.3.  21. 

3.  3f  ttjc  Cciiant  of  tijc  l^ingfjiid  nu  anisauiroii  luljiclj  ^oilss,  nnti  r---  P'- 

the  Tenant  pivlen'ts,  and  his  Clerk  is  admitted  and    inltituted,  lUlB  be-  ientation,  ^ 
lore  Induction  tl)Cl3iltt0ll  dies,  and  the  Advovvibn  comes  by  Wardlhip  i'g  ^  ,'^"'^' 
ro  the  King,  jje  M  pVCfCilt;  1 OV  t!}C  CfjUlT?)  IS  UGt  tUll  ngatlUt  s.P,  burthat 

l)iin  before  ^'itoumouv  38  €.  3-  9-  b})  Cijorpc*  ^i€.^.  34-  ^^  ^^i^  amonf^com- 

tObCarsmtlli'CrimtljC^oOf  (£»3-  ...  ,  mon  perrons 

4.  Jf  a  Cliurch  of  the  Patronage  ot    a  Billion  voids  in  Time  ot  the  |^^jre"  "^"^^ 

Biihop,  iinn  itfcev  t\)Z  Biihop  dies^tOc  l^iiio;  fijaiS  Ijaue  tljc  }^i:cfcat= 
nicnt  bp  rcafon  of  tbe  ilbEinparalncy,  auD  not  ijis^  Jgccciicac.  21  e2» 

g.  6.  ll,    50  <£♦   3-   26.    9i3,  6.  16.  b»    29(i;»3.44.     24^£»  3.  30.  !^0= 

jutigcOv 

5.  %'i  a  Cijurcl)  Of  t'oc  patronap  of  a  ISx^'m,  aiAot,  or  Ii)noc 

iJOlDS,  anOtijC  Biihop,  ^lllbOt,   or  f^nOl*  prclencs,  and  ftia'i:  dies    be- 

lore  inititution,  tijc  t\mij  fliali  t)al!e  tijis  prjcfcntimnt  iw  lji<5  \Pkk<}^ 

ptSVfC.  llbCr  parlUTinCUtOrtim,  21  e*  i.  i^i)t  \BXi^mi  Bermimdfefs 

Cafe,  aQjuBijco  m  ii)arljanicnt*  24^*3-  30-  i^tijUUsjen. 

6.  So  If  tlje  'BlfijOp,   ailbOt,  Orl^riOrdies   atter  Inltitution  of  t!)C  '^afterC//.,- 
CtCik,  and  before  Induction,  ti)C  UUV.X   ftall  fja'OC  tljtS  l^rcfClltniCilt  ^''"/"f/'''- 

bp  1)15  l^rcroaatiuc*  n  l).  4-  9-  bp  all  tlje  juUiccs,  Jfit?.  ii^at,  3+  dieVbefcr''^ 
Jl^,  36  h>  3«^^3-4-  ipobart'iSReport0  2o8.  induction, 

by  which 
the  Tcniporalties  come  to  the  King.    Br.  Prefentation,  pi.   i5.titesi!H.  4.  7.  per  Cur 

7.  contra  libcr  parU  21  €.  4-  24  €♦  3-  3°-  ^tJiiiittrxi  per  ct?^ 
riai?.,  faving,  Deiuim  Ji^uUiun  [tft]  if  2m"titution  be  not  uinuc  m 
1)15  iifc." 

8*  3f  tI}C  King  has  an  Advowfon  by  Caufe  oi  a  Wardfiiip,  and  grants 
it  to  anotija*  dunng  the  Minority  Of  tIjC  l^Darti,  fiUTl  ilftcr  tljC  Church 

4  M  ■         voids 


're- 


32  2  Prefentation. 

Aoids,  and  continues  void  till  the  full  Ai^e  Of  t\)Z  WHXU^  bP  lUftfClj  tIjC 

Cftatc  of  t()c  Q5rantec  ig  tJCtcniiincn,  m  tijc  iSrantec  Rjaii  fjauc  tijc 
liJrcfentiiient,  aiiO  not  tlje  i^miy.   Contra  29  c»  3*  8»  i)»  aoiinttcD 

An  Avi)id-  9^  Jif  Lapfe  incurrs  to  the  Ordinary,  and  before  the  6  Months  paft 
ance  belong.  jl^„Qrainarv  is  tranflated  or  dies,  it  f'tUlO  tljat  tl)Z  IMlVC;  lT)aU  IjaDC 

fllL  wiio "  tl)c  l.^rcfcutiHcnt,  anti  not  tljc  ©rntnarp  oc  Ijis  et:c£iitar0,  or  tDe 
died,  bv  viTniaroian  of  tljc  €>pintiialticc(»  iP.  40  eu  C6*  Ditbitatur*  iDotiart's 
V  hich  ti.e    Heport0  280.  m  cafe  of  DeatO* 

rciiiporal- 

tiescame  into  the  Hands  of  tlic  King,  belongs  now  to  the  Kiag.     Br.Quare  Impedit.  pi.  42.  cites  50 

E.  5    26 Br.  Prefentation,  pi.  10.  cites  S.  C]. 

SccCC)  pl.4.  10.  Jf  a  BiHiop  has  Title  to  prefent  tO  a  [STebCnH,  and  prefents  })i0 
ClCrh,  lUljO  is  inltitticed  and  indufted  in  the  Morning,  autl  after  Din- 
ner the  iauie  Day  the  Bifhop  dies,   lip  UlIjICl)  tljC  CcmpOr-SltlCg  COatE 

ihouid  be' ,,  into  tIjc  fpantiS  of  tijc  t^inn:,  pet  tijc  mm  fijail  not  tjalse  tl)i0  \M 
£  ,  ,  '''^  fcntmcnt,   *  43  C*  3*  3* 


(F  a)     Prefentment  to  the  Church.      //7;'o  fhall  prefent. 

I*  /^  if  COmntOn  EiOlJt  tlje  J^atronitgc  of  tljCDeanrv  of  the  Arch- 

V^  biihoprick  appertains  to  tDc  iatcijuifljop,  an5  ijc  fijall  prefent 
to  toe  auoioance*    17  <£*  3«  40. 13> 

2.  But  by  Compoiuion  it  ttuii'  hc  €icitt\jc  b))  tIjc  Cljaptct,  aiiU  vet 
,  tOe  patronage  fljalt  remain  in  tlje  arcljbtajop*    1 7  e.  3*  40.  b. 

3-  Cljc  ]3atronage  of  a  Prebend  appertains  to  tljc  IBifljop,  atiH  fjc 
fljail  prefent  t!)creto»    17^.  3*40.  b. 

If  a  Vicarage  4,  Jjf  tlje  Parfon  ought  to  prefent  to  the  Vicarage,  pet  if  the  Vicar- 
and''befo,'f '  ^^^  becomes  void  during  the  Vacancy  of  the  Parfonage,  tfje  l^attOtt  Of 

the  Parfon   tl)e  patfonagc  fljall  prefeiit,  *  19  €.2.  Ciiiarc  JimpeUit^ivs. 

prelent.s  he  is 

made  a  Billiop  &c.  yet  he  fliall  prefent  to  this  Vicarage  becaufe  it  was  a  Chattle  veiled.  F.  N.  B.  54.  (N) 
. ♦  Watf,  Comp.  Inc  Syo.  24S.  cap.  19.  cites  S  C.  And  Dr.  Watfon  conceives,  that  if  the  Par- 
fonage be  filled  before  the  Vicarage,  yet  the  Right  of  prefenting  to  the  Vicarage  remains  in  the  Patron 
of  the  Parfonage.     Qusre. 

5.  If  the  King  grants  to  an  Abbot  and  his  Succeflbrs,  that  the  Monks 
Hull  have  the  Teniporalties  during  the  Vacation  ;  now  if  the  Advowfon 
happen  void  during  the  Vacation,  the  Monks  Ihall  prefent  to  the  fame 
F.  N.  B.  33.  (U)  cites  Mich.  30  E.  3. 

See  Recu-         6.  By  the  Statute  3  Jac.  i.  cap.  5.  a  Popi/Jj  Reciifant  Cotivi^i  is  difibled 

f'Jnt.  to  prefent  &c. 


(F.  a.   2)     Who  fhall  prefent  m  refpeB  of  Eft  ate. 

S.  P.  If  he    I .  TXT  H  E  R.  E  a  Man  has  a  Ward^  and  Advowfon  voids,  and  the  Heif 

whhi"n^the  ^  '     '^'^"'"  ^°^"^^  ^■^'^  ^^^'"''^  Pnfintation^  yec  the  Guardian  ihall  have 

6  Months.     ^^^  Prefeatation.     Br.  Prefentation,  pi.  i8.  cites  t  18  E.  3.  36. 

Br.  Quare 

Impedit.  pi.  6; .  cites  58  E.  5.  ;  5.  S.  C  ~  ^0  of  'Tenant  pur  J/jter  t/-',  or  *  'fermor,  where  their  Intereft 

determines  after  VoiJance  and  before  Prefentation.   Ibid.     Per  Finch. Br.  Ouare  Impedit.  pi  67. 

cites  S.  C.  and  P— ♦S.  P.  Br.  Prel^ntation  pi.  22.  cites  it  as  faid  elfewherc— fit  lhouldbe(58)E  5.5«J. 

Where  a  2.  'Where  a  "hl-xn  grants  Proxmam  Pr^efentaticnem ^  and  dies,  his  Heir 

thenex^t'prc-  ^""S  "'  ^^'^"'^  "/'  ^^■'^  K^"S->  ^nd  the  Chnrcb  vo-ds,  the  King  jliail  ha\e  the 

Prefcutation. 


Prefentation.  cj  2  c^ 


Prefentation,  and    not  the  Grantee  ,  Per  "Wilby.    Brooke  fays,  Quaere  fcntation  of 
indc,  becauie  it  Teems  to  be  contrary  to  Law.     Bv.  Prelentation.  pi.  lO.  ^P  Advow- 

c-  c.  ^  (on,  it  the 

atcs  21  £.  3.  38.  /;,.',      . 

and  xhcChurcb  zoidj,  the  Grantee  mall  have  the  Prefcntation,  and  not  the  Lord  in  Chivajiy,  of  whom 
tlie  Land  and  Advowibn  is  held,  by  reafon  of  the  Cuftody  of  the  Heir  within  Age  ;  for  the  Lord  fhall 
not  ouft  the  Grantee,  Teimor,  nor  !bch  like.  Br.Qviarc  Impcdit.  pi.  li!.  cites  j  H.  7,  56.  bv  the  bcii 
Opinion. 

3.  It  is  good  Title  for  the  Lord  to  prefcnt  iL-berc  the  Heir  enters  for 
Condition  dciCeadai^  he  being  ivithin  /Ige  ;  for  he  is  in  as  1-fcir,  and  ihall 
be  in  Ward  ;  and  the  Lord  Ihall  prelcnt.  Admitted  without  Argument. 
Br.  Quare  Impedit.  pi.  io6.  cites  39  E.  3.  37. 

4.  in  Quare  Impedit,  if  Baron  is  feifcd  of  an  Jdvowfon  in  Jure  Usoris,  S.P.  Per 
as  in  DoiCer,  and  the  Church  voids^  the  Feme  dies  before  Dijhirhance^  and  Fintii.  Br, 
after  the  Euron  is  dillurb'd,  he  Dial  I  have  this  Preferitatioii.     Per  Thirn^  ''i^'^^'^ntation. 
quod  non  Negatur.     Br!  Prefcntation.  pi.  15.  cites  54  H.  4.  12.  i^s  E.  "'-k 

—  s.P.  Co. 

Litt.  1 20 S.  P.  That  it  the  Feme  dies  without  Itrue,  fo  that  the  Baron  i.s  not  intitled  to  be  Tenant 

by  the  Courtcfy,  yet  he  fhall  have  the  Prefentation.  Per  Newton.  Br.  I^rcfentation.  pi.  21.  cites  21  H. 
6.  56,  — V\  att".  Comp.  inc.  b'vo.  121.  cap.  9.  i'ays,  that  tho'  the  Wife  never  did  prefer.t  to  the  Church, 
but  died  before  it  voided  ;  the  Right  of  prefeniint;  during  the  Husband's  Life  is  lodged  in  him  as  Tenant 
by  the  Curtei'y,  tho'  his  Wife  had  but  a  Seifin  in  Law,  becauie  he  could  by  no  injuftry  attain  to  any 
other  Scifin,  cites  i  Inlt.  29.  a. 

5.  Where  tim  Churches  are  united^  there  each  Patron  in  his  Turn  ftall 
have  Quare  Impedit,  De  medietate  Advocatioms ;  for  the  Advowfon  is  fe- 
ver'd  in  Right  and  in  Polielfion  there  ;  But  contra  bct'ineen  Coparceners^ 
Tenants  in  Common,  and  the  like ;  for  there  the  Advowfon  is  not  fe- 
vered, and  thereiore  the  Writ  ihall  be  there  De  Advocations  Medietatis. 
Br.  Qiiare  Impedit.  pi.  107.  cites  14  H.  6.  15. 

6.  ii  a  Parlbn  be  outlaw' d  in  W^rit  of  TrcfpaCs,  the  Charch  being  void^ 
the  King  fhall  have  the  Prefentation;  which  is  adjudg'd  Anno  22.  inter 
Alf.     Br.  Prefentation.  pi.  22.  cites  21  H  6.  $6.     Per  Newton. 

7.  In  Qiiare  Impedit  the  Cafe  was.  That  a  Prior  feifed  cf  3  Acres  and 
Advowfon  Appendant^  and  the  Majler  of  the  College  feij  ed  cf  2  Chambers,, 
he  exchanged  by  Indenture^  and  the  Prior  ent^rd  into  the  Chambers  ;  but 
the  Majhr  died,,  and  did  not  enter  into  tlie  3  Acres,  and  his  Succejjor  brought 
,^uare  Impedit  at  the  Avoidance,  And  Per  Danby  clearly,  a  IVIan  cannot 
prefent  to  the  Advowfon  Appendant,  if  he  has  not  the  Land  to  w  hich 
&c.  But  Per  Moyle,  the  Seilin  Tempore  Vacationis  is  not  tra\eriable. 
And  {o  Littleton  and  Moyle  againlt  Danby  and  Needham  &c.  Br.  Pre- 
fentation. pi.  30.  cites  9  E.  4.  38. 

8.  In  Quare  Impedit  it  was  agreed,  That  if  a  Man  be  feifed  of  an  Ad-  Contra.  5 
voivfon  in  fee,  and  the  Church  voids,  and  he  dies,,  the  Executor  Ihall  have  Lev^_4"  pef 
the  Prefentation  and   not  the  Heir.    Br.  Prefentation  pi.  34.  cites  *  21.  pg,.  j"/'- 
11.  7-  22.  done  in  one 

Inftant,  the 
Defcent  to  the  Heir,  and  the  Falling  of  the  Avoidance  to  the  Executor  ;  And  where  ^^  7:t/es  con 
cur  in  an  Infant  tic  mo(l  ancient  jhall  be  freferred.  As  in  Cafe  of  Jointenants,  the  one  devife'i  liis  Part 
the  Title  of  the  Devifce,  andof  the  Survivor  fall  in  one  Inffant,  the  Title    of  the  Survivor  being   the 

moft  ancient  Right  fhall  be  preferred.    Mich.  33  Car.  2,  C.  B.  Holt  v.  the  Bifiiop  of  Winton. - 

♦  itiliould  be  21  H.  7.  21. 

9.  A  Manor,,  to  which  an  Advowfon  was  appendant  came  to  ^lecn  Maiy 
hyiv\  Attainder  of  the  Patron  the  Earl  oi  Northampton,  who  had  only 
an  Eltate  for  L.ile  in  it,  and  jhe  made  a  Lcafe  thereof  to  R.  &  W.  for 
forty  Years,  if  the  Earl  fhould  fo  long  li\'e.  The  Church  became  voidy 
and  one  Twiniko,  "^vho  claimed  not  under  the  Leafe  to  R.  &  ^V^  prcfented 
M.  who  was  inllituted  and  inducted,  all  which  was  pleaded,  but  the 
Manor  being  fettled  in  Remainder  in  Fee  to  H.  8.  J^ueen  Kliz.  as  Heir  to 
hm,  prefented  upon  his  Avoidance ;  But  adjudged  againlt  her,  becauie 
there  is  not  a  bare  Ufurpation  pletided  againlt  the  Quccu,  but  alio  an  E- 

llate. 


324-  Prefcntation. 


Itate,  viz..  a.  Lcufc  for  Years  in  the  fuid  Advovvfon  derived  Irom  ().  Mary 
and  that  the  Avoidance,  whereupon  theA£tion  is  brought  (alleth  wich'ia 
the  laid  Term,  fo  as  the  Qlieen,  who  is  Plaintitt',  is  encountered  with  the 
Le:jfe  of  her  Ancellor,  againll  which  ll;e  cannot  make  Tide  to  piefent 
A\  ithout  fpccial  Matter  i  Wherefore  judgment  was  given  againlt  the 
Queen.  Lc.  44.  pi.  58.  Mich.  28  &  zp'Eliz.    TheQueen  v.  Middleton. 

10.  A  AfcUior^  to  which  an  Advovvfon  is  appendant,  is  extt/iikd  on  a 
Statute  Merchant.  Per  Cur.  if  it  become  void  during  the  Conufee's  Klhue 
the  Cc;;///e'e  may  prefent.  Owen.  49.  Mich.  32&:33Eliz,.  Arundel  v. 
1  he  Bilhop  of  Glouceller. 

•  i;.  If  a  A/rf//,  I'eifcd  of  aiijidvo-jofon,  takes  a  WifCj  and  rt'/f.f,  the  Heir 
J}:aU  ha\'e  fd.'o  Freftnt}ne>it5,  and  the  Uije  the  third ;  yea,  tho'  the  Htisbnnd 
jH  his  Life-Time  had  granted  away  the  third  Turn.  Watf  Comp.  Inc.  8vo, 
122.  cap.  9.  cites  2  And.  173.  VV  illiams  v.  the  Bifhop  of  Lincoln  and 
Baililis  of  Bedford  &  D.  35.  b.  28.  H.  8.    - 

12.  li  ■i.VilUiii  piirchafes  an  Jdvceujon  his  Lord  pall  prejent ;  Becaufe 
the  Lord  upon  fuch  Purchaie  of  the  "Villein  may  claim  the  Inheritance  of 
the  Advovvlbn,  and  upon  fuch  Claim  the  Interell  thereof  Ihall  be  veiled 
in  him,  and  then  the  Lord  in  his  own  Right  ihall  prefent  to  an  Avoi- 
dance. W'atf  Comp,  Inc.  8vo.  179.  cap.  11.  cites  Parlon's  Law,  cap.  10. 
lol.  75. 


(F.  a.  3)  Who  fhall  prefent  in  refpe61:  of  Eftate  Mortgngor 

O     O 

S.  p.  admit-  I-  T3  Mortgaged  X.0  k.  the  Maiior  of  C.  to  which  an  Advowfon  h  ap- 
ted  by  Lord  jj .  ;)f;/c/^f«?  A.  brings  Bill  to  Foreclofe.  The  Church  voids.  Mortga- 
Chancellor  go^^,b)  moved  for  Injunftion  to  Hay  Proceedings  in  a  Quare  Impedit 
b^'cSe""^  brought  by  A.  Per  Cur.  Tho'  B.  has  No  Bill,  yetteing  ready,  and  otfer- 
Ccunfel  cf  '"g  to  pay  the  Principal,  Interell  and  Colts,  if  A.  will  not  accept  his 
both  Sides,  Money,  Interell  fhall  ceafe,  and  an  h/jii/itJiou  fhall  be  granted  as  to  the 
2V\ms's  ,G)itare  Impedtt ;  For  A.  can  make  no  Profit  by  prefenting,  nor  Account 
Rep  404.  tor  any  Value  in  refpeft  thereof  to  link  his  Debt,  and  A.  therefore  in 
cited  the  that  Cafe,  until  a  Foreclofure,  is  but  in  Nature  ot  a  Trultee  for  B.  2 
Cafe  of         Vern.  R.  401.  Mich.  1700.  Amhurfl  v.  Dawling. 

Wood  and 

Henchman  v.  Sir  Tho.  Stanley and  Serjeant  Selby's  Cafe — 9  Mod.  2.  S.  P.  admitted  Arg.  PafcE. 

1721.  in  the  Cafe  of  Hungertord  v.  Clay. Eitt  where  a  Mortgage  <ii<,u  of  an  Advowfon  only  tuithont 

77;ore,  wliich  the  Moitgaj;or  was  polTcHed  for  a  Term  of  99  Years,  and  in  the  Mortgage  was  .iCovt- 
iiiiT.t  that  on  every  Avoidance  the  Mortgagee  jlieuld  prefent  it  was  infifted  that  this  differed  from  a  Mort- 
v:\sc  of  an  Advowtbn  appendant,  tho'  even  in  that  Cafe  fuch  Covenant  would  be  good  ;  and  the  Court 
icemed  to  incline  tliereto,  tho' as  to  that  it  gave  no  Opinion,  there  being  another  Point  on  which  it 
decreed  a  Difmiffion.  2  Wms's  Rep  404.  Hill.  1726.  Gardiner  v.  Griffith. Upon  the  Plaintitl'.<  Pe- 
tition Lx)rd  i)ommers  ordered  the  Defendant  to  revoke  his  Prelcntation,  and  to  prefent  fuch  Parfb-i  as  the 
Mortgagor,  or  his  I'endee  (For  he  had  contracted  to  fell)  fhould  appoint.  Ch.  Prec.  7  [.  Jory  v.  Cox. 

It  was  ordered  that  Mortgigce  permit  Mortgagor  to  bring  ^tare  Impedit  in   Mortgagees  Name.    5  Lev, 

115.  Stanton  v.  Barker  cited   in  Walker   and  Hammerfly's  Cafe. 2  Vern.  450.  S.  P.    thoug!i_  the 

JUrlgagee  leai  tn  Pojfefficn    Attorney -General  v.  H#sketh  &  al. 

AiTi^'nec  of  the  King's  Title  by  rcMon  of  Simony  in  the  Mortiragor  brou'^ht  a  Qiarc  Impedit,  and  thea 
a  Bill  in  Chancery  that  the  Mortgage  may  not  be  fet  up  nor  given  in  Evidence  againlt  him  at  Law  anrl 
Lord  Wright  decreed  the  fame.  Ch.  Prec.  214,  Attorney  General  for  Hindley  v.  Sudall.  Hctkith  &  ai. 

2.  A  Mortgagee  of  an  Advowon  held  for  Years,  without  any  other 
Thing  joined  with  it  in  the  Mortgage,  by  virtue  of  an  Agreement  ex- 
prellLd  in  the  Mortgage  Deed  tor  that  Purpofe  prefenced  a  Clerk 
on  an  Avoidance ;  The  Mortgagor  brought  a  Bill  in  Chancery  feven 
Months  after  the  I  nff  it  lit  ion  to  compel  the  Clerk  to  rejign  ;  But  Lord  C, 
King  difmilfed  the  Bill,  declaring,  That  as  a  Quare  Iiiipedit  was  con- 
fined, to  fix  Months  alter  the  lalt  Incumbent's  Death,    fo   ought  a  Biil 

to 


.  Prefentation  22  c, 


tobc  limited  to  the  lame  Time;  But  had  a  Quare  Impedit  been  brought 
M  ithin  the  6  Months,  and  the  Bill  been  prokrred  atter  the  6  Months, 
the  Court  might,  on  a  proper  Cafe,  give  Direftions  in  Aid  of  the  Quare 
Inipcdit,  that  the  Mortgage  fhould  not  given  in  Evidence,  s  Wins's  Kep. 
404.  Hill  726.  Gardiner  v.  Griffith. 

3.  It  feems.  That  li' one,  who  [■a  fei  fed  in  Fee  of  an  Aivorjfoft,  mortgai^es 
the  fame  for  a  Sum  of  Money,  and  the  Money  not  being  paid,  the  Gmut 
l;ecoiiies  Ahfolaic,  and  then  the  Chnrch  Viids  ^  ;y' during  the  Avoidajice 
the  Money  being  paid,  and  theAdvowfon  reconvey'd,  the  iVJortgagor 
cets  the  Clerk  injlitiited  to  the  void  Church,  the  Mon?agee  is  laithoiit  all 
Rmcd)')  tho'the  void  Turn  was  in  him,  and  could  not  pafsbyhis  Kccon- 
veyanceof  the  Advowfon.  Wats.Comp.  Inc.  8vo.  437.  cap.  22. 


(G.a)  Prefentment  to  the  Church.  V>y  Coparccfiers yTe?2nnts  ht 
Common  (y^Johiknants.  fFho  fliall  ^iQ,{zi\t  of  CQmmo?i Right . 

I.  r\f  Common  Eigljt,  if  tllCU  cunt  ngrCC  che  Eldelt  fhall  prefentat  i/b'Ar?' 

\J  the  lit  Voidance,  aiiH  tljc  2D  Coparccnec  at  tljc  20.  nuQ  fa  on  irrwaikJi's 

every  one  in  Order.  17  C»  3,  30.  37*  U.  i^OUHllJCl!.  *2i,  C3,  37,  b^  38.  ^-^^e;  Bat 
CQ.  13- €.  I.  03.  Hot.  3>    12.  jp.7.  i^ClU   U   D.   35*  JX  8,  ^s*   _yj^ystl,«  tins 
<^^,  lltt.  1 1 6.  (t)  1 86.  tl.  CD  Ij^^ea  of  her 
Perfon  only,  but  as  it  is  annexed  to  hei-  Eft.ite  ;  For  as  it  is  agreed  5  H.  5.  10.  her  Biron,   who  is  Te- 
nant by  theCurtefy  fhall  have  it. *  Br.  Pieientation,  pi    19.  cites  S.  C.   S.  P.  Br  Prefentation, 

pi.  55.  cites  K  N.  B.  34. S.  P.  ibid.  pi.  jy.   cites  Dodt.  8c  Stud.  lib.  i.  cap.  26 S.  P.   Br.  Quare 

Impedif.  pi.  la. 

2.  Alfothis  Privilege  gil)CntO  tfjC  ClUeff  ^lall  go  to  her  *  Ilfue  andQu^t-e  as  to 
t  allignee.  CO.  Litt.  ^66.  b.  (f)  1 86.  b.  (t)  ^^^  -V^^^"'' 

'         '^  ^   '  ^  '  •  before  .my 

Prefeut.uionhy  the  Eldeft.  Hill.  iS.H.  T.Kell.  49    ■ —  ♦  Sec  S.  P.  admitted  Br.  Piefcntatioii,   pi    ;?. 

cites  58,  H  6 .  9. Theie  is  a  Diverfity  between  the  Cafe  of  a  Partition  by  Deed  by  Acl  of  the  Party- 

For  there  the  Privilege  of  Election  of  the  Eldelt  IXiuf^hter  fhall  not  dclccnd  to  her  Ilfiie,  and  Where* 
the  Law  gives  the  Eldeft  any  Privilege  without  her  Adt,  there,  that  Privilege  (liall  de*ceiid.  Co.  Litt' 
160'.  b. ]Br.  Prefentation,  pi.  z;.  cites  24  £.  5.  52.  Sc  Monllrans  dc  Faits.  pi.  65.  cites  S.C. 

3.  So  Tenant  by  the  Curtefy  of  the  Eldefl  ©(ffCt  fljnU  Ija^C  tIjC  (iime  S<^e  pi.  i.in 

IPnUUESe.  Co.  Lttt.  1 86.  b.  (0  1 66.  b.  (0  'he  Notes. 

■  Br.  Quare 

Impedit.  pi.  62.  S.  Penes  5.  H.  5.  lo^ 

4.  If  three  Jojntcfiants  are  of  an  Advowfon,  and  the  one  prefents,  the 
Ordinary  is  not  bound  to  receive  him;  but  it  he  does,  the  other  has  no 
Remedy  ;  For  two  cannot  have  Quare  Impedit  againlt  the  third  i  Contra 
ot  Coparceners.     Br.  Qiiare  Impedit.  pi.  128.  cites  6.  E  4.  10. 

5.  A  Fine  w-as  lcv\eci  of  a  Manor,  unto  which  an  Advowfon  was   ap- Or.  Fines  pU 
pendant,  wherein  a  third  Part  was  rendered  back  to  A.  tor  Lite  with  di-  -4-  cites  45 
vers  Remainders  over,  and  foof  the  other  two  Parts,  with  the  Adiwwjbn  pf^-  5-  'i- 
cverj  }d  Part  as  aforefaid  i  It'they  cannot  agree  to  prefcnt,  a  Litple  Ihall 

incur  i  They  arc  all  Tenants  in  common,  and  being  JirJ}  named,  or  lalt 
named,  is  of  no  Privilege  or  Prejudice  i  For  being  by  one  Deed  it  ihall 
pafd  Uno  Flatu.  Arg.  Godb.  128.  cites  45.  E.  3. 

6.  A  Grant  was  made  of  the  next  Prefentation  to  Sir  Godfrey  Foliamb,  And  pj.  2. 
and  to  jour  others,  &;  eorum  cuilibet  conjunctim  &  diviiim,  Hieredibus,  ^  ^-^-adjudg- 
Executoribus  &  Allignatis  fuis,    and  atterwards  the  Church    became  |],„']'"T1'^'^L 
void,  and  Sir  Godfrey  prefented  one  of  the  other  lourGrantecs;  and  ad-  11*9  pi.^Ao^' 
judged.  That  the  P/Y/W^^/'/o;/  ly  oHe  a/one  was  g,oo(\.  Mod.   4.  Trin.  31.S.  C.ad- 
H.  8.  Sir  Godlrey  Foliamb's  Cale.  J"ft;-;ed  ac- 

roidingly 

by  the  Mamc  of  Sir  William  HoIIis's  Cafe Bcndl  24.  pi.  40.  SC.  but  mentions  no  Ju'lgnient . 

Sce{M.a)pI.2   o  C In  Cafe  of  Berry  V.Perry  5  Bul.v.a66.  Coke  Ch.   [.  Arg.  fiy  sit  was  retblvcd, 

that  this  Grant  was  not  good,  becaule  .in  Intereft  ca.nnot  be  dirided,  and  lays  that  v  ith  ti-.is  agrees  14 
Eliz,  D.  504.  pi.  54. 

4  N  6.  Two 


326 


Prefentation. 


7.  Two  Sifcrs  Coparceners  of  an  Advowfon,  married  -^  the  yotiHrcr 
SxHqv  died,  and  her  Husband  wzs  Tenant  iy  the  Cnrtcfy.  The  Church 
V()ided ;  the  Clerk  ot  the  Husband  of  the  eldefl  Silter  was  recei  \  ed  i  And 
akerwards,  the  Church  became  void  again,  and  the  faid  Husband  of  the 
ycioigej}  S\{\&T  frcfented,  but  being  dillurbed,  brought  a  Quare  Impedit 
as  Tenant  by  the  Curtefy  in  Toruo  feciindo,  and  had  Judgment.  Aloor 
224.  pi.  304.  Pafch.  28.  Eliz.  Beverley  v.  Archbiiliop  of  Canterbury. 

8.  The  next  Prefentation  was  granted  to  2  and  before  the  next  Avoi- 
dance one  gave  a  Rekafe  to  the  other  ■■,  then  the  Incumbent  died,  and  one  of 
them  prejented  alone,  and  being  dilturbed,  brought  a  Quare  Impedit  and 
had  Judgment  i  It  was  alfigned  for  Error,  becaufe  one  of  the  Grantees 
had  brought  this  Quare  Impedit  in  his  own  Name  alone  ;  But  adjudged 
niamtamable,  becaufe  the  Releafe  was  made  before  the  Church  wa$ 
void,  and  this  Judgment  was  affirmed  in  Error.  Moor  467.  pi.  664.  Trin. 
^pElis:. Rot.  1038.  Lewes  V.  Bennet. 


(Ha.)     Prefentment  to  the  Church.     By  Coparceners  ^/ 
Compofitmi.     How  the  Compofition  being. 

u  TJF  tlje  Compofition  be  againft  Common  Right  it  Hjtlll  not  bind 
X  witnout  Deed.  17,  C.  3*  38*  6.  l^tljUtiffCtl. 

2,  As  aftcf  tl)c  Citiefl  t)a!5  iJrcfcnteD  if  tlje  eojnpofition  be  that  the 

Eldeft  Ihall  prelent  agam  and   then  the  2d,  nnO  fO  tlJC  OtljCtiS  ill  CUHt, 

Cljis  fljall  not  binti  U3iti)0Ut  ^tt^  bemu  nsfluift  Common  Eiffbti  Jfoc 
s,  p  Andif  ^c  3urE  ttje  20  is  toprefcnt.  17*  €»  3*  38.  b.  aojunscQ. 

the  Defen-  3-  i"  Ji^iiare  Impedit  i  the  PlamtuF  makes  I'itie,  That  Compofition  was 
dant  will  de-  had  hefween  the  Defendant  and  A.  B.  to  prcfent  by  Turn,  and  the  Defendant 
fhewWof  P'"'^'^"^^^'  in6.  a: B. granted  to  MS,  our  Heirs,  and  Affigns,  the  next  Pre- 
theCompo-  Testation  by  the  Deed,  whtch  hejhewed,  and  fo  it  belonged  to  him  to  pre- 
fitiop,  and  fent,  the  other  prayed  that  the  *  [Pla^ntift'J  Ihall  Ihew  the  Compolition; 
thi^  is  ad-  and  becaufe  he  does  not  claim  but  one  Prefentation,  and  fo  the  [Deed of] 
Sin^Mm  ^^°'"P'^/'^'on  belongs  to  the  Grantor,  and  not  to  the  Plaintiff,  therefore  the 
xhhhfer-  Opinion  was.  That  he  lliaJl  not  be  compelled  to  fliew  it,  by  which  t.he 
eoiprry,  and  Dclendant  palled  over,  and  pleaded  a  Releafe  of  A.  B.    Br.  Monltrans. 

the  Plaintift'  pi.  72.  cites  39  E.  3.  37. 
fhall  reco- 
ver ;  For  th=  Deed  of  Compofition  belon;;.'!  to  A  B.  and  not  to  the  Plaintiff,  who  has  only  a  PrerentatioB 
as  held  thereby  Thorp  Juftice,  and  the  befl  Opinion.  Br.  Peremptory,  pi  25. cites  S.  C.  * 

*  In  Brook  it  is  [Defendant] 

And  Holt  4.  Error  in  Quare  Impedit ;  Plaintiff  counts  that^&  B.  feifed  as 
That^aCom  Joi"'^^"^"'^^  ^^  ^^^  Advowfon  in  Grofs,  by  Indenture  agreed  to  hold  as 
voiltio^nrTrj"  ^f//:.'«f  J  in  Common,  and  that  they  and  their  refpeaive  Heirs  Ihould  prefent 
L  either  iy  by  Turns,  and  iliews  feveral  Prefentations  alternately,  znd  ih^.r.  A.  died. 
Record,  by  and  his  Moiety  defcended  to  C.  and  made  Title  by  gra?it  of  the  next  Prc- 
plfol  iff7  fi"^'^^'""  ^J  ^-  ^°  ^-  ^'^  Executors,  Adminiltrators,  and  Alfigns,  in 
thelpritiesw  ^^.^°^^  ^'^^'  ^^^  Church  became  void,  and  that  D.  tnade  M.  Executor,  and 
£/W(asCo-died,  and  it  belonged  to  him  as  Executor  to  prefent  &;c.  The  Biiliop 
parcerncrs)  claimed  Title  byLapfei  The  Plaintiff  replied.  That  D.  his  Teftator 
in  BlS'as  P''^(^"'^^^  °^^  Symms  within  C\x  Months,  and  the  Biiliop  refufed  him  i 
Tenamsin'  Defendant  rejoined,  that  he  gave  him  3  Days  to  prepare  for  Examination, 
t:«nimon,  or  and  hc  never  came  ;  and  traverfed,  that  he  refufed  Symms  at  the  Prefen- 
Jointenants)  tation  of  the  Tellator ;  and  upon  Ilfue  taken  upon  this  Traverfe,  Verdift 
'orTulr^''  ^."^  Judgment  was  for  the  Plaintiff  ^  and  now  it  was  inlilted,  that  Plain- 
'flmhy  Turns,  ^^^^'^'^^^^^^^^^^y}^^^i  ^^^'^^^^  ^he  Agreement  to  prefint  by  Turns  did  not 
andonf  ftre-'ope^'iteasa  Partition^  and  fever  the  Right,  but  merely  as  a  Compel i- 

fents,  the  '  fj^g 


Prefentation.  327 

lion  or  Agfeement,  which  being  broken,  the  Plaintiff  has  a  proper  Re-  other  isnnr, 
niedv  by  Aftion  ^  But  adjudged,  That  it  fevered  the  Right  of  PnJentationM^^'^'^  U- 
I  Saik.  43.  Mich.  1 1  W.  3.  B.  R.  The  Biihop  ofSalisbury  v.  Philhps.       [^'fo^";^"" 

Imjiedir ;  and  this,  wlietlicr  the  Prefentation  l-e  hy  one  privy  to  the  Agreement,  or  by  a  Stranger.  — 
;dly,  If  either  Privies  in  Dlood  (as  Parceners)  or  Strangers  (as  Tenants  in  Common  or  Jointenants)  a- 
gree  by  Dteii  to  prelent  by  Turns  the  Compofition  iNgood,  and  the  Plaintiff  need  not  in  Quare  Impedir, 
mention  the  Compofition,  it  being  once  executed  ;  And  tliis  fhev,s  that  the  Inheritance  is  fevered,  and 
that  a  feparate  Intercll  is  vefted  in  each  of  them  to  prefent  by  Turn',  ^dly,^^  P.iro/,  for  ^o  a  Compo- 
fitionmay  be  bctiveen  Parceners  ;  But  between  Strangers  in  Blood  Compofition  cannot  be  without  Deed, 

I  Salk.  45.  in  the  Calc  of  the  Bifliop  of  Salisbury   v   Philips.   Carth.  505.  S.  C  and  there  held 

That  by  the  Agreement  to  prelent  by  Turns,  being  executed  on  both  Sides,  there  was  a  P.irtition  of 

the  Inheritance  of  the  .^dvowfon So  if  3  Tenants  in  Common  agree  to  prefent  by  Turn,    and 

every  one  has  once  fo  prelentcd,  it  is  not  neceflary  in  Qiiare  Impedit,  for  any  of  them  to  flicw  the  Com- 
pofition, becaule  it  has  been  executed  once;  Otherwife,  if  not  executed,  as  was  held  by  Shelly,  titi- 
herbert,  and  many  of  the  Serjeants,  Dy.  25.  pi.  194.  Hill.  28  H.  S. — Wats.  Comp.  Inc  Svo.  117.  cap.  8. 
cites  S.  C. 

5.  7  Ann.  cctp  18.  Ena£ls  that  if  Coparceners  or  Jointenants.,  or  Tenants  ^'"'^  Statute 
///  Common    be  feijed  oj  any  KJfatc  of  hihcntauce  tn   the  yidvoivfon  of  any  ^^^^^^ 
Church  or  Vicarage,  or  other  Kcckfiajiical  Promotion,  and  Partition  is  orjball  where  the 
be  made  bcfxeen  thsm  to  prefent  by  'Turns,  that  thereupon  every  one  Jhall  be  t alien  Pl.ii;.tiff  has 
and  adjudged  to  be  feifed  of  his  or  her  feparate  Part  of  the  Advowfoii  to  prefent  but  c;;e  </«»■« ; 
in  his  or  her  Turn  -,  As  if  there  be  two,  and  they  make  fich  Partition,  each  ^  ^^.^.^^^^y. 
pall  befaid  to  be  feifed,  the  one  of  the  one  Moiety  to  prfent  in   the  Jirfi  Turn,  had  ufurp'd 
the  other  of  the  other  Moiety  to  prefent  in  the  fe.ond  Turn  ;  tn  like  Manner  if  in  theirTum 
there  be  three,  four,  or  more,  every  onejhall  be  f aid  to  be  feifed  of  his  or  her  ^'^^y  '^o^''* 
Part,  and  to  prefnt  tn  his  or  her  Tarn.  tile  next  A- 

voidance  in  Prejudice  to  the  others  Right;  therefore  the  Statute  intenit  ftich  Patrcvs  only  ai  hatie  a  ccn- 
i'muing  Right  of  Patronage,  and  to  remedy  tlte  Cales  not  wicliin  the  Stat.  U^.  z  Gibb.  253.  in  the  Cafe 
of  the  Biihop  of  London  and  Lewen  v.  the  Mercers  Company. 


(I.  a)     By  .#^m'. 


See  (K.c) 


i»Tif  i5U  Advowfon  be  allotted  in  Chancery  to  the  youngefl:  Copar-  This  is  i; 

X  cencr,  fljc  fljall  ptcfcttt  auti  maintain  Cluatc  Jmpeoit  againft  ^  ]  5,?^^- 
m  oti)cr!3  'tilt  it  be  ncfcateu,    17  €.  3-  38.  Line  &c  of 

the  Page, and 
in  pi.  10.  And  it  is  fofaid  per  Seton,  That  if  the  Advowfon  was  allotted  to  the  younj^cff  &c.  in  Chan- 
cery, non  eft  Dubium,  that  fhejhall  not  dereign,  by  force  of  this  Allignment,  the  firff  Prelenimcnt  at»a*nft 
the  others  by  Quire  Impedit. 

2.  Jf  three  Coparceners  of  a  Manor,  to  which  an  Advowfon  is  Ap-  Sir  Richard 
pendant,  make  Compolicion  to  prefent  by  Turns,  anU  tt)C  Eldelt  ufurps  T'^'r^J,^' 

m  tt)e  Curns  of  tU  epiBDlcnioa  anu  i^ounijcft,  anti  after  uiiirpsi  of  HSrd 
flgainmtlieCurn  of  tt)c  ^lOtJlcmoa,  vet  tijc  i^ounficft  map  preient  ibid.  ,4  b. 
in  Ijct  ne)rt  Cum*    30(2.3.  14.  b*  15  but  not 

adjudg  d. 

?.  So  if  Coparceners  maltc  Compofition  to  prefent  b)>  'STurn,  anu  ^'^^i'  ^br. 
tlje  one  uftirpo  m  tt)e  Cnrn  of  t\)z  otfjcr,  pet  fljt  npon  Uiljojn  tl)c  iifiir=  ^v%" 
pation  uias  *  map  prefent  npon  ti}E  Compofition  ni  bcr  nert  Curn.  *  fvu^-. 

ifor  tlie  Ufurpation  between  Coparceners  is  itn  Ulurpation  but  for  theO'-'^rv^V 
fame  Turn  ulurp'd,  and  does  not  put  the  other  to  htr  Writ  of  Right. <lit.  pl.j9. 
if*  15*  34-  J.  "  ^*  4-  9.  ®CC  tlje  Scirute  W.  2.  cap.  5.  ^^'^"^^  E.  3. 

awarded  accordingly.  -^-4Lc.  212,  225.  pi.  356  cites  SC  Per  Brian. 

4-  3if  a  Partition  be  matJC  to  one  Coparcener,  and  an  Advowfon  af-  Tljis  ii  in 
fign'd  to  her  in  Chancery,  the  others  being  within  Age,  \)Zt  at  tljClr  fuU  '['^  ^^^'■'  °^ 

9«E  tl)Ep  map  pvcfent  lip  compofition,  or  prefent  D\'  iiTtirn  as  if  m  F'evii"?.,Ii 
Piirtitiou  tjab  Dcen  matie.    17  <S»  3-  37-  b.  30- b.  iinjutiueri.  30  b  Per  ' 

Pole,    and 
3-.  b   Per  Kill. 

5.    Jci'ff 


S2 


8  Prcfentation. 


5  'two  Coparceners  and  a  Stranger^  who  pretended  a  Right  to  the  Ell-ate 
and  an  Advowibn,  agreed  by  hutentures  niucually  executed,  that  each  of 
them  Ihould  prelenc  by  fiirns  nntil  fuch  I'inie  as  a  Partition  could  be 
made.  An  Aft  ol'  Parliament  confirms  the  Indenture,  aiid  enacts.  That 
every  Agreement  therein  contained  lliall  Hand,  and  that  all  the  rell  ot 
the  Lands  not  particularly  named,  and  otherwife  dilpofed  of  by  the  faid 
Indenture,  lliould  be  held  by  thefe  three  in  Common ;  The  i/?  tn  J'urn 
grants  the  nest  Avoidance  (the  Church  being  lull)  to  the  Plaintirtj  and 
Judgment  for  him  ;  for  'twas  agreed,  that  there  iliould  be  a  Preientation 
by  Turns,  and  therefore  for  one  Turn  each  had  a  Right  to  the  whole 
Advovv  Ton  by  rCafon  of  the  Ati  of  Parliatncnt  which  confirm'' d  the  Agree-- 
ment,  and  thereby  an  hitcrejl  is  fettled  in  each  of  them  'till  Partition  made  ; 
but  this  Agreement  would  have  veiled  no  Interelt  in  either  of  them 
without  an^Aft  of  Parliament  to  corroborate  it;  therefore  there  had 
been  no  Remedy  upon  it  but  by  Aifion  oj  Covenant.  2  Mod.  97.  Trin.  28 
Car.  2.  Croli'man  v.  Churchill. 


(K.  a)  Prefentment  to  the  Church.  By  Coparceners  or 
others,  where  it  is  to  be  made  by  Turn.  Jf%at  Prefeiit- 
m&nt pidl  fcrve  for  a  Turn. 

See  (C  a)  pi.  I.  T  Jf  flU  Advowfon  defcends  to  two  Coparceners,  ti)0  one  being  within 
■";  '"  ''''^  X   Ags  ^"<^  '"  Ward,  aUtl  tIjC  Guardian  marries  with  the  Eldeft, 

Kotes  there.  ^^^^  ^^^^  jjj^  Church  voids,  anil  tijE  Guardian  prefents  in  the  Name  of 

thou-ht"'  both  Sillers ;  Cljlg  fljitU  iiot  fctijc  fot  aiij)  Ciirtt  to  tljc  Cincft  i  but  at 
the  Eldeft  tf)c  ncrt  ^uoinancc  if  tljep  caniiot  ngrcc  m  J^rcraitmciit,  tijc  eitjcft 
Should  have  fl,.,j|  prcftnt  alone,  as  if  no  larclcntiueut  Ijars  been  iijaoe  aftcc  tljc 
^e'n  iflhe'"  Dcrceiit  to  tljeuu   D.  35-  ly*  8.  ss-  s.  Clu^rc. 

\voul2  not  join  vvuh  her;  for  this  Ihall  be  faid  the  Commencement  of  her  Turn,  bccaufe  Hie  had  not  the 
Turn  at  the  laft  Avoidance,  that  Prefentmont  being  made  in  the  Name  of  both  ;  Sed  alii  e  contra.  D.  5  j. 
pi  5.   Pafcli.    54  Sc   55  H.  8.  Archdeacon  Carew's  Cafe. 

*  As  for  In-  2.  Jf  ttUO  IjS^C  '^XtlZ  tO  ptercilt  bp  ^tlClt,  anH  the  one  prefents,  and 
coniinency     j,js  Clerk  admitted  and  inltituted  &c.  ailtl  after  is  deprived  for  *  Crime 

or  other  fuch  jjj.  i^^y.^^^^  Ot  aiip  otl)cc  Caufe,  ^et  Ijc  fljiiii  not  pvcfcnt  ammn  i  but 
E  68-  Trin.  tljis  njalffetije  foe  aCiit n,  bccaitfc  tlje  Cljucclj  uia^  fuii,  nu  tlje  %t\v 
41  Eii^.  C.B  tcuce  Dcclatatotp  comc3«   Co»  s-  windfor  1 02. 

S.C.  by 

Name  of  Windfor  v.  Archbithop  of  Canterbury,  Loveday  and  Fletcher. —  S.C.  Mo  55S.  pl.7(Jo.  Pafch. 

40  Eliz. So  it  Grantee  of  the  next  Avoidance  prefents  one  who  is  amnitteii  and  ivftituttd,  but  dies 

before  Induction,  the  Grantee  fhall  not  prefcnt  again ;  but   if  he  dies   iejore  Inftitution,  'tis  otherwife. 

Arg.  Mo.  445    pi  609    Hill.  98  Elix,  in  the  Cafe  of  Robins  v.  Gcrrard. S.  P.  Arg.  Goldsb.  165. 

fays.  It  ,wus  londjudg'd  in  Colfhill's  (^afe  —  S.  P.  Per  Gawdy,  J.  and  agreed  per  Fenner,  J.  and  Pop- 
ham  Ch.  J.  Goldsb.  165.  in  the  Cafe  of  Robins  v.  Prince. 

.See  (La:)  pl  3.  SO  if  fl  Q^ait,  tUljO  \M  il  Clint,  prefents  one  who  is  merely  a  Lay 
6.— s.  P.  by  perfon,  auB  t}C  is  admitted  and  inltituted  &c.  and  itJlSl  SJCilJareD  bP  Sen- 
Roll  R  46-  ^'^"^^J  that  he  is  incapable^  ailU  tljCltfOtC  UXHH  ab  initio  ;  JJCt  bkaUK 

cites  5  Rep.  t\)t  Cbittc^  uws  fiiU  'tiH  tl)C  g^ciitmtc  Dcciaratori)  conicd,  tl^o'  tlji^ 

njatl  relate  tO  lOUIC  iStUpOlCEi,  It  fljall  bC  fOt  a  Clltll*     €0. 5-  ^^t"^- 
fcr  102. 

cro  E.  6S7.    4-  So  if  a.  tDljo  \m  otic  Cutn,  prcfcntss  'J5*  toljo  \^  atimittcn  atiD 

Trin.  41  (nfttttltetl  $C»  auTl  after  be  is  deprived  by  Sentence ;  U)f)CrClipOIt  C.  who 
Eli''..  C.B  ii;^s  the  2d  Turn,  prefents  D.  who  is  admitted  and  inltituted  &c.  and 
^- ^^  ^^°J  after  he  is  deprived,  and  the  firll  Sentence  Of  Dcpi'IliatlOU  Of  IS*  de- 
deVvVVind-^J-ii'cdtobe  void,  and  he  reltored,  auD  aftCt  E)-  dies,  ailO  tIjCU  15* 


Prefentation.  329 


Hicd,  €.  fljatl  prcfciit  tit  Ijis  Ciirn ;  for  t!jo'  D.  m^  parfon  for  t\)C  ^"'•^'•'i 
Cmic  to  nil  piupofcs  nuriiig  t()c  firft  Dfpr(\jatlon,  ann  1^  uins  not  ^''9  \  ^'- 
Inciimbrnt,  j'ct  mm  m  20  eiitteacc  comcis,  15.  luas  Encumbent  sentence 
aijani  U))  JForcc  of  t(jc  flril  l^refentmciit,  Jnftituttoit,  anO  Jutiuman,  Declaratory 
aiiD  ticcocn  not  a  nctti  ^Piiffitution  n.  !3ua  fo  l=>.  nico  Jncunibcnt  bi'  '"<"•  '''<^  ^^^'' 
force  of  tl)c  firft  prcfcntaieiit  tii  tije  firft  Curn.    Co.  5-  fyi»^/or'''T\  , 

102.  mmcri.  "^^1:!;:^ 

of  B.  and  fo  utterly  defeats  the   Incumbency  of  D.  as  if  he  never  had  been  prcfinted!  ^' 

5.  But  in  tlje  faiD  Cafe,  if  D.  had  died  Incumbent  before  the  fccnnd  Cro.  E  6%: 
Sentence,  or  it  the  hrlt  Sentence  had  not  been  revers'd^  tljClt  tl)I0  fllOUltl  ~  ^^°  5  j^- 

mu  for  tOc  ^urii  of  C.  ioljo  prcfciitco  Um.  Co.  5.  trin^fhr  102  b.  p'  '^°- 

6.  2f  a  i39aU  prelents  B.  UJljO  tjS  aQniittCO,  illftltUtCtI,  ailQ  induced,  By  hh  not 
but  fjC  Ijagi  noc  fublcribed  the  x-\rticles  &c.    aCCOrDilig  tO  tl)C  ^tatUtC '-e^'ding  the 

Of  13  Ei-  bP  luljicO  m  CiQUHirion,  Jnftitiittoti,  ann  Jntiumon  nrc^'^'"'-'"''^ 
ijoiD,  itfljalf  notftrucfora^uurui  bccaufc  m  aunnmon,  jmTitii=Srpl 
tion,  ann  Jtrouctiajt,  arc  merely  13010  Lij)  tljc  Statute.   Co. j.  Jfu^.i-  fon of  the 

for  102.   b»  Church,  by 

oftheStatute   of   i ;  Eliz,  D.  ^77.  b.  j.^!  51.    Mich.  25  &  24  Elir..     Anon. Ibid.   Maro-.  fays 

It  wasadnidij'd,  that  the  Church  is  void,  ipfo  facto,   without  Deprivation,  cites  Trip.  48  F.li/.^  B  r' 

Baker  V.  Brent. Hob.  16S   cites  S    C. S.  C.  cited,  and  S.  P.   held  by  Vaut'han  Ch    T 

Vaugh.  ic;^  Hill,  22  &  2-  Car.  2.  in  the  Cafe  of  ^l)UtC  v.  iijjCin. 2  Jo  19.  S.  C."  And  the're 

VaughanCh  J.  took  a  Divcrfitv  between  not  Re^ii/n^  tlie  Articles 7ind  n.t  Suhf-'ribtm^  them  ;  for  the  Sta- 
tute prohibits  Admiflion  before  Subfcription,  and  makes  the  Admilfion,  laftitution,  and  Induction  void 

7.  Where  the  one  lofcs  bis  I'lirn  by  Lapfe^  this  fliall  ftand  for  hi^  Turn  j  -^^  in  Q_jare 

and  at  the  next  Avoidance,  the  other  Ihall  have  his  Turn  again  i  Quod  \'^'?^^^^  ^Y 

nota.  Br.  Prefentation.  pi.  26.  l^'^c^T 

i  oary  or  the 

Church  of 

L.  of  a  Voidance  of  a  Vicarage  againfl  the  Rifhop  of  E.  and  H  and  cxiwted  that  he  hud  one  Prebend  as 

above,  and  H.  had  fttch  another,  and  they  are  fe'tfcd  of  thofe  freh^nds  in  the  Church  of  L    to  whhh  the  Fnar- 

a^t^e  is  appendant  to  pre/ent  liy 'ftirn  ;  and  that  )f    the  Plawtiff  prefented  D.  his  Clerk  See.  who  was  received 

by  •whcfe  Death  &c.  the  Church  ividrd,  and  the  Eipcp  in  Def,'ult   of  H.  made  Collation  to  cnc  G.  See.  and 

made  InduBion  in  Ri^J't  of  hi.   hy  -juhofe  Death  the  t'lcarap^e  is  vcnv  void;  (b  it  belong'd   to  him  to  prdent 

and  the  Defendant  dilhub'd  him  &c.  and  a  good  Count.     Br.  Prefentation.    pi.  26,  cites  24  E.  5.  i6. 

8.  A  Man  feifed  of  a  Afaiior  'with  Jldvowfon  appendant  had  Ifjiie  four 
Dattghters  and  died,  and  they  made  Partitiun,  and  that  each  prejhit  by 
'Turn  in  Degrees  as  their  jige  ivas^  by  which  the  E/i'/ty?  commenced  ^c. 
and  her  Clerk  -'joas  in,  and  after  the  Eldefi  died,  her  Heir  ivithin  Jge,  and 
found  by  Office  lor  the  King,  and  he  lei  fed  the  vVard,  and  after  the  C/wni? 
voided  again,  and  the  King  prefented  in  the  Turn  of  the  fecond  Daughter  i 
And  per  Catesby,  die  King  prefented  in  Right  of  the  Heir,  and  there- 
fore his  Prefentaient  in  the  i  urn  of  the  fecond  Daughter  does  not  puc 
her  to  her  Writ  of  Right  of  Advowfbn.  But  to  this  Brian  and  Choke 
were  ftrongly  Contra,  and  that  this  is  Ufurpation  ;  For  there  is  no  Pri- 
vity of  the  Partition  in  the  King,  and  this  Prefentation  is  in  fare  Regis 
Propria  as  Lord,  and  never  iliall  make  Title  to  the  Heir  in  Quare  Impc- 
dit.     Br.  Quare  Impedit,  pi.  139.  cites  22  E.  4.  8. 

■9.  VV'here  one  Parcener  prefents  in  the  'turn  of  her  Coparcener,  tliis  does  Si>  of  Grants 
not  put  her  to  her  Writ  of  Right  of  Advowfon  as  Ufurpation  done  bv  aofCoparce- 
Stranger  IhaJl  do,   by  reafon  of  the  Privity,  fo  that  iLe  loles  nothing  by  "^'''^     ^''i'^- 
this  Turn,  and  ihall  have  her  Turn  again  when  it  comes  to   her  'l'urnr~~]\     * 
again;  Per   Catesby  and  Brian.  Br.  Quare  impedit,  pi.  132.  cites  zz  trons^zreT 

^.  4-  8.  and  one  ufurp 

upon  the 
other,  that  other  fhall  not  prefent  to  the  next  Avoidance,  but  muft  wait  till  Uis  Turn  comes  round. 
Gibb.  255.  Pai'cli.  4  Geo.  2.  3.  R.  held  fo  in  the  Cafe  of  the   Bifliop  of  London   and  Lewen  v.  the 
Mercer's  Company. 

10.  In  Qnare  Impedit ;  four  Manors  dcfccnded  te  four  Daughters,  and  an 
^dvi-jufcn  'xas  appendant  tu  one  Manor,  and  they  made  Part  it  im  of  ad  ss~ 

4  O  cpt 


330 


Prefentation. 


cipt  the  Jd^Jtrjofoiij  and  fo  that  each  Dnughter  had  a  Manor  ^  znd.  not  Ling 
determined  of  the  Jdvoivfon  by  Comprijition  or  cther-jcife^  and  akcr  die  Church 
voided,  and  the  eJdeft  Daughter  pref.nted,  and  at  another  Voidance  the 
fecund  Daughter  prefented,  and  ata  third  A\oidancc  the  .y/ri-?;/^fj- pr6yZ7/?tfr/, 
and  after  the  incumbent  died,  and  the  joiirth  prefented,  and  well,  by  the 
Opinion  ol"  the  Court ;  For  the  Fourth  Ihall  not  lole  her  Turn  by  the 
Uiijrpationot'a  Stranger  Ibttered  by  the  third  Daughter.  Br.  Quare  Ini- 
pedit,  pi.  1 1 8.  cites   2  H.  7.  4. 

II.  It  the  King  upon  his  Promotion  of  the  Incumbent  to  a  Bifhoprick 
does  not  take  Benefit  of  the  firft  Avoidance,  hutftiffers  a  Stranger  topre^ 
feat,  and  the  Prejentee  dies,  he  iliall  not  have  his  Prerogative  to  prefent 
to  the  fecond  Avoidance.  Cro.  E.  790.  Mich.  42  &  43  Eliz.  C.  B.  Baf- 
fet  V.  Gee. 
Ow.  151.  12.  A.  and  B.  feifed  in  Fee  oi every  other  I'urn;  A.  preferned;  then  B. 

Mich  42  &  prefented  in  his  Turn,  and  after  Indu6tion  his  Clerk  is  deprived^  but  ?;o 
^•■^'''^''-^■'^- Notice  is  given.  Tha  Bipop  collates.  K. grants  his  Fee  to  J.  S.  The 
CoUatee  dies.  It  is  now  B's  Turn.  For  A.  before  his  Grant  to  J.  S.  might 
have  removed  the  CoUatee  for  want  of  Notice  ^  but  he  dying  incumbent^ 
A's  Turn  is  ferved.  But  after  A's  Grant  to  J.  S.  neither  A.  nor  J.  S. 
could  prefent,  and  the  Collation  was  good  againft  all  but  the  very  Pa- 
tron, who,  after  the  Grant,  could  not  ha\e  Action,  but  he  hasdeilroy- 
ed  it  by  his  Grant,  and  fo  none  can  have  it.  Cro.  E.  811.  Hill.  43  Elii. 
C.  B.  Leak  v.  the  Bilhop  of  Coventry  and  Babington. 

13.  Where  the  King  has  Title  by  Lapfe  and  prefents,  and  his  Prefentee 
is  inllituted,  yet  the  King  may  revoke  his  Prcfentation  and  prefent  an- 
other, his  Turn  not  bei^ig  fer'tfcd  by  Inii;itution  only  bejore  Induifion. 
Watl.  Comp.  Inc.  197.  cap.  12.  cites  i  Le.  156.  Trin.  32  Eliz.  Wright 
V.  the  Bilhop  of  Norwich. 


Fol.  :;48. 


(L.  a)  Prefentment   to  the  Church.     /Fkif  Pcrfons  may 

be  Preja/ted. 

Br. Piefenta- 1.   ^  j0_Abbo^  uiaj)  tc  ptcfnttcti  to  3  Cfjurclji  (for  !}c  tnasi  cnpaWe 

tion,  pi.  2. 
cites  S.  C- 


ASa    J- c    "  r ^  "   --   ~v  — V'  v-^-   -. r 
of  an  $lppropriation  tip  uifjicij  ije  uuis  perpetitailp  l^atfon 


Br^Abbe,  pi.  tnipiUfOnCC,  ailD  t)ari  Curam  Animarum.)   34  1^,  6.  1  j. 

zi.  cites  S. 

C, Br.  Incumbent,  pi.  2.  cites  S.  C. 

Br  Prefenta-    2,  ^  Maftcr  of  a  College  f0  not  prefentaWe  to  a  parfoiiasc  34 1^» 

tion,  pi  2.      6.  15. 
cites  S.  C. 

• Br.  Abbe,  pi.  22.  cites  S.  C. Br.  Incumbent,  pi.  2.  cites  S.  C If  a  Corporation  con- 

fifts  of  Maftcr  and  Confreres,  and  the  M.ijler  and  Cor.fveres  p-efent  the  Majlei;  it  is  void  ;  For  the  Pre- 
fentor  and  Prefentee  are  one  and  the  fame  Pcrfon.  Br.  Prefentation,  pi.  25.  cites   14  H.  8.  2.  per  Fitz- 

James And  per  Moore  J.  The  Maftcr  or  Head  of  the   Corporation  cannot  be  fevered  from  the 

Corporation,  but  other  of  the  Commonalty  may;  For  the  Mafter  and  Confreres,  or  the  Dean  and 
Chapta-,  Tn.^y  prefect  one  of  the  Confreres,  or  one  of  the  Cliaptcr  ;  For  he  is  not  a  perfect  Body  without 
the  Head  ;  But  he  is  a  perfeft  Body  if  the  Maftcr,  or  Head,  and  the  greater  Parr  of  the  Commonalty  al- 

fent.  Br.  i^rcfcntation,  pi.  25.  cites  14  H.  8.  2. Br.  Quarc  Impedit,  pi.  86.   cites  14  H.  S.  2.  29. 

Watf.  Comp  inc.  Svo.  205,  2c6.  cap.  15.  cites  S.  G Watf  Comp.  Inc.  Svo.   592.  cap. 

20.  cites  S.C.  and  adds,  (.Quaere,  whether  the  Inftitution and  Induction  in  fuch  Cafe  be  merely  void, 
fo  that  Lapfe  may  run  from  the  Time  that  the  Church  became  firft  void  ?  And  fays,  he  conceives  it  is 
not  fo,  but  the  GeanandChaptel-  may  well  prefent  one  of  their  Chapter,  or  any   Corporation,  one  of 

their  Members,  and  cites  5  Bulf   43.  Trin.  15  Jac.   Harris   v.  Auftin. It  has  been  held,  that 

when  the  Mailers  and  Brothers  of  an  Hofpital  did  prefent  the  Mafter,  and  the  Mafter  and  Brothers  did 
bring  a  Quare  Imfiedit  againft  the  Mafter  by  a  ftrange  Name,  that  the  Writ  did  well  lie,  and  that  they 
fliould  recover,  the  Prelintment  being  void.  Watf  Comp.  Inc.  Svo.  515.  cap.  2(5.  cites  12  H. 
8.  12. 

3.  Cfje 


Prcfeiltation.  ^  <>  j 


3»  '21^1)0  fitinC  law  of  a  IVan  and  chapter,    (tfjOUtjf)  Dl>  CorrUptlOll  ^'^  ^i'e, 

tljcDUicrc  capable  Of  an  ^ppropnatton,  aim  a  picac  nianc  to  ija^cEp"-,,*^"" 
Ciiram  ammarum  for  tljcui.  Cam.  497O  34lpt  6. 15.  cumb'cnl.  pf. 

2  cites  S.C. 

4.  Jt  fCenilS,   tOat  ;in  Alien,  who  is  a  Minifter,  lliapDC  pCCreiltCH  tO  A^towh:lt 

a  (liljitrct),  tljouffi)  all  Cllicu  cannot  fjaijc  Boncrfions  of rranl^tmc^  ^^""  I-'-"!! 
tucnt  ijcrc,  ticcaufc  liplntcntiincnt  t\y:\>  luill  anOcrc  to  tijnt  Countri)  nolL  I'mo^" 
auD  agamtt  m  m  ^inic  of  i©ai-,  aim  tranfpoit  tfjc  €rcantrc  of  tijcconce  ofsnu 
jRcalm  out  of  tijc  Ecalm,  pet  tijts  10  not  inlcntieD  of  ^^puitual"""' Aliens, 
Q9cn;  anD  tlji^iuastijc  Ecaion  tijat  anctentlp  ituias  ufttnlfot  aii^^'r  ^ '"" 
enjsto  mt  ^pirttua!  J>Jroniotion^  Ijerc,  ann  J^riots  aucn.s  IjaO  conv'^„j'" 
mm  l?oflctfion£)  ijcrc,  nnn  were  iparfonsi  appropriate.  cie,,,  might" 

come  to  the 
Nation  by  other  Aliens,  if  they  wci-e  allowed  to  enjoy  Eftate  here,  was  the  Reafon  they  were  fuf- 
fered  to  enjoy  Ecclcfiafticsl  Benefices  here,  could  not  fure  be  the  Reafon,  but  rather  tiie  Pope',-;  U- 
furpation,  and  a  iubniilFion  to  his  pretended  Authority  in  Church  Matters,  and  his  providing  many  Ec- 
clefiaftical  Preferments  here  to  Aliens,  his  Friends  and  Creatures,  was  the  chief  Reafon  Aliens  enjoy- 
ed Benefices  in  Ent^land,  tho'  other  Reafons  probable  m>^'ht  be  fancied  to  dillint^uifh  it  from  the  Gale 
of  Laymen  who  had  a  Freehold  in  their  own  Right ;  but  the  Prattice  I  believe  has  always  continued 
to  allow  Aliens  to  enjoy  Ecclefiaftical Benefices  here.    Watf.  Comp.  Inc.  Svo.  576.  cap.  20. 

5.  By  the  Statute  of  13  R.  2   and  i  H.  5.  Frenchmen,  are   difablcd  Thev  are 
to  have  Benefices  in   England,  anU   JTrenCfjmcn    CnilCm?en'll  i    loUt  ^V*^ '° ''^ 

jSniiatc,  ialjctljer  tfjcp  continue  of  force  at  tlji0  ^av>  obioiete. 

6,  3ifa  Layman  bc  prcfcnteti,  inffituteo,  anti  intiuftcti,  Ijc  I'spar^see  And  16 
fon  He  facto,  anu  it  10  not  a  mere  Bullitt  Dobart'iS  Eeports  209.    p^  j4  Puch. 

nefield  V.  Pickering. Bendl.  195.  S.  C. D.  292.  b.  pi   i.Mich.i;&:  i4Eli7,.S  C. Watf 

Co.Tip.  Inc.  Svo.    52.  cap  5.  cites  S.  C. S.  P.  per  Pophaai  Ch.  J.  Cro.  E.  ;  i  5    Hill.  ^6  Elii.  B.  R. 

in  Cafe  of  Pra:t  V.  Stockc. At  Common  Laiv  a  mere    Layman    was  incapable.     By  a  iitatiuc  in  O. 

Elizabeth's  Time,  a  Deacon  was  made  capable  ;  By  the  Statute  14  Ctir.  1.  4.  jione  hut  n  Pacli  is  fo' 
and  this  Statute  is  declarative  of  the  Common  Law,  and  ib^s  Benefiie  not  ipfo  /Wi-'/^o'juA/,  but  tli.it  there 
mull  be  a  Deprivation  ;  and  it  is  not  like  the  Cafe  of  a  Woman  preiented,  which  is  a  perfect  Nullity  ; 
but  when  a  mere  Laicus  is  in,  the  Church  is  full  ;  per  Scruggs  Ch.  J.  i  Show.  54.  Palch.  5  i  Car.  2. 
B.  R.   in  Cafe  of  Hill  v.  Boomer. 

A  Layman  is  capable  of  a  Prchend,  for  nonhabct  Curam  Animarum.     Cro,  E.  -9.  Mich   20  8c  ■'o  E 
liz.  B  R.   Bland  v.   Mado^:.  '  '    '       ' 

A  Doftor  of  the  Civil  Law  was  admitted,  inftituted  an  d  ilidufted  to  a  Living,  being  only  a  Lay- 
man, and  made  a  Leafe  for  Years  of  the  Reftory  ;  and  if  it  was  good  was  the  (^uellion.  Tlie  Leafe 
was  confirmed  before  i^  Eliz.  by  the  Patron  and  Ordinary.  Per  Gawdy  J.  fuch  Acts  which  he  was 
not  capable  to  do  fliall  not  i/w/V  the  Succeffoi,  becaufe  upon  the  Matter  he  was  never  IncuinbciU,  and. 
cited  4  H.  7.  ,  .and  28  H.  S  D.  ...But  Popl>am  and  Fenncr  J.  contra  For  in  regard  he  was  P.trfon  de  taBo  ' 
and  (uch  an  one  whereof  the  Law  takes  Cognisance  by  his  Induction,  and  the  People  cannot  take  No- 
tice of  any  other,  All  Acts  done  by  him  during  that  time  fhallbind  as  well  as  if  he  had  been  Rightful 
Parlbn.  For  it  would  be  mifchievous  if  all  the  Acts  by  fuch  Averments  fhould  bc  dr.iwn  in  Que'(Hon. 
And  all  agreed,  that  all  Spiritual  JHs,  as  Marriage,  Adm.iniftration  of  the  Sacraments  &c.  by  fuch  3 
one  diiring  the  time  that  he  is  Parfon  are  good,  and  therefore  a  Leafe  made  by  fuch  an  one,  and  con- 
firmed by  die  Patron  and  Ordinary,  ihall  well  bind  the  Incumbent  Succeflor;  and  refolved  to  have 
adjudged  it  accordingly  by  Confent  of  Gawdy  J.  But  for  other  Dcfefts  the  Judgment  was  flayed.  (>o. 

E.  7-5.  pi.  5.   Mich.  4i  &  4;  Eliz,.    B.  R.  Coftard  v.  Winder Mo.  6:6.  pi  856.  S.C.  and  fays,' 

that  the  SucceiVor  became  bound  in  an  Obligf.tion  after  the  14  Eliz,  that  the  Lelfee  llioald  enjoy  the 
Term  ;  afier  which  Obligation  the  SuccoiTor  was  abfcnt,  more  than  So  Days  in  a  Year;  And  the 
Queftion  was,  if  the  Obligation  was  void  by  the  Statute  of  14  Eliz.  and  adjudged  that  it  was  not  be- 
caufe the  Leafe  was  good,  and  fo  was  the  Obligation  nia-de for  enjoying  the  Leafe  which  the  Succcf- 
for  could  not  avoid.     And  note,  they  agreed,  that  the  Parfon  being  a  Layman  oac^ht  to  kivc  been  deprived  -. 

For  otherwife  all  his  Afts   will   be   good  as  lawful  Patror»  till  Deprivation. And  the  Dcnriv.ation 

fliall  not  have  fuch   Relation  to  make  him  no  Parfon  ab  Initio,  though  it  be  declaratory  ;  For  the  Suc- 

cclTor  fliall  not  have  mefne  Profits.     D.  252.  b  Marg.  pi.  72.  cites  S.  C. Watf  Comp  Inc.  Svo 

119.  cap.  S  cites  S.  C. 

Tho' a  Layman,  by  being  admitted  and  inftituteJ  to  a  Benefice,  has  a  Freehold,  yet  he  may  be  fucd 
in  the  Spiritual  Court  and  deprived  for  tfeat  Caufe  ;  but  if  he  has  wrong  done  him,  he  may,  peradventurc 
try  it  by  Affile.     Cro.  C.  6}.  Hils.  2  Car.  C.  B   in  Sutton. s  Cale. 

7. 3if  ii  ^an  utterly  illiterate  bc  prefenteo,  iniTitutct),  anu  m= 
tiuctcti,  ti)is  10  not  a  mere  BuliitP,  init  Ije  10  Iparfon  de  latto. 

s.  If  a  NV  Oman  Dc  prcfentcti,  uiftttiitco,  anti  nioucteo,  it  (5  a  nicix  s.  p.  per 
I3uliiti)j  Jjccnufe  ijer  Incapacity  ijj  apparent,  ipabart  209.  Sdoggs  z 

SJiow  54 
Pafch.  31  Car.  2.  in  Cafe  of  Hill  v.  Boomer. 

(M.  aj 


32 


Prcfcntation. 


(M.  a)  What  Perfons    may  be    prcrcnted  jor  a  collateral 

Rej'pS. 

I.  Tjf  a  <S'l*iint  of  tI)C  next  Avoidance  be  granted  to  three,  aitD  SftCC 
"-  tljC  CljUld)  \)Oitl!Si,  nnU  two  of  the  three  prefent,  the  third  Gran- 
tee bctim  a  Clci'l^  tljiei  13  n  gooti  |i?rcrcntmcnt,  aiiti  tljc  Tifljop  can^ 
nor  rcfufcliiui,  tljoiujl)  all  tljrcc  lucre  Jointcnantsi  tljcrcof  tip  tlje 
<JDrant,  anD  onlp  tiuo  ot  tljcni  joiueti  in  tljc  I3refentmcnt,  faccaiifc 
tijitljirt)  pcrfon cannot  prcfent  Ijnnfclt    D.  13, 14 <i- 1*  304.54 

Perhaps  that      2.  "Bllt  It"  one  ol"  the  three  (StantCCJJ  IjaU  prefented  the  third  alOHC* 

!!"f  ^n  nntnn  t^J<^  ^''I^OOP   WW^M   \)^^Z     "^^MZ^    IjlUl.        D»    13*     14  €U    304-      54- 

Qu.iic  Impcdit;  Foi' the  HnlKnAum  \v^^,  Eis&  tiiii  eorum  ConjunBim  &' Ditijlm,  and  ^o  iViz  Setjerance'\n 
the   Hubendum   Iccms  void  ni  Law.     D.  504.  b.  pi-  54. W'atf.  Comp.  Inc  Svo.  402,  cap.  20.  cites 

O.    Lj. 

Prercntnient  of  the  third  by  one  alone  was  held  good,  the  Grant  being  to  the  three  Et  eorum  cuilibct 

CcnjunHim  &  Diiifim.     Mo   4.  Trin.  51  H.  8.  Sir  Godfrey  Foliamb's  Cafe.    W'atf  Comp.  inc.  Svo. 

402.    cap.   20.  cites  S    C. -And.  2.  S.  G 4  Le.  119.  S  C?.    by  the  Name  of  Sir  VN'illiam 

Hollis's  Cafe. Bend.  24.  S.  C,.  by  Name  of  li^olllfilJ.  IxOlatlD,  where  the  Deed  of  Grant  is  re- 
cited Verbatim,  ax\Ar\o  Hahevdtim  in  it. ■ — -Mo.  849.  pi.   11  54.  Coke  Ch.  J.  cited  this  Calc  out  of 

Bcndloe,  and  takes  a  Dtffcreixe  bef^ee?!  a  Joint  Ititereji  and  a  Joint  Juthority,  and  that  one  alone  could  not 
prefenc,  becaufe  it   was  a  Joint  Intcrefl,  "but  that  had  it  been  a  Joint  Authority  it  had  been  otherwife. 

It  three  arcfei/cd  of  a  AJanor  tvith  .4d-vo^^fon  appendant,  whereof  the  one  is  a  Priejf,  and  they  three  pre- 
fent  the  Prieft  by  a  flrange  Natne,  who  is  admitted,  inlHtuted,  and  inducted,  this  is  a  good  Prefenration, 
and  a  good  Seillii  tor  them  ,  and  iftlie  Prieft  dies,  and  the  other  two  furvive,  this  is  good  Title  for 
them  in  another  Quarelmpedit ;  by  the  Juftices.    Br.  Prefcntatioa,  pi.  45.  cites  21  E.  4.  66. 

Watf  J.  He  who  pi-efcfits  himfelfhynjlrange  Name  where  he  is  Patron,  and 

Comp.  Inc.  takes,  he  fiiall  be  put  out  lor  Spoliation  ;  For  he  may  pray  the  Ordina- 
c?^  "^  "s.  ry  '^^  *  admit  him,  but  not  prefent  himfelf.  Br.  Quare  Impedit,  pi,  18. 
P.  but  if  the  cites  35  H.  6.  s9- 

Ordinary 

does  admit  him  accordingly,  this  gains  no  PoflTedion  ;  For  there  is  no  Prefentation,  and  a  Man  cannot 

plead  Plenarty  of  his  own  Prefentment.  Watf  Comp.  Inc.  Svo.  204.  cap.  i;.  cites  14  H.  8.  5. 

And  after-  ^.  Stokes  the  Father  was  Incumbent,  and  after  his  Death  the  Patron 
a  Motion  for  P^eftnted  Stokes  the  Son,  who  was  relufed  by  the  Billiop,  becaufe  by 
a  Confulta-  "^he  Canon  Law  Ftlins  non  potejt  fuccedere  Patri  in  cadem  Ecclejia,  where- 
tion,  becaufe  upon  the  Patron  prefented  Sykes  ;  then  Stokes  the  Son  obtained  a  Dif- 
otherwife  penfation  Non  Obllante  the  Canon  i  but  the  Ordinary  inftituted  Sykes, 
Remedyfthe  ^"^  ^^"^^^^  ^im  to  be  induaed.  Thereupon  Stokes  the  Son  fued  Sykes 
Court  ixfu-  iind  the  Ordinary  in  the  Delegates i  But  by  all  the  Juftices  a  Prohibition 
fed  to  grant  was  granted  ;  and  Jones  J.  faid,  that  he  had  known  it  granted  three 
'^•J;at  255.  Times,  where  both  Perfons  claimed  by  one  Patron.  But  he  and  Dode- 
Nanie  of  ^idge  held,  that  the  Canon  abovemefitioned  holds  not  in  this  Church;  And 
Stoke  V.  Doderidge  fiid,  that  fo  was  the  Opinion  of  a  learned  Civil  Lawyer. 
Styles  — —  Lat.  191.  Stokes  v.  Sykes. 

Noy.  91.  S. 

C.   by  the  Nam*  of  Stock  v.  Sicks. 


(N.  a)  To  luhom  it  fhall  be  made. 


Hutt.  14.  in    I.     \   JfCCK  Lapfe  incurred  to  the  Metropolitan,  anH  ftCfOrC  COlla- 
?ni?i°,^?'      /\  tton  bl Ijim,  if  t^  Patron  prefents,  l)C  maP  ptCfCnt  to  the  Or- 

Sop  ofSo^  ^'"^'■y  Of  tUe  DiocefiEi  U3it{)out  prcfcntinff  tu  tlje  S^ctcopoUtan.  Can- 
fijEfitr.it   tra*   I).  41  CU  05.  K»  pccpopljam. 

w  as  held  to  be 

clear) 


Prcfcntation.  c^o^ 


clear,  that  thou:?h  the  fix  Months  paf^-,  yet  if  the  Patron  prefents,  the    Bifhop  ought  to  admit,  though 

it  be  after  the  Title  drvolvc.-l  to  the  Metropolitan. Watf.  Gomp.  Inc.  ovo.    265.  cap.  i  j,  citcs'S. 

C. Watf.  Comp.  Inc.  Svo.  lyp.  cap;  12.  cites  S.  C. 


(O.  a)  ^t  lulkU  Tim  [a  Man]   may  prcfent. 

I.  TiT  a  93m  prCfGntS  W  ClCfd  to  tIjC  'BlfljOp,  lUlja  dies  before  he  ,    ,  ,    .,. 
A  is  received,  IjC  mnP  prelenc  another.  38  (£»  3.  36.  tV  fl      S^i 

2.  If  a  ^m\  prCfCiltS!  m  Clerk  to  tlje  "BinjOp,  pet  IjCmay  prefent  recewe'him  ; 
another  before  the  Bilhop  h:is  received  his  Clerk.  38^,3.   36.13,  For  tiic 

Writ  vvhicli 
ifluc;  to  th^  Bifhop  does  not  mention  tliat  the  Bifhop  fliall  receive  the  fame  Pcrfon  that  was  firll  pre- 

fentcd  to  him.     Per  Fmch.     Br.  (^uarc Impedit,  pi.  6;  cites  S.  C. Br.  Prcfcntation,  pi    iS.  cites 

iS  K.  3.  56,  but  it  fhould  be  (5S.; 

3.  3  E.  I.  cap.  28.  Eiu£ls,  that  i/o  Ckrk  of  the  King  m-  other  Jtijlice 
pall  receive  the  Prcfcntvieiit  of  any  Church.,  whereof  Plea  is  pending  in  the 
King's  Court,  without  fpectal  Leave  of  the  King,  tn  pain  to  lofe  the  Church 
and  his  Service. 

4.  Where  a  Man  prefents  to  the  Bijhop,  and  he  will  not  receive  him,  3,.  Onarc 
he  may   prefent  as  many  as  he  will  till  the  Bijhop  will  receive  him.  Br.  impedit,  pi. 
Prelcntation,  pi.  18.  cites  18  E.  3.  36.  67. cites SC 

5.  It  an  Incumbent  changes  his  Benefice  for  another ^  or  refigns  it,  the 
Patron  may  prefent  immediately  ;  For  thefe  are  Yoidances  in  Law  and 
in  Fact.  Br.  Prefentation,  pl.  49.  cites  2  H.  4.  5. 

6.  In  Quare  Impedit,  the  Defendant  faid,  that  the  Incumbent  was 
prefented,  living  the  other  Incumbent,  and  i^o  he  is  in  by  Spoliation  tScc. 
Br.  Quare  Impedit,  pl.  13.  cites  33  H.  6.  26.  in  a  Nota. 

7.  Whew  one  ha\ing  good  I'itle  to  prefent,  and  an  Incumbent  by  Ufnr- 
pation  IS  admitted,  inltituted,  and  indiiiled,  and  after  that  the  Patron 
prefents,  and  the  Bilhop  refufes,  and  after  the  Patron  recovers,  and  then 
he,  which  had  this  Prefentation,  exhibits  it  to  the  Bilhop,  this  is  now  a 
good  Prefentation  ;  and  the  Patron  cannot  revoke  or  give  him  a  new 
Prefentation  ;  but  if  the  Patron,  before  the  Death  of  the  Incumbent, 
makes  Letters  of  Prefentation,  that  is  voids  becaufe  he  had  no  Title  to 
prefent.  Hutt.  67.  Mich.  21  Jac.  Rud  v.  the  Bilhop  of  Lincoln. 

8.  If  the  Patron  prefents  his  Clerk  a  Week  before  the  6  Months  b@ 
ended,  and  the  Ordinary  refufes  the  Clerk  for  Inability,  becaufe  be  is  un- 
learned, and  then  the  6  Months  pafs  before  he  prel'ents  another  after  the 
6  Months  alter  the  Death  of  the  Incumbent ;  in  fuch  Cafe,  the  Bi/hop 
pall  have  the  Collation  of  the  Clerk,  becaufe  it  w^s  the  Folly  of  the  Patron, 
that  he  did  not  prefent  his  Clerk  before,  fo  as  the  Ordinary  might  ex- 
amine him  ;  and  that  thereupon  if  lie  be  found  to  be  unable,  that  he 
might  prefent  another  Clerk  to  the  Ordinary  within  convenient  Time, 
and  for  that  Caufeis  the  6  Months  given  to  the  Patron,  that  he  provide 
another  Clerk  in  the  mean  Timei  per  Ld.  Dyer.  3  Le.  46.  Mich.  15  E- 
liz.   in  the  Common  Pleas. 

9.  Quare  Impedit  to  the  Vicarage  of  Hufton  in  Suffex,  by  the  King 
againll  and  the  Bilhop;  the  Cafe  was  fuch,  the  King  had  the 
Advowfou  of  the  Vicarage  belonging  to  fuch  a  Manor,  by  rea/on  of  the 
Ward/hip  of  the  which  became  void  during  the  Minority  of 
the  Heir  i  the  Heir  fues  Livery  ;  the  King  prefents  thereto  undsr  the 
Great  Seal ;  and  afterwards  (without  mentioning  this  firll  Prefentment) 
prefents  thereto  another  under  the  Seal  of  the  Court  of  Hards  ;  the  lecond 
Prefentee  is  admitted,  inltituted  and  inducted  by  the  Billioj)  before 
any  Notice  ot  the  hrll  Prelentment  ;  The  King  brings  a  J^^/iiire  L/ipc- 
dit  againfi  the  firfi  Prefentee  j  and  adjudged,  that  it  lay  not  i  for  bv  Coke 
and  VV'arburton,  it  was  within  the  difpoling  of  the  Ceurt  of  Ward?,  aU 

4  P  :h-oa-h 


334- 


Prefentatioii. 


though  ic  were  after  Livery,  becaufe  it  was  a  Chatrel  veiled.  Cro.  J. 
247.  Trin.  8  Jac.  C.B.  the  King   v 


Sce(M.  b)  (P-  ^)  At  what  Time  it  may  be.      [Before  De^rhatm.^ 

1   Tjf  an  Incumbent  be  deprivablc,  VCt  tljC  l^iltrOlt  CaiTllOt  prCfCllt  mi^ 

^  otOer  to  tljc  Cljurcl)  before  IjciSDcpauca  ,  l^oc  tljc  Ctjurcljisi 
not  ^010  before.  Contra.  17  C>  3- 59  b. 
watfComp.    2.  Jif  tije  viiitor,  iij)  Commann  of  tljc  Eino;,  returns  into  €lm\- 

Inc.  Svo.       fffp  good  Matter  of  l^epriyation  of  the  Clerk  of  the  Kino;,  p^f  tjjg 

ck«Tc°  l^mff  rannot  prcfcnt  anottjcc  to  tljc  Cljurclj  before  tijiitijc  leiliepriu-- 
Butotiier-   en.   Contra.  17  €♦  3- 59b. 

vile  It  IS 

■where  the  Church  is  for  fome  Fault  or  Defect  in  the  Clerk  deckred  by  the  Law  to  be  actually  void. 

3.  If  an  Incumbent  be  created  a  Eipop^  the  firft  Benefice  is  void  imme- 
diately ;  But  if  he  takes  fxo  Benejices  inconipatible^  this  is  a  Voidance  in 
Law  or  Caufe  of  Voidance,  and  not  void  in  Fact,  to  make  the  Patron 
able  to  prefent  till  he  be  conven'd  and  deprived  by  Sentence  ;  per  Hill; 
And  fo  lee  that  the  Voidance  is  not  by  his  Aft  only  as  it  is  of  ELeligna- 
tion,  or  of  thetaking  of  a  Bifhoprick;  Qusre  ofthofeof  the  Spiritual 
Court.     Br.  Prelentation,  pi.  50.  cites  11  H.  4.  36. 


(Q^  a)  At  what  Time  it  may  be  ;  fvohere  the  Church  Is  full. 

•S.C.  Roll  I.  T  Jf  31,  e,  prefCntgi,  anti  W  Clerk  is  Admitted  and  Inftituted,  % 

XI- '  ?Roii     i  ^'  cannot  prefent  fjisi  ClcrU  before  3n5t!ction;  for  tfje  Cburcft 

Rep  6  Hill  lUaS  full  againlt  a  common  Perfon  befOtC;  ftr  bD  tlje  JnffttUttOn  i)C  W 

15  ja.  B  R  Curam  antmarum.  38  C  3-  4-  S^p  Eeporf^.  13  2a.  03.  between  * 
— .umiffion  Hitching  and  Glover ;  attO  itt  tljc  famc  Cafc  D.  15  3ia.  05.  E.  aD- 
ZtSi^ni  mopti.  D.  4  (£1  217. 62.  aDjUDgeD.  22  ip;6.  27.  Co.  6.  Eof^Mii 
more,  is     49-  b.  33  Ip.  6. 24  Co.  4. 76,  b.  Co.  7»  2.(y^   co.  6, 41^  £)a.  82^  b* 

good  Plennr-  2 1  C  4.  34,  b.  COIW.    ^'^/'f.    J28. 

ty  and  Pofl'ef- 

fion  betiueei!  comnw/i  Perj'otis  Br.  Plenarty,  pi.  5.  cites  22  H.  (i.  a:. — Br  Quare  Impedit,  pi.  i.  cites 
S.C- S.  P.  Ibid.  pi.  lo.  cit»s  55  H.  6.  24..— S.  P.  Ibid  pi.  85  cites  22  H.  6.  25. S.  P.  Br.  Prero- 
gative, pi.  20  cites  58  E  3.  S.  9  &  10.- — S.  P.  Br.  Prefcntation,  pi.  17.  cites  38  E.  5.  3.  4. 

t).  P.  Br.  Qiiare  Impedit,  pi.  6'y  cites  S.  C. S.  P.  Watf.  Comp  Inc.  Svo.    504.  cap.  26.  cites  Keilw. 

88.  Hill.  22   H.  7. S,  P.  Watf.  Comp.  Inc.  Svo.  50.  cap.  4,     And  Ibid.  51  itisfairf,  that  by  Admif- 

fion  and  IniHtution  the  Church  is  fall  ris  to  tljc  Cure  of  Souls,  and  againft  himfslf  and  all  other  Pcrfonj, 
uiilefs  the  King. 

jgawftihe  2.  But  if  a  Contmon  perfon  ptcfent0,  ann  W  Clerk  10  abnutteD 
is  no  Pie'''  ^"^  inftimtcQ  before  Sinbuctiott;,  the  King,  if  ije  \m  i^tijbt,  mapprfr 
iiarty  ivnhcnu  fcnt,  anD  W  Cletk  fljalt  be  uiffitutcb  -,  for  tlje  Cbnrcl)  iei  nut  full 

Jtiduaioii  or    a'^ainll  the  King  before  InduSion.     38  C.  3.  4.  9.  ab)Ub0eD.     CI3[> 

i.ih'iutkn;  Kcportjs.  13  Ja.  05.  bctiueen  Hnchmg  and  Giover.  ano  Ip.  15  JiH. 

^uod_nota.       -^^   j^^   j,^  jjjg  j-^jj^g  ^j^jjj-^  jjj  jiJ„iH,p5^      2^,  4  ^\^  217^  62,     22  iJ,  6> 

narty,  pi.  5     27*     33  Ip,  6.  24.   CO.  7«  26.  ^^,  6.  49.  b,  Da.  S2^  b* 

cites  22  H.  6. 

27 Br.  Qiiarc  Impedit,  pi.  i.  cites  S.  C S.  P.  Ibid.  pi.  10.  cites  ^3  H  (5.  24. — S.  P.  Ibid,  pl.tfj. 

cites  58  E.  ;.  3.  S,  9. S.  P.  Ibid.  pi.  83.  cites  22  H.  <?.  25.-6.  P.  Br.  Prelentation,  pi.  1 7.  cites  5S  E. 

3.  3.  4. S.P.  Br  Prerogative,  pi.  20  cites  38  E  3.  8.  9  &  10. S.  P.  Wacf  Comp.  Inc.  Svo. 

-93.  cap.  20. S  P  VVatI'  Comp.  Inc.  Svo.  50.  cap  4. S.  P.  And  yet  if  the  Patron  preien^-.and 

his  Clerk  is  Admitted  and  IniHtuted,  and  forbears  to  be  indafted  iS  Months,  the  King  fhall  net ''"■•leu: 
upon  him  for  .Laple,  the  Inftitution  flopping  the  Lsple  from  going  to  the  inferior  Ordinary.     .vW. 

Comp, 


Preientation.  335 


Comp.  Inc.  8vo.   191?.  cap  12.  cites  Hob.  1 54.     Colt  v.  Glover,  a;id   Gold^b.  164.  Hill.  43  Eliz.  per 
Pophani,  in  Cafe  of  Rnbbin.s  v.  Prince. 

Ill  (.^jare  Impi;dtt  it  was  agreed,  That  where  a  Bipj}  prfenis  is  the  Pre'rcnd,  and  dies  he*n-e  hduSi.n, 
hy  which  the  Temjioralties  come  into  the  Hands  of  the  King,  tliat  the  Kin^  Jhall  prt'/ent  to  the  Pre- 
bend ;  for  there  is  no  Plcnarty   againft  the  King  without  IndacVion,     Br.  Pienirty,  pL  ;.   cites  11  H, 

4.  -. So  where  tlie  Bi(hop  maket  Co!/,ith>>i,   atui dhs  before  Induftion.     And  from  hence  it   fccnis  th.ii' 

CoUftion  'With  Infiitiitic^n  is  good  Plenarty  againfi  a  common  PerJ'on,  as  well  as  Prefentation  with  AdmilTion 
and  Inftitution.    Ibid. 

q.  Eut  if  the  King  has  not  any  Right  tO  t\)t  Ci)irCf),  t\)t  C!)UrCf)  I'CS  ^  C.  .and 

fliHI)))  aDnitfTion  aim  Jnffitution  of  tl)c  CIcrh  of  n  Comnion  \3^-  Y\\'\i" 
foil,  uiitljoiit  Jiimiction  aixmiiiT  x\)t  l\m  affo,  fa  tbat  Ijc  cannot  pre-  [\.  t4'^' 
fent.  ^p  i^cport0  13  la.  1^.  lictiuccn  Hitchtug  and  Giovur.  ann  DiK  and  that  ro 
15  3!a*  ^*  H»  in  tljc  fame  Cafe  ngrecn*  '     «  i^  'f  ^e 

claims 
from  3  Common  Pcrfun. 

4.  3!f  a  ^.lU  ufurps  upon  the  King,  and  his  Clerk  is  Inftituted  and  *  S.  P.  Or 

Inducted,  tijo'  tlje  [3atronaD:c  be  not  out  of  tijc  l^inu,  ans  tlic  ixms  f:!'?"'-"""- 
map  remote  tljc  Jncumlient  bj)  a  (^uarc  impedit,  pet  *  till  Remo\ai  j^[°:,^'  ,':'• 
tlje  cCljurcl)  is  fuil  aaainft  tlje  £%utij ;  anD  fo  mitlno;  tljis  Cime  be  jac.  b.  r. 
cannot  prefc nt  anp  ofijcc  to  tlje  Cijnrcb ;  for  by  tlje  Hfurpatiou  tIjc  s  c  by 
prcftntnicnt  Hue  Vice  10  out  of  tije  liUnu*    99.  13  jfa.  15.  K.  be=  ^'"''  "^.^^ 

tluecn  t(jC  King  nndSacker  ajirCeD.  lit?.  J3a.  36.  K.  I  I),  7.  19.  Co.  ftljof  Noi- 
6.  30.  nnU  49.  b*  uich,  Cole 

'  -  -  and  S-aker. — 

Before  Remotion  by  Ou.ire  Impedit,  the  Plenarty  fhall  bind  liim  Qiioad  the  Poireffion  ;  for  Reaibn  re- 
quires that  the  Church  be  (ervcd  ;  and  one  hcirg  in  by  Prelentment,  and  accord'.no-  to  the  Ceremonies 
of  the  Church  cannot  be  put  out  v/ithout  Action.    Cro.  J.    125.    Trin.  4  fac.  6.  R.     Tiie   Kinp  v. 

Champion Before  a  Prefcnt.ition  can  be  made  to  a  Church,   it  muft  be  actually  void,  and  i's  being 

void.ible  only  is  not  fufficient.     Roll.  Rep.  215.  Per  Coke,  who  cited  17  E.  5.  SmallSCafe. 

If  a  Prebend  happen  void,  and  the  Bifhop  collates  thereunto,  and  before  Induition  the  Bidiop  dies, 
and  the  Temporalties  come  unto  the  King,  and  after  he  is  induftcd,  and  at'terward  the  King  gi.'cth  tlie 
fame  by  his  Letters  Patents  unto  another  Clerk  wiio  is  Inllitutcd  and  InduftsJ,  the  finl  Clerk  fhall 
have  a  Spoliation  in  the  Spiritual  Court  againft  the  Prelentee  of  the  King  ;  becaule  the  King  ou^ht  to 
have  removed  him  by  Q^nare  Impedit,  and  not  to  have  collated  as  he  did.  And  there  the  Patron.ige  doth 
come  in  by  Debate.     F.  N.  B.  56.  K. 

S-  So,  before  Removal  Of  tljC  ClCtl^,  t!jC  King  cannot  prefent  thcS  P.  Roll. 

fame  Clerk  U)|)o  IS  \\\  bp  Hfurpatioii ;  fot  tljisi  cauttot  eiuite  HS  a  p''P.?V' 
€«ucrcntier  anti  neui  prefcntment.   ^.  13  3a.  15.  T\.  betuiecn  tlje'^uod  fuTt 

King  and  S.ickcr  atljUOgeO.  conccffum 

per  totam 
Curiam,     S  C  by  Name  of  The  King  v.  Bifhop  oi  Norwich. 

6.  3!f  a  ^^'i^  recovers  in  Quare  Impedit  againft  the  Incumbent,  fljC  ^'"^"^^A.-'O 

Encumbent  ijs  fo  renioneD  bp  tfje  liiiliijnicnt,  tljat  tIjc  Recouerer ,  ^'"'L^- 

may  prelent  tO  tlje  CbUrC!)  without  other  Removal  of  tl)C  JUfUUlUfnt,  i"sC3^ 
HjO'  t|)C  Incumbent  continues  Incumbent  De  Fafto  till  Frclcntment  bPcordinVly^ 

ttje  ilecotjeror.    03.  12  3^a.  05.  R.  bcttoeet>  *  ivh/iicr  md  Sm-kton.  Rou  Rep'. 
RcfiiliiCb  per  Curiam.  Crin.  13  la.  ia.  E.  betiuccn  Jtiftui  ana  Dr.  f,-,  ^nd 
Hams  per  Curtain,  luitijout  mxw  to  t{)e  'Biltjop.    32  e.  3.  SiuarCd,"  nnu^ 
Jmpcbit  2.  atsnitttcB  in  Cafe  of  tlje  JtAinff.  cumb.ntcon- 

tlnues  In- 
cumbent De  Fadto  till  the  laft  Incumbent  be  inftituted. S  P.  tV'atf.  Comp.  Inc.  8vo.  5S2.  cap.  20. 

7*  But  after  fuclj  -deroijerp  (n  a  €luare  S^mpeDit  a  Stranger  to  fuch  if  ^i  stranger 

Recovery  cannot  prelent  tO  tljC  Ci)UC{)  i  tOt  nOtUlltblfaUlUnLX  tljC  Ee  '"  ''^'^  ^^^\ 
tmtS)^    pet  tl)C  JinCUmbent    continues   incumbent   De  Fatto  a0  tO  i.TTitle  b° 
©trailSCr0.     i^.  13  Iti.  113.  E.  betlUeen  Fainba/ik  and  DarKim.  belt)  fhould 

prcCent  o 
the  Church,  his  Prefentation  would  be  void,  as  being  made  to  a  Church  that  is  full.     Watf.  ComiJ. 
Inc  8vo.  5bz.  cap.  2c.  cites  S.C. 

8.  Jf  a.  nntJ  '>3.  are  Tenants  in  Common  Of  ait  SHHJOlUfOU,  aUtJ  f^""  Rep. 
tf)C  CljUrCb  ^JOlfS,  antl  u  Stranger  ufurp.s,  and  his  Cierk  inducted,  and  -■^--  ^  ^ 

A.  and 


Prefcntation. 


Adj()iT;itur.    A.  and  H.   brir.s^  Quart- Impcdit,  U\  UlijiCJJ  J^-  is  rummon'd  and  fc\er'd, 

o^i)n  T,Ic    ^"^  ^^^^^  ''^-  ''^^o^^^''^''  t'ft'^fc  otljec  Removal  Of  tfjc  Jncunibciit,  B.  can-' 

Svn  ;S;.  cap.  HOt  pitlClU  i  fOt  I)C  is  a  Stranger  to  the  Recover)  .  DUbltiUUr.  ^,  i  ^ 
2o.ci[csS.(J.  JiL  15.  K.  hCtVaCZW  l''^!>-l?tnjk  cujii  Durham. 

9.  So  III  tl)i9  Cafe  B-   cannot  alter  the  Recovery  prcfcnt  the  fame 

luii.Kcp.  p^,^j;„.,  ^j|^53  ^,^-jg  jitcunibcnt,  mmnirauift  U)l)am  tlic  3uiin;ment  is 
s  c  Ad-    UJ^ca ,  fijr  tlji<>  acceptance  cannot  niahc  tl)e  Cljurclj  \3oiD  to""aD«  t>\i- 

ioniatur-    bltattU".     93.  1 3  lA*  "B,  U*  bCtlUCCn  I'dirbankc  and  Durham. 

\\'atr.  Conip 

Inc.  Svo,  5S5.  Cap.  ;o.  cites  S.  C. 

And.  244  10* 'SnjeBifliop  collated  without  good  Title  Of  lapfC  Ot  OtljCtMC,  anU 

pl.  25-.  s  P.  .•jffo;  t}j0  Patron  dies  alter  the  fix  xMonths  paft,  anQ  tljC  Executor  brings 
xtx  o^  ^^'^^"^  inipedic  by  ifOtCC  Of  the  Statute  ot  4  E.  3.  and  tljC  l^lfljOpanD 
Saic'v  Co-     tbC  Encumbent  plead  Plenarty  by  iix  Months,  anti  atJjUtlgeD  ttO  Plca 

vcinry  and    Ujjon  Dcuiuvuci',  bccaiu'c  tbis  collation  is!  not  anp  li)lenart)^  being; 

.M.uili. —  tortious,  p.  32  CI.  'B.  Rot.  2065*  bCttDCCn  Small-ooood  anO  OtbCtS 
Cro.E.2G-.   (i3j.j.mt0r9  of  Smallwuoii,  atjatnft  tbe  Bijhop  of  Coventry  and  Litchfield. 

-Eii-'sc  ^UjuOiTcc  uuou  DcnuuTcr ;  butanotber  nBfit  brougbt  bcfote  nbat= 
and  they  all  CO,  bccaufc  it  Wx^  to  tljc  luipciiimcnt  of  tijc  'fiCcdanient. 

iicld.r'rhat 

this  is  not  a  Plsnartv  within  the  Statute  of  VV.  2.  Fot  that  muft  be  Ex  Prsfentatione,  and  not  ExColIa- 

tione;  and  the  Plaintift'iiad  Judgment. -Le.  205.  pl.  284.  S.  C.   but  I  do  not  obferve   S  P.  there. — 

4  Le.  15.  pl-5;.  S.  CL  And  it  was  held,  That  the  Executors  upon  this  tortious  Collation  might  have 
Quai-c  Impedit  for  the  Difiurbunce,  and  that  by  Equity  of  the  Statute  4  E.  5.  7.  and  that  the  Clerk 
fliould  be  removed  at  the  Suit  of  the  Executors. 


1 1 .  3'f  tbe  Bifl:op  collates  without  good  Title  of  Laple,tbiSi  DOC^nOt 

^  fhaif  be°'  1^"^  ^^^^  patron  out  of  ^^o^■el^ion,  biit  be  map  ptefcnt  after,  tt30'.tbe 

taken  to  be  <-J<?fk  ot  the  Eilliop  be  InlHtuted  and  Induced.  CO-  6,  Greene  29*  b» 
only  pro-       tWi^  Bofwell  $0.    CO.  Jlitt.  344* 

vilinn.illv 

made  for  the  Cclebiation  of  Divine  Service  till  the  P.itron  prefcnts. If  tlic  Bifhop  collates  his  Clerk 

cither  before  he  n;ivcs  Notice  of  an  Avoidance  where  'Notice  is  rcquifite,  or  at  any  Time  w  ithin  the  6 
ISfonths  limited  to  the  Patron  to  hll  his  Church,  the  Patron  may  at  any  Time  after  prelent  his  Clerk; 
for  tho'  a  wrongful  Detainer  makes  fuch  a  Plenarty  aj  fliall  bar  the  Laple  to  the  Metropolitan  and  King, 
yet  It  is  no  Bar  to  the  true  Patron  ;  and  if  the  Bifhop  admits  the  Patron's  Clerk,  the  other  is  out  Ipfo 
1^'aCto;  or  if  the  Bifhop  wi'l  not  admit  him,  the  Patron  may  as  well  then,  as  at  any  other  Time  before, 
have  hisRemedy  at  Law  ag.dnft  the  Bifhop.    Watf  Gomp.  Inc.  187.  cap-  12.   cites  Hob.  502.  Hill.  17 

lac.   Gawdy  v.  the  Bifliop  ol  Canterbury  &  al. In  fuch  Cafe  the  Patron  muft  aftually  prefent,  and 

the  Ordinary  muft  refufe  to  admit  his  Clerk  before  the  Patron  can  bring  his  Action  ;  for  tho'  the  Or- 
dinary h_s  collated,  yet  the  true  Patron  may  prefent  to  the  fame  Ordinary,  and  he  may  intlicute  &c.   his 
Clerk,   arui  then  the  two  Clerks  fhall  try  who  hath  the  better  Title.     VVatf.  Comp.  Inc.  Svo.  425.  cap 
22  cits^  Pl.  C  5-0.  Grendon's  Cafe. Watf.  Comp.  Inc.  Svo.  425.  cap.  22.  cites  S.  C. 

12.  Jf  LapfebC  devolved  to  the  Metropolitan,  flUD  after  the  Ordi- 
narv,  UJbO  baS  paf^'U  blS*  CilllC,  collates  his  Clerk  within  the  6  Months 
of  the  Metropolitan,  miB  biS»  ClCtU  tbetCUpOn  is  Inllituted  and  Induc- 
ted, jt  leemsi  tbat  tbi^  lua^  a  Plenarty  againff  tbe  l^atron ;  for  tbe 
Coilatton  10  iainflti  againft  all  e,rcept  tbe  Metropolitan,  aim  it  i0  a 
|3lcnattp  againfl  bim  alfo.  Shammer  aiTifes  at  Odatb  ni  tbe  Counts 
of@)onierret  befiirc  tbe  LorD  f  mcb,  upon  a  ilCnal  between  ^ir  Francis 

Fcfha7n,   aim  tbe  ^'P^p  of  Bath  and  Wells  anU  bl0  ©Ott  i  tBUS  U)a0  fl 

Ciuemon,  ann  fo  beiu  bp  lorti  jftncb. 
13.  Rut  a  Collation  bp  lapfc  bp  0  "Btlljop,  aim  an  Jnffitution  aim 

3'imtlCtlOn  tberCllpOn,  win  put  another  Bilhop,  who  has  the  right  Title 

ro  collate,  out  of  PoUeiiion,  anD  to  a  Cluarc  i'nipctJit  i  fo  tbat  be  can= 
not  prefent  before  tbe  Incunibcnt  is  rcuiobeo.   Co.  6.  Greene  29,  b, 

aim  Bofvcell  50,  Co.  lltt*  344^  .  .  , 

S.  C.  Cited         ij^    3;f  tbe  K-ing  prefents  Jure  Prserogativae  fuae  Ratione  Lapfus,  36  It 
Ch^°^Hob  i^  erprer^'O  in  tbe  LetteriS  patents,  where  the  King  has  not  any  Title 

i^'inthe    taprcftnt  Dp  iapfe  or  otbertuife,  anti  tbcreupon  tbe  C^ruindrp  3D^ 

taleofGaw-  tJittS,  InftltUteS  and  Inducts  the  Clerk,  pft  tljIS  tlOtb  UOtpUt  tl)f  ttue 

Ic-'atron 


Frdentation.  337 

Matron  to  Ijis^iiiare  Siuipcuit,  Intt  Ijc  map  prcfcnt ,  iot  tijc  Prefent-  Jy  v  aich- 

meiu  vv.is  void,  the  king   being  deceived  ;  ailll  tljCll  tljtS  tS  iltl  Jitffl^  c  „°^uf  „ 

tution  ann  3nmiction  luitijout  niii»  pvcfcntmcnt*    Co,  6,  Grc£»c  29,  &  ,^  ,„/ 

h*  aUjllUffCll*  fays  it  IS  to 

be  well  un- 
derftood  that  it  makes  no  binding  Plcnarty  againft  the  trucTatron  ;  Isut  that  he  niay  not  only  bring  his 

Quai-e  Iiniicdit  when  he  will,  butalfo  prelent  upon  him  7  Years  after. -WatfComp.  Inc.  8vo.   )88' 

cap.  12.  cites  S  C.   and  P.  but  adds  that  fach  Picnarry  bars  a  Lapll-  to  tlie  Metropolitan.- S.  J^. 

Jenk.  244.  pl.S.  _  •  .    . 

If  the  Queen  Non  habens  J^'^  prefentandi,  and  yet  prefents  to  the  Advowfpn  as  in  fuo  Pieno  Jure,  it 
is  a  void  Prefentmcnt  ;  tor  the  <.Hieen  was  deceived  in  her  Prclcntmenr,  whijh  made  it  mcerly  void  as 
to  the  Queen,  wiiocando  no  Wrong.  And  tlie  Ufurpation  is  onlv  in  the  Incunihent,  wlio  procured 
himrelf  to  be  inrtituted  ;  and  lie  is  the  Wrong-doer,  and  againlt  him  only  the  Quare  Lnpedit  is  always 
brought  Per  Crokc  J.  but  the  other  Juftices  doubled  ot  this  Pofi)t.  Cro.  C  j62.  Mich.  16  Car. 
B  R.  in  Cafe  of  Yates  v.  Sir  John  Dryden  8c  al. 

ij:«  3iftl)CK.ing  prefents,  and  therein  miftakes  his  Title,  as  (ffjCpfC^ 
(fnt!£j  R.ttione  Laplus  where  he  has  Title  Pleno  Jure,  tIjO'  t\)t  CICl'h  bC 
fnmtlJtEB  ant!  Induaed  thereupon,  pet  tf)i0  OOCSi  tlOt  pitt  tf)C  £imS  tO  s^  an?" 
W  €iUiil'e  3!nipCDlt ;   far  IjISi  Prdentment  is  void,  auD  tl)m  ail  3\nnp  p.  cited  Her. 

tutioii  nr.Q  jiUliUrtion  uiitljoiit  a  prefentmcnt  i^  only  as  a  CoHaLicn,  ;j-^i'^'^  5 
ana  to  tuc  Euig  not  out  of  poactliou,  i3Ut  \mw  prcfcnt  Jjcfoie  Re-  ^irhomo 

moval  OX  tlje  €iit\^,     €0,  6.   Gret-^ie  2%  \i*  HCfOlkO*  Ton's  Ca'e.- 

And  alio 

Litt.  Rep.  60.  in  S  C.  and  which  is  reported  in  the  fame  Words. S  P.  Arg  Roll  R.  256.  Mich. 

13.  in  Cafe  of  the  King  V.  the  Bilhop  of  Norwich. 

16.  Jftlje  King  prefents,  and    before   Inftitution  or  Induftion,    tl)t  ^■'^  ^''•^^: 
Jt^JtlS  lepeals  it,  and  tljCrOf  gives  Notice  to  the  Ordinary,   iUljO  aftCC,  ''»'^''  ^-  ^* 

notuutWtantimn;,  mflitutesanD  indufts  ijmi,  pet  tliel^mg  inaDpre^ 
fent  anotljcr  i  jfor  ttic  CDurclj  id  not  full,  in  a,s  muctj  ad  toerc  is 
mt  anp  ^?refcntmcnt»  D*  12.  CU  29-*  70-  wiUproue  tWJ,  m  as 

ilU;Ci}  as  a  Confimiation  to  fuch  Incumbent  maOC  bp  tljC  llUlg  is  void. 
Co.  0.  Gmnc.  29.  t).  ECfOlijell. 

17.  SoiDOUin  It  b'c  in  tl)i0  cafe,  though  tijc  ©rDiiurp  inlfi'tuteti, 

anli  induced  the  Clerk  alter  Repeal,  and  before  Notice  thereof  to  him 

given  J  iTor  tijc  jl^oticc  mabcsj  notliingto  tije  €ffencc  of  tIjc  Hepeal, 
but  onlp  to  cijanjc  tl}c  £)rOinarp  as  a  Difturber,  if  Jje  proeecas  aftec 
S'luiicc,  D,i2.  CU292.  70.  ujiu  pro\3C  tljis  in  as  mud)  as  a  Confir- 
mation to  luch  Incumbent  is  void.  25,  C.  3.  47.  aCCOtOlUglp.  Vliit  COv 
6t  Grane  29*  b» 

18.  Jf  ttiC  King  prefents  A.  ailU,  upon  RefuHil  of  him,  brings  Quare  D.  ;;c).  b.  pL 
Impedir,  aWJ  pending  this  B.  procures  a  Prefentment  from  the  King  of -J;,":  ^''!-  ^•• 
himfelt  in  Deceit  of  the  King,  aUO  tljCrCUpOU  tl)e  ©rCJnarp  inflitUteS,  vmd-d 

ana  indufts  B.  pct  tljis  uocs  not  put  tljc  l^mg  out  of  i^oiTclTioii  -,  I5x\t  The  vk-ar 
iie  mai?  prefent  Uctore  Removal  of  13.  bp  Ouarc  Inipcoit,  luas  niuclj  of  Yatton-s 
as  tl)e  <'?rcrentment  inas  noto,  ano  fo  an  Intlitution  ann  JuDuftion,  ^f  >: — • 
uittljout  anp  ii?rcfentmcnt.  (t(i,  6,  Greene  29,  ij,  havinJfTi'dc 

to  the  Ad- 
vowfon  of  M.  prelented  oneW.  The  Prefentee  being  difturbed  procured  Qiiare  Impedit  &c.  After  which 
one  S.  obtained  a  fecond  Prefentation  to  the  faid  Ciiurch  ,  notwitlifl.mdiiig  which  W.  procured  the 
Biftiop  to  admit  and  inlHiure  him,  and  a  Mandatum  to  have  him  inducted,  and  after  Judgment  was 
given  for  the  Queen,  V^'  was  indudted,  and  Writ  awarded  after  this  to  the  Bifhop,  and  tl)e  Opinion  of 
the  Juftices  was  in  this  Cafe,  that  the  firft  Prefentation  was  repealed,  and  become  void  And,  3S.  Mich. 
15  8c  16  £1jz  Anon. 

19.  If  a  Man  prefentsin  Time  of  War,  anU  t!)e  PrefeiltCC  IS  inlli-  WatfComp. 
tuted  and  inducted  in  Time  of  Peace,  pcttljlS  fiiall  lUt  pUt  tIjC  \pmOl\  ^^''-  ^^°- 

to  tiiS  Square  JmpcOit,  Intt  tljat  Ijt  mav  prcfcnt ;  J-'or  tijis  is  but  an  ci^is'c  & 
Jnftittttion  anU  InOuction  U)ltbout  anp  i^rcfcntment.  Co.  6.  erecne  2  Rep.  9; 

30.  BiCC  6,  C.  3.  Bingham's 

Cafe — S.  P. 
And  though  the  Prefentment  be  in.  Time  of  War,  and  the  Cler-k  is  admit'ed  thereupon  in  Time  of 
Peace,  yet  the  Law  gives  regard  to  the  Original  Aft,  that  is  to  fay,  to  the  PrelcntmrRt,  and  all  that 

4  C^  ,  follows 


33B 


Prefentation. 


follows  thereupon  fhall  be -.ivoidcd,  as  being  conftiued  to  be  in  Time  of  War,  and  flidl  not  put  the 
rightful  Patron  out  of  Po(Tc(Tjon.  Watf  Comp  Inc  Svo.  no.  cap.  13.  cites  6.  E.  3  41.  6  Rep.  3oGreen's 
Cafe,  2  Rep.  95.  Kingham's  Gile,  &  i  Inft.  249.  b. 


WatrComp.       -o.  Jf  a  Stranger,    without  Title  prefents  by  Tort  tO  tttp  CIjUCCi) 

cap  20  °cic«'  ^^^*^"^ff  "^^^^  ^y  ^••T>o"v,  and  6  Months  pafs,  pet  31  tiiii})  after  prcfent ; 
5.C.         iTor  ttjc  *>tatiite  W  mane  tljc  prcrentincnt  :inftitution,  ntto  induc- 


tion ijoiti,  nuQ  fo  !)e  IS!  not  Incumbent,  nor  tlje  CljurcljfiUU  co* 
litt.  120. 

21.  3^  it  Lapfe  devolves  to  the  King,  anU  ilfteC  the  inferior  Ordinary 
collates  Br  tljCLi^pft,  and  his  Clerk  is  inltituted  and  indufted,  Jt  feCtnSi 

tljat  tW  tJOCEi  not  mnfec  anp  13lenartP  agamft  tijc  Htnn;  to  put  Ijim 
tc  W  Ciuare-jmptDit,  but  tyat  Ije  map  prcfcnt  ano  otifttlje  Clerk  of 

*  See  pi.  II.  ti3CfiDrt»marpi  for  uiljen  tapfe  ismcurreD  to  tbe  i^mn;,  tijis  cannot 
be  taken  aiUiipbi't]jE©rDmarp,  ana  tijenuiOra  tlje  *£Drtimarp  col= 
Iatc0  uiitliout  ixooo  Citle,  tljis  Doc»  nat  make  an]>  [♦JIcnartD  asatnff 
Ijim,  uifto  Ijae  tlje  EiSOt  ag  tbe  l\m  ()^si  to  prefcnt  -,  Jf  or  lapfe  i\v 
currco  to  tlje  l^ma;  iiS  not  like  to  a  Lapfe  (ncurreo  to  a  Metropolitan, 

Hob.  168.       22.  :jf  a  90m  be  prefentcti  inftituteo  ano  induaed  to  a  Cljiirclj  by 

Pafch.  14      Simony,  tho'  it  be  void  as  to  the  King  and  the  Parilhioners,    yec  it  ($ 

comb^l'the '  ""t  ^015  "'  ^"  ufurper ;  jfoc » s@an  witljout  Eigbt  fljall  not  prcfent 
BifTiopof    tbetcto*   i;)obatt'i£S  Ecport0, 227. /F;//f>^fo/«^'j  Cafe, 

WintoiT  & 

Pullefton.— WatC  Comp.Ijic.  Svo.  5S3.cap.  cites  S.  C. 


Br  Quarc  23.  Where  an  Jdvowfcn  is  aliened  in  Mortmain,  the  immediate  Lord 
Impcdit.pl.  fj^^y  prefent  within  the  Year,  tho'  the  Chnnhbe  juil  by  6  Months  before  his 
70.  cites S.C.  ^n^jj^g  Impcdit  brought^  fo  that  he  brings  it  wtthm  th^  icar  i    Quod  nota; 


Bv  the  Infi-      24.  A  Man  may  be  Parfon  without  biduilion.    Per  Newton  Br.  Quare 
<«>wna^lan  imnedit.  pi.  S^.cites  22  H.  6.  25. 
is  PaHbn  ^  r        J 

,u:ithoi<i  tukhig  any  Profts.  Per  Afcue.  Br.  Quare  Impedit.  pi.  83.  cues  22.  H.  6.  25 S.  P.  Br.  Dean 

and  Chapter  pi  9.  cites  22  H 


•  I- 


S.  P.  Comp.  25.  If  the  Incumbent  reftgns^  and  the  U fnr per  prefents  within  6  Months, 
Inc.Svo.  t86,  and  is  in  for  6  Months,  no  Notice  being  given  ot  the  Relignation,  yet  that 
'■^'  s^C  '&  ^^^"  '-''"'^  ^''"j  ^"^^^^  ^'^^'^  "^  put  to  his  Right  of  Advowfon;  Otherwife 
Hob  mS  it  the  Ordinary  had  collated;  Becaufe  the  Inditff ion  is  notorious  to  the 
Sir  wlliiam  Country,  and  the  Patron  ought  to  take  notice  of  it  at  his  Peril^  to  prevent 
Elvis  V.  the  the  Ufurpation  by  an  Stranger.  Noy.  65.  Pafch.  39.  Eliz.  Servien  v. 
^/^fjj'^^  Bilhop  ot  Lincoln. 

otherr  ^"  26.  Admiffion,  InlHtution,  and  Induftion  without  Prefcntment,  \s 
merely  void,  faid  per  Williams  J.  to  have  been  fo  adjudged  in  the  Cafe 
of  Green  v.  Baker.  Cro.  J.  252.  Mich.  8  Jac.  B.  R.  Cale  of  Hunfton  v. 
Cocket. 

27.  Admiffion,  Inftitution,  and  Indu£lion  of  one  who  is  mere  Laicns 
is  not  void,  but  voidable  ;  and  till  deprived  the  Plenarty  remains.    Per 

Holt  Ch.  J.  Cumb.  202.  Pafch.  5  W.  &M.  B.  R.  Dr.  Harfcot's  Cafe 

Poph.  37.  in  an  Anon.  Cafe. 

28.  In  all  Cafes  when  the  Church  is  not  otherwife  filled,  than  by  In- 
liitittioH  and  upon  a  void  Prefentment,  or  by  wrongful  Collation  (except  the 
Collation  be  made  upon  him  that  hath  Right  to  collatej  tho'  the  Clerk,  by 
whom  the  Church  is  filled,  has  remained  as  Incu?nbent  for  feme  rears,  yet 
if  after  the  Patron  prefents  his  Clerk  to  the  Bilhop  his  Prefentment  is  net 
I'oid,  but  the  Biihop  may  and  ought  to  inftitute  him  thereupon,  and  the 
Inllitution  fhall  be  good  to  the  Gulling  of  the  other  Incumbent,  and  if  the 
Bilhop  refufe,  the  Patron   may  by  Suit  recover  his  Prefentment.  ^V'atf 

Comp.  Inc.Svo.  384.  cap.  20.    cites  6  Rep  22.  Green's  Cale and 

6  Rep.  50.  Bofwell's  Cafe — &  Co,  Litt.  344. 

29.  If 


Prefen  tation.  339 

29.  If  a  Church  be  once  duly  filled  of  a  Clerk,  /^o'  />&f  Clerk  he  alter  rt'c- 
privable^  yet  tt  till  fuch  Time  as  he  is  aiElually  deprived,  the  Patron  may 
notprefcut.     VVatf  Comp.Inc.  8vo,  384.  cap.  20, 


(Q^  a.  2)  PknarPy.     By  aubom  to  be  pleaded,  and  in  ivhat 
Qijes  it  is  a  good  Plea. 

I.      AS  well  the  InnnnOent   as  the  Patron  may  plead   Plenarty  by  6  ^""^  /'"" 
/\  Months  the  Day  o^  the  Writ  purchaied.    Br.  Plenarty  pi.   14.  ^^^,^  f^^" 
cites  Fit2.h.  Quare  Impedit.  32.  47,  48,  49  &c  189.  Quare  impe- 

dit  but  the 
Patrcr-,  or  he  lihci  is  fyi-Jhited  by  Laffe.  Fcr  Belknap,  But  per  Parry  at  Common  Law  the  Fncii»:ietit  might 
have  pleaded  tliat  he  u-as  in  of  the  Prefentnrent  of  the  Plaintiff  him/elf.  But  Kct  of  the  Prefentmeut  ot  a 
*  Stranger,  Qnod  Belknap  conceffit.  Br.  Plenarty,  pi.  12.  cites  Fitzh. Incumbent,  pi.  4  2  K.2. —  *  S  P.That 
Plenarty  hy  6A'Unths  of  the  Prefcntmentof  a  Strai.perh  not  Plea  for  the  fmunwent  to  plead  per  tot.Cur.  For  It 
is  not  to  the  Writ;  For  he  does  not  give  a  betlcrWrit  againit  any  Perfon  certain  ;  Nor  it  is  not  to  they^llion; 
For  he  does  not  make  to  himfclf  any  Title  to  the  Patronage,  Br.  Pienarty,  pi  9.  cites  16  E.  4  !  l.  —  S.P. 
Nor  Jor  any  cthsVlnitfor  tin:  again/!  lihom  the  Writ  of  Riff)  t  of\Jdici:.fcn  ties,  which  is  againft  none  but  the 

Patron    per  tot  Aijjr.    Br. Quare  Impedit   pi   154.  cites  S.  C. S.P.  br.  lenarty,  pi  f>.  cites  ;8  H.  6. 

20. IftheCSfcrk  of  a  Stranger  be  incumbent  of  a  Church  by  the  Space  of  6  Months,  hy  Admiirion 

and  InlHtution  only,  upon  his  Prefeniation,  this  makes  a  Plenarty   without    Induction.   Hill.    22  H,  7 
Kelw.  88. — And  the  Patron  may  plead  Plenarty  againft  all  Common  Perfons.  Watf  Comp.  Inc.  &VO.504. 
cap.  z6. 

2.  lt'mv^^/iceJlor.j  7'enant  in  'tail  pre  feats  ^  and  after  a  Prior  gets  the  fame  ^"t.'f  "  '^'^^" 
Advowfou  and  ijpprcpnates  tt,    and  holds  in  propL-r  Uie  ly  Licence  a  -Pifar  ;''';'   P'^J^"'f 

I         r\  1  ,         /I  I  I  1  ^jr-r         r  'r\  t^       r  tott,    ami  the 

and  a  Day,  and  my  ylncejior  die$^  1  may  have  Aline  or  Darreign  Frejent-  church  is  full 
ment  or  J:^uare  Impedit  at  any  Time  ^  lor  non-  the  Advowfon  is  always  by  this  by  6 
fulJ,  and  this  is  a  Prefentation.     J3r.  Prclentation.  pi.  8.  cites  46  All.  4.  ^i^o>>ths  i»ihe 
Per  Finch  J.  ^nmecfthe 

J  j^ncejlor, 

then  the  ItTue  fhall  attend  'till  the  Church  voids.  Br.  Prefentation.  pi.  S.  cites  4(1  Aff.  4.  Per  Finch.  J. 


fet 

Chan 

force  of  which  he  was  admitted  6  Months  before  the  Writ  purchased,  J'jdg-  'mAfleaded 
ment  ii  A£lio  &c.  Per  tot.  Cur.  it  is  a  good  Plea  tor  the  Patron  himfclf  Plenarty  ge- 
■without  Ihewing  other  Prelentment  in  him  before  ;   But  per  Danby,  yet  kj"*  f     \ 
this  does  not  lie  in  the  Mouth  of  the  Incumbent.  To  which  it  was  faid,  tlie  Prefenta- 
that  the  Plea  was  good  by  the  Incumbent  in  this  Cafe.     Quaere  Caularn,  tion  of  one 
Becaufe  it  feems  that  this  Plea  is  tor  the  Patron,  and  not  lor  the  Incum-  A-  aStranger 
bent.     Br.  Plenarty.  pi.  4.   cites  22  H.  6.  25.  VTih!''^'' 

Court  held  the   Plea  naught,   becaufe  the   }')z{cnd3.m  Jheived  no  7itk  in  J.   Brownl.  16-    Cranwell  v. 

Lilter  ■ Noy  :;o.  S  C  by  Name  of  Lifter  v  Crameel.     But  had  he  ple.ided  Presentment  of  the 

Plaintiff  himfelf,  or  Collation  by  Lapfe  to  the  Ordinary,  there,  he  need  not  make  any  Title. •  Watf 

Comp.  Inc.  Svo.  5 16.  cites  S.  C. 

4.  Parfon  hupdrfonee  cannot  plead  Plenarty  againfl  a  Stranger  Patron  ;  S.P.  Br. PIc- 
fbr  the  Pleading  is  given  by  the  Statute  oi  Wefimi'njler^  cap.  5.  that  the  "•^"^^.P^'^^ 
Church  is  lull  by  6  Months,  before  theW'rit  purchas'd,  of  luch  a  one  by  t.^ /  ^j^^j 
Prefentation  ot  fuch  a  one  ;  which  Parfon  Imparfonce  cannot  plead,  tor  Plenarty  by 
he  is  not  tn  of  any  Prefentation.     Br.  Plenarty.  pi.  7.  cites  38  H.  6.  20.  "arCon  Im- 
39H.  6.  21.      Pcr'Plifot.  parroneeis 

'  no  Plea  

S  P    Br.  Prefentation.   p!  •;<S.  cites  %f)  H.  €    20. Br.  Quare  Impedit.  pi  14  cites  S.C. S.  P. 

Fin  Law.  Svo.  \<j--  S.  P.   VA'atf.  Comp.  Inc.  Svo.  515.  cap.  2rt.  cites  22  H.  6.  14    58  H.  6.   20 

and  16  E  4.  1 1    and  PLC.  501.  (JJrCUOCn'fi  taff.  •  But  Per  Piifot,  in  ^<are  hnfedit  a.^ainft  Parfon 

Inaparfonee,   Plenartv  of  himfelf  by  a  Year  a-.d  a  Day  before  the  VS'rit  iniTciiavd,  i:,  a  good  Plea,  if  it 
was  lav.fuliy  appropnated      Br.  Plenarty.   pi  0. 'cites  5S  H.  (J.  20,. 

5.  Nate^ 


340  F  rcfentation . 

5.  NotCj  a'/f7e»  ^/'fr^  is  no  Patro/i,  as  "-jibere  the  Prior  is  a  Priefl,  aud  is 
admitted  to  his  own  Benefice  ;  or  where  ;;;;'  Jdvowfon  is  aliened  tn  Aiort- 
niain,  and  apprrfriatcd  to  a  Religious  Houie,  ;ind  the  like  ;  In  rhofe  Ca- 
ics  1  may  have  Quare  Impedit,  .and  there-  PJeoarty  by  6  iMonchs  is  no 
Plea.     Br.  Plenarty.  pi.  10..   cites  14  H.  8, 
Di-.Watfon        6.  Plenarty  hy  6  Months  «/)o«  ^«  hiftitiitinn,  where  the  InlHtution  is 
'h'^\^r""     made  upon  a  Pre fcrit incut ^  is  pkadalle  hy  Al  Perfons  againit  a  Common 
pofes  ^hir    Pc''^ori  j  yet  a  Plenarty  by  mere  Collation  is  not  pleadable,  but  the  Patron 
Plenarty        may  bring  his  Writ  and  remove  the  Collatee  at  any  Time.  W'atf  Comp. 
upon  ;t  void    Inc.  H\o.  505.  cap.  26.  cites  Stat.  Well., 2.  cap.  5.  3  Cro.  297.  Mich.  32 
Prefentment  ^  ^^  £|j^   (>  g  Smallwood,  Cole  and  Sale  v.  the  Billiop  of  Coventry 
abicT  ior      anfi  "-^^^flii-     Jenk.  Cent.  7.  Cale  7.     6  Rep.  49.  Mich.  3  Jac.  Bofweirs 
then  tlie         Cafe. 
Clerk  is  In- 

•  cumbent  as  it  were  by  Collation  only;  but  when  it  is  fiid,  that  Plenarty  by  Collation  is  not  pleadable,  it 
i.s  to  be  limited  as  to  fuch  who  have  R  ight  to  prefcnt,  but  not  to  fuch  who  have  no  R  iglit  to  collate  ;  for 
Plenarty  by  Collation  puts  him,  tlut  hat  the  Right  to  collate,  to  his  Writ  of  Right,  and  is  ple:idable 
agaiiid  him  that  hath  the  Right  of  Collating.  VVatf.  Comp.  Int.  Svo.  5- v  cap  2.6.  cites  i :  E.  3  64.  b. 
Dean  of  Lincoln's  Cafe And  6  Rep.  4v,  50  iMich.  5  jac.  in  Bofwell's  Cafe,    And  2.  Inft.  35;. 


Sce(Fa.;)(R.  a)      At  what  Time    It    may  be.       \_ffi'jere  there  is 

yilkmUioriy  D'tljcijiii  &c.] 

S.  p.  Watf: 

Comp.  Inc.    i.T  Jf  a  Man  be  difleifed  of  a  Manor,  to  which  ait  ^OUOiUfOlt  10  tip 

Svo.  180.  A    pentltint,  lanQ  alter  the  Church  voids,  ti)C  Dilleilee  map  pCC^irnt 

cap,  II-  tljcrcto  before  Re-entry  into tljfS^anor,  UtMt  ij!0  €mti>  IS  coa= 
geable  into  nnj?  \i>m  *  of  tije  ^anor,  19  ip*  6. 33.  16  e*  3-  ^uaic 
3!Uipc5it,  146  contra  39  €♦  3- 21.  lu 

where  his 

Entry  into  the  Manor  is  not  taken  away,  he  may  prefent  to  the  Advovvfon  ;  Per  Prifot.  Br.  Qiiare  Im- 
pedit pi.  1 1.  cires  33  H.  6.  32. i.  P.  by  Pollard  J.  Kclw.  169   Mich.,  (5H.  8.  —  ButSrooke  (ui 

I'upra)  makes  a  Quarc  thereof,  becaufe,  he  lays,  it  fcems  he  cannot  make  Title  without  the  Manor. 

If  ^  Man J'eifed  ot  Land  and  oj  Jdnionvfon  appendant  bt  diffeifed  of  the  Land,  and  the  Advowlon  voids,  he 
fhall  not  prefent  to  the  Advowfon,  for  he  cinnot  make  'T/tle  ;  for  if  he  intitles  himfelf  as  to  the  Advow- 
fon  in  Grols,  then  the  Dilleifor  fliall  make  a  L:fing,  faying,  that  A  B.  was  feifed  of  the  Land  to  which 
Sec.  and  iufeotf 'd  him  &c.  Abfque  hoc,  th.it  it  is  in  Grofs  &c.  And  if  he  claims  as  Appendant,  the  other 
lliall  fay,  that  A  B.  was  leifed  of  the  Land  to  which  &c.  and  infeofF'd  him,  Abfque  hoc,  that  the  Dif- 
it'ifce  was  feilcd  at  the  Time  of  the  Avoidance;  Per  Danby  ;  But  per  Littlcon,  a  Man  who  isdidl'ifcd 
of  the  Manor  or  Land,  may  feife  Villein  Regardant,  and  may  enter  into  any  Parcel,  and  therefore  may 
prefent,  but  cannot  have  Common  Appendant  without  an  Entry.  But  per  U.inby  Ch.  J.  Advowfon  is 
not  Parcel  of  a  Manor  but  appendant,  and  therefore  a  Diverfity  ;  for  Diffcifee  may  enter  mo  ant  P.val, 
but  not  into  the  Wppendancies  without  the  Manor  or  Land  to  which  &c.  And  tho'  the  Advow  fon  may  be  fc- 
vcr'd  and  made  in  Grofs,  it  ought  to  be  when  the  Owner  is  feifed  of  the  Land  to  which  Si^c.  but  tiot  by 
Prefentment  when  he  is  out  of  Pofjefpon  ;  Quod  nota,  good  Reafon  ;  and  Needham  J.  cum  illo.      Br.  Pre- 

fentation,  pi.  50.  cites  9  E   4.  35). .  ,^mi  where  Tenant  for  Life  r.liens  the  M.ivcrin  Fee,  he  in  Rever- 

fion  cannot  prefent  to  the  Advowfon  before  he  has  entcr'd  into  the  Minor  \  Per  Needham  J.  But  per 
J^Iovle  the  Seifin  Tempore  vacationis  is  not  traverfable ;  and  fo  Littleton  and  Moyle  againll  Danby  aiid 

Jvieedham  8cc.  Ibid. —  If  an  Mtjowfon  -^ds  in  the  Tune  of  a  Dijfeifor,  and  the  Dtjfeifee  re  niters    before 

Prefentation  made,  the  Diileilec  may  prefent  and  fhall  have  Qiure  Impedit.  Br.  Prefcntaiion.  pi.  41. 
cites  2  H.  7.     Per  Townfend  ;  quod  non  negatur. 

Watf.Cx)fnp.  2.  So  if  Leflee  for  Life  of  a  Manor,  to  which  an  ^HtlOlDfOn  i&  ap-- 
I"c-S^°i^°  pennant,  aliens  the  Manor;  anU  aftCt  tlje  Church  voids,  tijC  Lefl'or 

s^c:'andT6 '"'ly  v^^^'^^^  before  Entry  into  tljc  ^anot  fof  tJje  jforftiturc,  I)cca«fe 
E:3.  Qiiarei)(jjentr})issconi5eabIc(ntoani?l9art,    i9ii)>6. 33.  i), 

Impedit.  146- 
Contra  39   E.   3.  21. 

3.  So  if  DilTeifor  Of  a  90anOr,  to  ioIjiClj  $€♦  aliens  it,  and  after  the 
Church  voids,  tljC  Dilfeilee  may  prefent  ttjCUetO  bCfuiX  (Sntl'P  liltO  tlje 

ajanot.   19  P*  6.  33.  b» 

4-3;f 


Prcfcntation.  o^^i 


4.  3f  Leiiec  lor  Lite  cl  n  Manor,  ro  which  HlX  l^tHJOUlfOU  IS  ^ppCll-^  Watf  Comp. 
tiant,  aliens  one  Acre  with  the  Advowi'cn,  DP  lUljlCij   tljC  l^iDliUlOlOll  10  ''"^  i^^o-'.^'-^- 

appencant  to  tfjcacrc,  nnn  after  ti)e  church  voids,  -qcdc  Lclfot  mnps'c"'  """^ 
prcfcnt  lictorc  C-ntrp  into  tl)C  acre,  becaufc  W  €ntrp  is  conacablc 
into  anpp«itt  foe  tljc  jforfcitiirc.    Contra  1 8  e.s-  44-  tpJCfuet 
^p  Reports  Contra, 

,  5.  3if  Baroii  tic  Itifed  ofa  Manor,  to  which  an  ^DbOlIiron  IjS  appCn= 
liant,  jointhMvich  his  Wile  for  Lile,   and  aliens  one  Acre  uich  theAd- 

vovvion,  III' Uiljicl)  t!jc  an\jOU)fan  is  appentiant  to  tljc  Slcre,  and  dies, 

anti  after  tijC  CljlirClj  \)OHlS,d)C  l^'cme  cannot  preient  belore  the  Acre 
recontinued.     17  C*  3-  5-   i9-     ^5)110^0,     COntra  22  C,  3- 7-     &t- 

Dcrf,  23  am  s. 

6.  tut  it  the  Alienee  aliens  the  Acre  tO  anOtljCt,  flivin^  the  Ad- 
vowfon,    auD  after  Baron  dies,  tIjC  ifCUlC  maP  prCfCHt  to'  tljC  nCJt 

a\30ltiancc  i  bccaufc  fijc  fljall  not  recover  tljts  lyitl)  tljc  acrc»    17  €♦ 

7.  So  If  ti)C  Baron  had  alien'd  the  Advowfon  as  in  Grofs,  and  ati:er 
aliens  the  Manor  to  another,  and  dies,  tljC  JfCillC  ntai>  ptCfCilt  tO   tijC 

^lOlioiuron,  uiljcn  it  psoitis,  bcii^rc  t!)e  ^anor  rccontintico,  bctauie  it 
tSm^Drofs*   Contra  17  C,  3-  19-  &♦ 

8.  3if  a  i'eme  t)C  endow'd  of  the  third  Part  of  a  Manor,  and  of  the 
Advowfon  appendant,  and  after  another  Baron  and  Feme  purchafes  the 
whole  Manor ;  and  aftCt  tfjC  Baron  aliens  one  Acre  Ct  tl)t  ^anOt 
with  the  Advowfon  appendant,  ailtl  after  fecond  Prefentment  pafs'd 
ti}e  Baron  dies,  anD  Tenant  in  Dower  dies,  'iS)\)t  Feme  may  prefer.t  to 
the  third  Prefentment  tho'  flie  has  ncjt  reconcinued  the  Acre  ;  bCCiUlft 

tlje  SDHomfon  bp  tfjc  micnatton  conlQ  not  pafs  as  appcnlsant  to 
tlje  acre,  inafimicO  as  tlje  Qdaron  baa  onli»  a  Eciierlion  tijcrcin 
at  tlje  Cinie,  23  M,  s,  aojuogcn,  2z  €.  3.  1*  aojuauco* 
^anie  Cafc, 

9    3if  Tenant  in  Tail  of  a  Manor,  to  \\  hich  an  aBtJO'ttlfOrt  I'S  ap=  s  P  WatH 
pen5ant,  difcontinues  one   Acre  with   the   Advowfon,   and   dies,  ailD  Comp.  Inc.. 
atteC  tijC  CbUrCi)  llOItiS,  The  Ilfue  map  prCfent  before  the  Acre  re-^vo.  135. 
continued  i  becaul'e  the  Difcontinuee  never  prefented  after  the  Difcon-^P^-,'^*^^" 
tinuance,  tijlS  hZUXt^  tljC  f^rlt  Voidance  aftCT*     34  C*  i-  duate  JUV  Lm.-,53.  b'. 

pCHit,  179- 

10.  Jf  Tenant  for  Life  of   an  Advowfon  in   Grofs  levies  a  Fine '^ee  Eftate. 

Come  ceo  &c.  tljCtrOf,  aitH  aftCt  tIjC  Church  voids  bj)  Dcat!)  Of  tijC^^'')  ^1'- 
JnCimibent,  or  OtberlUlfe,  before  any  Claim  made  by  him  in  Rever- j^^'s'^^^TP' 
lion,  but  after  he  in  Reverlion  prefents.     Jn  tbiS   CafC  l)t  fljaU  notcap'io  dies 

balic  tbis  prefentment,  tboui^b  tbc  lebpinn;  tbe  Jfinc  toas  a  Forfei-  s.c-watf. 
ture,  vet  ttU  be  in  Eeiicrfion  bns  mane  bis  Cleaion  to  taJ-ie  ao- '^"•^p  ^"'^ 
UntaQt  of  tbc  iforfeiturc,  tbc  Cltate  of  tbc  Cenant  for  Life  is  not  l""'^-  ,'f '^j,^, 
ticitrop't!  nor  enr.en  i  am  be  migbt  ba^e  tahen  aoijantasje  of  tbe  jFor^  <."  c  —  jo 
fiitiire  b\>  bis  Claim  in  tbc  life  of  tbe  3lnciimbcnt  i  anu  inafmucb  as'be  3S9.  s.  c. 
511)  not  hiCiU  bis  Claim  before  tl)t  Dcatb  of  tbe  Encumbent,  tbc  pirC' 

rent  13rCfCntiriCnt  was  a  Chattie  veiled  in  theLeffee,  UlbtCb  CanilOt  DC 

licticltcli  after  bp  tbc  prefentment  Of  bim  in  Ec^erfion.  Crtiu  13 
€a':^  13.  E.  bctiucen  spn»g  anD  Sir  JhUhs  Cvfar.  per  Cnriam.  an^ 
iiiUnxt!  in  mrtt  of  error  upon  a  3iuiHjmcnt  in  1i3anH  m  a  Ciuare 
3mpcl3it. jmi'iUur*  05tc(),  "Car, 


4  R  (S. 


342  Prcfentation. 


(S.  a)  What    fhall    be  a  good  Prefentment.     How  it 

may  be. 


ing  onlv  a'    '^    A   ^''"""°"  ^"^°"  "'^P  1^^^^^^"^  tO  fl  CljUtCl)  by  Parol.  CO.  L(tt» 

tion  ofa  fitCIerk  totheOrdinaiy.     Watf.  Comp.  Inc.  Svo.  590  cap.  20. 

2*  Jif n  Common  perfon  prcfcnts  to  n  Cljurcfj  by  writinc^  yet 

this  IS  not  any  Deed,  but  only  in  Nature  of  a  Letter  tO  tljC  'BlfljOuTcO, 

iLUtt   I2o» 

See  pi  4  in       3*  CfjC  King  \\m  prefCUt  to  a  CfjUrtl)  by  his  Letters.  2  (£.  i  l!?rif- 

theKotes.    patanium  09cmbrana»  5- 

Frrthe  Pre-    4*  C|)£  King  uiaj)  ptefeut  by  Parol  uiitljaut  prcfciitment  m  mnt- 

^^^'^'j:^^,^\m*  ■^9€*i-  ^\\mm^yiit*(>o.   agcecD.  Co.  jiitt*  120. 

and  the   Direftion  i^  to  the  Bifhop,  and  though  it  b:  by  Writing  it  is  no  Deed,  but  onlv  as    a  Lettei- 
to  the  Billiop,  and  this   is  the  Reafon  that   the   King   himfelf  may  prefent  by  Parol.   Co   Litt    no 

■ ''  ''  °"'y  3  Commendation,  or    Declaration  of  the  King'.s  Will,  which  mav    be  by  Parofcrn 

T.  248.  Trin.  S  fac.  B  R.  pi.  7.  the  Kinjr  v for  the  Vicarage  of  Hunfton  in  SulTev  . -S  P 

Mo.  874.pl.   1221.  m  Cafe  of  the  King  v.  Bifliopof  Lincoln  and  King. 

See  CO.)  pi.        5.  Jftl)c  King  be  deceived  in  his  Title  OflJltrcntment,  tl)!S  IS  a 

pt;,'oU"ve  iJCiD  prcicntmciit.  Co,  6.  &.....  29.0,  aojungcn.  Diibitatur  D, 

(O.  bjpl  5,  i6<izu  327.  6. 
4.  &c. 

6.  JftljCKingirrantS  a  prefentment  bv  his  Letters  Patents  bp 
t!)CfC  USOtOSi,   (Damns  [&]   Concedimus)  UJItljOUt  anp   J©erC0  Of 

Prefentment,  vet  it  feemsi  tOat  it  fliaiJ  amctiut  to  a  prefentment, 
anrs  a  pen  Jisarrant  to  tOc  QSifijop  to  mmtiite  fjim  $c.  Dubita' 
tm%  19  e.  3-.2:iuarc3Pmpemt*  60. 

And  though      7.  Prefentation  by  Corporcitiou  ought  to  be  ly  Writing.  Br.  Prcfentation 
a  Corpora-    nj.  23.  cites   14  H.'S.  2.  pcr  Broke.  '  ^ 

t!on  made 

their  Prefentation  ijy  a  urovg  ?vf^w?  of  Incorporation,  yet  it  was  held  good.    Cro.  J.  248.  pi.  -    Coke 

faid,  it  was  fo  ruled  in  the  Dean  of  Norwich's  Cafe.      '  •  t  ■  ,■        ■ 

8.  11  a  Man  prefents  jid  Rc^oriamy  it  is  as  good  as  if  he  had  prefent- 
ed  Ad  Ecclcfiam.  Cro.  J.  248.  pi.  7.  Coke  laid,  it  had  been  fo  ad- 
judged. 

9.  If  the  King  do  m///)' the  PoflefTion  oi: the  Incumbent,  Ita  quod  in 
nullo  Gravetur,  this  is  now  as  a  New  Prefentment  ;  per  Coke  Ch.  I.  3 
Bulf.  90.  Mich.  13  Jac.  in  Cafe  of  the  King  v.  Sakar. 


(T.  a)    Revocation,     IFho  may  revoke  his  Prefentation. 

*  Br.Quave  I.  r-pJDe  King  xm  tc^o^tc  IjiQi  Prcfentation.  14  e.  3-  €luarc3im= 
i^cii^s  ^  ^t^\t^5-  28  e,  I  Rot,  patentmm,  a^cmb,  24.  2  e,  2. 
t~l<t\-. Hot, patentium, part  i. ^. 3.  D,  is.  CI.  34s.  12.  lit?.  jQa,  3?- 

thefecond     (C)  271.  (D)     D,   12.   CI.  292.  70.  IjC  nutl)  before  Inlricution.     25 

Preientment  c.  3-  47-  aomi'tteD  ann  aDiiHigeii.  *  7  D,  4^32.   '£>.  l(>.  C!.  327. 4. 

the  firft  m»/  ^j^er  Letters  obtained  tor  Admiifion,  Inllitution  and  Induction,  and 
and'the Plea- before  Execution  thereof  14.  C,  3-  ^HiatC  JUipemt  5- 

{urc  of  the 

King  to  revoke  it ;  otherwifc  it  is  a  Deceit  of  the  King  and  void.  Arg.   5  Lc  242.  cite.'!  D.  5^9.  The 

Vicar  of  Yatton's  Cafe — ; If  the  King,  before  Admiffion  of  the   hVlf  Prefcntee    pi-efetii.s  .mother, 

without  Fraud  or  Covin  in  the  Tecend  Prdente?,  fuch  Rcciwl  is  not  necelfarv  ;  But  if  the  ij.'^  Prs>.' 


j^refeiitatioii.  04.9 


fentcs  be inftituted,  then  fuch  fecond  Prefenration  is  no  Repeal  of  the  forjr.cr,  without  recrta!  cf  the 
foriiier  Prifeutntion,  and  the  Jdinijjlon  aud  /njtitiitioti  thereupon  ;  and  alio  there  ought  to  be  an  exprt/s 
Claiije  of  Revoc.^iioyi  oj  the  frjl  PrefejttweiU,  arid  of  the  jidrntjjlon  a)ui  fiiftiiiition  thereupon  mentionc^d  l:i 
the  lecond  Letters  Patents  of  Preienrment.  J).  ;;9,  Marg  pi.  47.  fays,  T/O/j  £';_fcif;.v«  wasadjudjj;-'!. 
Pafch.  9ja.  in  the  Exchequer,  between  Calvert  and  Kitchen. 'The  King  mav  vary  in  his  Pre- 
fenration wifteif  rcf/'W^ //^e/ui-wcr,  and  it  fhall  not  be   void  by  the  Statute  off  0  H.  S.   15.   per  Coke, 

W'arburton,  and  Foltcr.     Cro.  J.  24.S.  pi.  -.  Trin.  S  Jac.  C.  B.  in  Cafe  of  tlie  King  v 

■f  See  this  Statute  at  Prerogative  ((^  b.  2)  pi.  3. 

2.  Jf  tljC  Prefentee  of  the  King  be  inftituted,  tljC  l\imi[  CiiaitOt  rC=  After Tiduc- 

jjoiiCit  atccr  before  Jiimutioiu  £)iibitatur.  is  ei.  34B.  12.  25  e,  ^'°'^  ^';'>^"  ^ 
3  47-  armuttcu  m  it  feeing;  lot;  it  is  ccctifico,  tijat  it  uias  rc^ h;'',';'."'-"''!: 
cci\3Cti  after  tije  Letters  of  EepeaU    .  h-  tit^, 

3.  Jf  tijC  Preicntcc  ot   the    Kintf  dies  after   Inititution  and   before  Patents  n-- 

inductioii,  tijis  is  iT  Ecijaauioii  iirtau),  fotOat  tljcl^mo;  ftall  pre-,  ^oked  the 
lent  again,  tecaufe  tfje  i-umt  i)as  nottDc  effect  of  tl)e  li)rcfent»uent.  ^''•f'-'"""^- 
D.  20.  ei.  360.  7.  atinuttcQ.  ant!  €0,9-  t^oit  132  faiD,  tljatitThoip.  the 
U)as  fo  rcfol\jcti  ti)ere»   Dubitatut  D.  is.  ct  348. 12.  preh.tation 

is  dcltroyed 
bv  the  Repeal,  and   if  the  Bifliop  does  not  oull-  the  Clerk,  the  Temporalties   fliall  be  feilcd  into  the 
King's  Hands  tor  the  (~!ontempt,  and  bccaufe  '-.ootherTitle  was  made  but  the  King's  Pref.ntatio.T,  which 
is  defeated,  a  Writ  was  awarded  to  the  Biftiop.  fir.  Prelentation  ,  pi.  6.  cites  44  E.  3.  35. 

Tl;e  King  had  Title  toprefcntby  Lapfe,  and  his  Clerk  is  inftituted,  but  not  inducted,  and  died  hefcre 
Iiid::cfion  The  Queftion  was.  It  the  King  fhall  prefent  tbrthe  faid  Lu'pfe,  becaufe  the  Church  was 
not  full  againft  tiiC  King?  The  JuHicei  were  all  clear  of  Opinion,  that  the  King  mifht  repeal  i'azh 
Prefentment  before  Induction  ;  And  as  to  the  principal  Matter,  the  Court  feeined  inclined  that  the 
King  might    prejent  again.    Le.  1^6.  pi.  218.  Trin.  52  Eli?,.  C  B.  Wright  v  the  Bifliop  of  Norwich. 

S.P.  D.  ^4S,   a.  pi.  12.  Kill.    18  Eliz.  in  CUlflOll'S  t.aff,  and   there  it  was  held  by  Dyer  and 

Mounfon  accordinglv  ;  but  Manv.ccdar.d  Harper  e  Contra  ;  But  all  agreed,  tnat  the  King's  Prefeuta- 
tion  fhall  always  be  fiid  to  be  Admiilus,  Inllilutus,  &   Ir.ductus,  which  was  confirmed   by   Prccedent.s 

and  the  Book-s  of  ♦  22  and   3;  H.  6    and  24  and  98  E.  ;. But  D.  560.  b.  pi.  7.  Mich.  19  &  20 

Eli^  in  the  Cafe  of  CSplCS' i).  CoilTiii!,  where  a  Cliurch  became  void  by  taking  a  fecond  Benefice, 
and  Lapfe  to  the  (^leen  by  tiie  21  H.  S.  by  Default  of  Patron,  Blfliop,  and  Mctropoluan,  tiie 
Qiieen  prefented  13.  who  was  admitted,  inftituted  and  inducted.  Then  B.  died.  The  Qjieen  prel'ent- 
ed  G.  The  Patron  brought  Quare  Impedit  againft  G.  and  courted  ot  the  Avoidance  and  Lapfe,  and 
that  tht  Queen  prefented  G.  who  was  admitted  and  inftituted,  but  did  not  lay  (inducted)  and  that  the 
Church  being  now  void  by  li's  Death,  it  belongs  to  him  to  prefent.  The  (!)iieflion  was,  It  this  Pkai- 
ing  was  pood  ''.  And  by  the  greater  Number  of  JulHces  it  was  held  good  enough,  and  Precedents  fhewti 
in  the  King's  Cafe  where  Adniifliis  &  Inftitutus  o'-ly  had  been  allowed.  And  in  this  Cile  it  cannot  be 
intended  othcrwife  than  that  the  Queen's  Prefentation   was  effectually  executed  in  all   Rcfpects,  and  fo 

not  revocable,  and  Writ   for    the   Plaintift  was  awarded   to  the  Bifhop.  Bendl.  912.pl.   297. 

S.  C.    accordingly,  and  cites  feveral  Precedents  where  i^lnductuj)  was  omitted  and  held  good. '■ 

*  in'.  Quare  Impedit,  pi.  i.  cites  22  H  6.  27. 

4-  Jf  tije  Chancellor  prefents  tO  alSCnCftCe,  fuppofing  it  to  be  under  Watf.Comp. 
the  Value,  where  m  Truth  it  is  above  i)aUie,  nuQ  tljCrCUpOn  tljC  \dXt'  l'"^;  ^!'°\ 

tenteeiEi  aomittets  ann  imiituted,  nnti  before  JnOucnon  the  King,  ^?J;,^s'c''' 

beniff  apprijCH  tijerCOf,  repeals  thefitid  Prelcntmenc,  and  preientsone  in  And  Dr 

his  (jun  Name,  '{z\m  10  a  gooti  Ecpcaf  i  bccaufe,  as  It  fccnis,  tije  vvatfonfays, 
l^mg  i)as  a  riQijt  iiJrecencnt,  anntijc  Uing  is  QeceivseQ  alio  in  tijc  ;=  ^°""';" 
firit  erant.  ss  e,  3-  3-  b.  9.  aojutisen*  cierftood.  ' 

th.it  the  Liv- 
ing is  not  recited  in  the  Prefcntstion  to  be  under  the  Value,  elfe  according  to  the  ^orD  diailCtilor'S 
Cafe  in  Hob.  114..  the  Prelentation  will  be  void,  and  if  ib,  it  can  be  no  Qu-ftion  in  the  King's  Cafe  at 

what  Time  it  may   be   reyok'd. It   remained  good  till  it  was  avoided.  Winch.  19.  Parfon  and 

Morlee's  Cafe. 

5.  'Bv  ttC   Common  LalU  of  Scotland,  a  Lay  Patron  mai>  Itur))  ^^' ''='<=  a 

after  Ije  fjasj  prefentcD  ijis  Cierl^,  ann  prefent  anotljer.  g^bene  Re^'-;^;:^'^''']^- 
giam  95a)cftatcm  *  lo,  b.  ucrs*  3-  31  c*  i-  Otiarc  Jnipetiit  1S5.  ®o  *^ 

by  our  Law,  LUUUOOtl  fOL  no.  i\    38  (!3.  3.  36-  b.   14  C  3-  2.  U.  ailll 

tljat  tlje  Ordiiiarv  niav  admit  n  hich  of  the  Clerks  he  pleai-.-.  f  >n  prercnts 

6.  Butbf  tijcLalOaUd  Of  tijefalDEcaUn,  an  Ecdelialtical  Patron  "'^.^'='.''> 

cannot  vary  froHi  1)13  ]3rcfcntn?ent,  Quia  j3r*fentatio  a  Cierico  ^".jYVn/)! 

Satrono  facta  \5nii 'oabct  €lcftionis  fj  clisens  Jntiisnuni  lU'iiiatnr  ip= /.^.'.vrf,y,  he 
1  Jure.    ^Utic  Ecgiani  i19a]eftatcni.  lo.  b.  Drr.  3-  ^i-  C  i.  Gu.i= '<--"^ot 
re  jvt  pctiit  185.  ^:o  by  cur  Law  a  coiniv.on  Lat'  li'otron  camnVi  rt'ocus  p"^^'''!'^ 
W  ISrefcntattcn.  D.  si.  ei.  184  12.        "  i^for"Tn 

duction  M"d 

pref-.K 


■:>/|.4.  Prcfcntation. 


Vicle,  t  ;ir.(;tlier  ;  (.crtra  ot  the- Kir.g ;  Kote  tlie  Difference.  Br.  C^uarc  Inipedit,  pi.  65  citfs  ;S  E.  5. 
-^S  y. A  L;iy  P.iti-on  inuy  vary  liom  his  Prefentiuion  before  *  Induction,  but  :i  Spiritual  Pa- 
ri on  carrift,  becau'c   he  ni^iy  well  ur.derlbnd  the  Sufficiency  of   his  Prefcntee  at  firft  ;  Per   Doderidge. 

^oy.  Qi,  in  Cafe  of  ."-totk  v.  Sicks.— Cites  58  E.;.  :;(S.  D.  izz.    Kcilw.  1^4    N.  B.  14  E.  4.  2. . 

Doderidge  l":id,  that  the  Civili:ins  fay,  that  a  Lay  P.itron  ca.nnot  revoke  his  Prcfentation  ;  But  he  may 
Cuii.uh'i.Jo  inunte  \  And  ib  the  Ordinary  (hall  h.ivc  tlcction  toinftitute  which  of  them  he  will;  but 
thataSyiruu.il   Per-'bn  cannot  vary  at  all.     But  he  (aid,  that  by  our  Law  -without   (.^ucftion   a  Patron 

n  sy  revoke  his  Prefentatitin      Lat.  191 ,  192  Mich  ;  Car.  S.C.  by  Name  of  Stoke  v.  Sykes •  Lat. 

25:.  S.   C.  ■ *  It  Icems  niilprinttd  for  (Infiitution.)' 

7.  Brooke  makes  a  Quxrc  in  the  Cafe  of  Knminiition  being  in  one, 
and  the  Prefcntation  being  in  another,  if  the  Nominator  may  name  one^ 
afid  cijtir  -another^  as  well  as  the  Patron  may  vary  in  Prefentment  ;  and 
fn  s  that  diverle  ot  the  JuJliccs  held  that  he  may.  Pit.  Quare  Inipedit, 
pi.  133.  cius  14  E.  4.  2. 


(U.  a)     Iflkit  fliall  bs  faid  a  R.i'VQcat'ion. 
Jee  S  r        J   Y  jf  t!)C  King  prefcnrs  tO  al^CIKfiCC.  and  dies  before  his  Clerk  is  Ad- 

ArguedLane  |  ^^^^^^^^j  .^^^j  iniiituted,  %  |3rcfaitincnt  \%  tciJChcQ  in  inio  li}» 
Trin°  -  jac.  lj!3  DciUl).  ^icl).  8  3a.  ^caccaiio,  aiiti  Iptl.  s  ja.  ©tactarlo,  U(> 
in  the  ek-    tiuceti  CoivcTt  and  Kitchin  aQjiiogcG,  pex  Ciiriam, 

cheruer. —  g.  3f  tljC  King  prefents  tO  a  iDCUCfiCSi  and  alter  prcfents  another 
And  Ibid.      .^^,jj(^^u.  Revocation  of  the  firll,  or  AJention  thereoi,   PCt  It  iS  a  ilCija- 

Hiii.' 8  h,c  catio!)  Ill  Latu of tijc  firfL    ^\i\).  8  Ja.  ?scaccai:io/  Jp>  8  ja.  «g^cac= 

S.  C.  arfTDcd  canO,  ktaiCCn  Cahcrt  and  Kitchifi^  pJT  CunatlU  D*  12  (£1.292,  70, 
ar.dadpdgcd    j5  ei3-7.4. 

3,  Put  ctijcviwTc  {t  \^  if  fiiri)  fcconn  prefentment  be  olitaineD  by 

Fiaud  anti  Deceit  Ot'tlje  t\mO;,  pending  a  Quaie  Inipedit  by  the  King 

i5pon  tijc  fivft  (jpiaiit,  Bonce  biino:  giben  to  Uai  of  f)j0  lint  <5n\\u 

iD*  17  CL  339.  47*     Co*  6.  Greene  29*  I), 
See(T  a^  pi. 
-.  S.  C.  at'd     J 
the   Tsotes 


4.  jf  tijC  Prefcntee  of  the  King  dies  after  Inftitucion,  and  belbre  la-. 

L  aion ;  xlM  \^  a  Reuocatiou  m  laui,  becaiul:  tije  Eiitn;  Oas  ttot  tt)e 
•.here?""    €Mt  of  t\)t  l^terctitation,  aitti  (d  fijal!  pvea.nt  again.    DiiouitiUiv 
D,  is  £1. 348*  12,    Co.  9»  ^(^^^  132.  lull:  it*  be  i:ei>.rjc3  iu  tlje  KiiD 
Cafe  of  1 8  CI.  £).  20.  (£U  360. 7.  mmiittea. 

See(T.a^pl.  5.  j-ftije  King  ptefetlt^,  anD  after  before  Inllicution  revokes  it,  but 
'■  -  belore  Notice  tljCreOf  to  the  Ordinary,  tljC  ©tCinarp  Inltitutes  and  In- 

t  f^n'ns  d"^^«  '^'"ij  if  ^^^'i"^  *i3at  ti}i£i  prefeittitient  iuasi  lucU  relsoheti  in  laui, 
c/;.A  ci;»  /.  auB  t|)c  Ccniifance  tDereof  to  tije  ©rtinarp  10  not  material  asi  to  the 
.^^r»//f,^-»«rf  ^nbftancc  of  the  Eeijo cation,  but  cu!p  to  tsifiijar&c  bini  from  beinff 
hptuted.scx  3  iQjfliirtier.  D.  12  CU  292.  a^uiD^U  a,s  it  feemss.  C!5ut  Dpec 
%Tx&t  ina'^-C3  n  fiCiusrc  tbereof. '  Diibitatur  D.  16  ci.  328. 6,  j^m  25  C* 

fentmert,         3*  47*   it  feCnilS  lillU  PtOUC  it. 

and  prefcnt  •  t        tv-  r 

another  ;  for  there  is  no  Plenarty  againft  the  King  without  TnJuftiiJTi  ;  for  where  Title  falls  to  the 
Kill?,  and  AdmifTion  and  Inftitution  ij  pafs'd  before,  and  no  Indud-ion,  then  the  King  may  prefent. 
Br.  Plenarty,  pi.  15.  cites  53  E.  5.4. Contra  of  a  Common  Per/on.     Ihid. 

s.  C.  Cited        6.   "Tf  a  Man  prefents,  and  before  Inftitution  dies,  pet  It  fCCUlSi  tljat 

watfcomp.  fjjj^  j^j^gj.  jjjjp  i;^c\)ocation  in  iLatu  of  tije  Prelentmeat,  becaufe  tW 
%  cap  :o  is  P«f0  5  from  Jjim  bp  tljc  prefentment.  24  e.  3. 3°.  it  fcemsj  UJill 
For  if  his    proiie  it. 

Evecutor 

prefents  another  Clerk,  this  fecond  PrefenTment  is  alfo  good,  and  the  Bifliop  is  at  hi<;  Liberty  which 

Clerk  to  receive.    Cites  Le  205.   Trin.  21  Eiii.  Smallwood  v.  the  BiHiop  of  Litchfield  &c. S.  P. 

Arg.  Lane -4  cites  Mark  Ogle's  Cale. 

.  7.  The  Vicarage  of  TiJtlon  Scc  came  to  the  ^tieen  hy  Lapl~c  of  2  Years. 
Afterwards  the  BiJJoop  of  the  Diocefe  collated  L.  to  it ,  and  after  v.  ard.;  the 

G)iieeit. 


Prefcntation.  3^5 


^iiccn  prefiiited  cue  P.  to  the  Vicarage,  who  brought  a  ^narc  Tmpedit 
a'^iiinlt  the  Bilhop  and  his  Collatee,  pending  which  Suit  L.  the  Collutce 
by  Fratrd  aud  Deceit  obtained  a  Pnfentation  from  the  ^i/ecn,  without  vten- 
tioiinig  her  Pieafurc  to  revoke  the  firfi  Prefetitation.  1  he  ^iiecit  by  Letter 
lio-n'd  &c.  by  her,  certified  the  Court  thinjke  bad  furgot  the  firJlPrefentatwn, 
ivui  (aid  htr'Pieafure  was  that  itjhould  Jiaiid  firm.  And  in  the  Term  tol- 
lowinii,  the  Queen  had  Judgment,  becauje  L.  having  de7)!urr''d,  the  Fraud 
and  lieceit  aone  to  the  Queen  and  the  Court  pending  the  VVrit  was 
coiifefs'd  by  it,  tho'  tire  Notification  thereol"  wa.s  not  made  under  the 
Great  Seal  &c.  D.  339-  b.  pi.  47.  Hill.  17  Eliz,.  Price  v.  tilliop  of 
Bath  and  Lane  after. 

•  8.  A.  was  prefented  by  Simony.,  and  died  ;  the  Patron  prefented  B.  the 
King  prefented  J.  S.  and  after  a  General  Pardon  came  out  with  a  Clanfe  of 
Rc/iitiitinn  of  Forfeitures.  And  altho'  the  King  may  revoke  his  Prefenta- 
tion  bv  e.xprefs  \\'ords,  yet  vviiccher  or  no  the  general  Words  ot  Kelti- 
tuiion'contained  in  the  Pardon  Ihall  amount  to  tlie  Revoking  ot  thePre- 
fencacion,  and  of  reitoring  to  his  Right  ot"  prelenting,  was  a  Great 
Qiicition.  Et  adjornauur.  Freem.  Rep.  198.  Trin.  1675.  C  B.  The 
King  V.  Turvill  and  the  Bifhop  ot  Lincoln. 


(X.  a)     Prefcntment.   *  Examhintion.    ffljat  Time  the  Or-  ^  g^,^^.^^ 
d'uhiry  (hall  have  to  examine  the  Clerk.  tion  u  that 

•^  ■J  Tri.U  or 

Probation, 
icli  the 
Top  or 
"lary 
^  before 

Pcrfon  to  Holv  Orders  or  to  a  Benefice,  touching  the  Qualification  of  fuch  Perfons  for  the  fame  relVe:- 
tivelv  •  lb  that  there  are  two  certain  Times  or  Seafons  eipeciaily,  wherein  this  ExaminaLlon  is  reqv.ired  , 
the  ore  before  an  Admiif.on  to  Holy  Orders,  the  other  before  an  Admiffion  to  a  Bcnefic^  The  former 
of tbcfe  is  expref.lv  enioyn-d  by  the  ;  5th  Canon  Ecclef.aftical,  thereby  it  is  required  That  the  Bidiop, 
before  he  admit  anv  Perfon  to  Holy  Orders,  ITiall  diligently  Examine  him  in  the  Prelence  of  thofe  Ml- 
niders  thu  O.all  affirt  him  at  the  Impofition  ot  Hands  ;  or  in  Ca(e  of  any  lawful  Impediment  ot  the  bi-  ■ 
fhop  then  the  faid  EKamination  tbail  be  carefullv  perform'd  by  the  faid  Minillei-s,  provided  ti.ey  be  of 
the  Bifhop's  Cathedral  Church,  if  conveniently  it  may,  othcnvik  by  at  Icaft  3  futhcicnt  1  reachers  ot 
the  fume  Diocefs.     Godolph.  Rep.  270.  cap.  24.  S.   1. 

2.  Butijp  tijc  Canon  matsc  i  Ja.  cap.  95-  tt  isi  ornaincu  tljat  tl)c  2 
i0ontlj6  fijall  w:  abrtmicu  to  28  Days  oni^ 

3.  txaniination  of  the  Cleric  is  to  be  done  at  a  convenient  Tnne  within  the 
6  Months  ;  for  the  Ordinary  cannot  refute  to  Examine  the  Clerk  during 
all  the  6  xMonths,  and  to  fu'lfer  a  Lapfe  to  incur  to  himfelt ;  tor  by  to  do- 
ing the  Patron  Ihould  lofe  his  Prelentation,  and  the  Ordinary  take  Ad- 
vantage ofhis  own  Wrong  ;  but  if  the  Ordinary,  when  the  Clerk  comes 
to  be  examined  Scdet  circa  Curam  Palloralem,  he  is  net  then  obliged  to  leave 
the  Eiifinefs  in  Hand^  and  prefently  examine  the  Clerk ;  but  he  may  ap- 
point a  convafient  Time  and  Place  fof  the  Examining  ot  hmi.  Godolph. 
Rep.  271.  cap.  24.  S.  3. 


4S 


iY.  a^ 


346 


Prefentation. 


£k-Ou;    (Y.  a)     Prefentmenr.     Rcfifal     What   fhall    be  ^ood 
i^wry.  Qmfe  of  Rei'ufal,     h  Refpeci  r;/'the  Prejhitorf' 

•?ij  of  Outlaw- 

ICof '     '*  If  ^^  ^1f^  ?^"^^  °-^  ^^'^  ^^^'^^^  Of  ^  ^'^t;fe,  tljat  !}is  prcrcntar 

^1  .^    '^      IJCltl  III  .  lie  7r>OOK0»     Co*  5*  ^;;6Yo?58. 

See  CM  a)         2,  Jf  3  Jointenants  arc  Of  illt  aH^OUlfail,  Of  OFil  tXttt  ZWOtltttC^^nd 
P'-  '■  one  or  two  oi  them  only  preicnt  •  tljC  ISlHjOp  10  ilOt  mV  DtttUrDeC  tf 

Jk  itfurc  Ijun,  for  !jc  ig  not  boimo  to  nnniit  tlje  Ctcik,  jf  an  the 
See (M.  a>    ^omtcnaiits  po  not )oin  in  tije  prcfentnient.   D.  14  ei  304.  ,-4. 

pi.  I.       '  3*  -Bi^c  It  t()trC  are  3  Grantees  01  a  next   Avpidance,  auO  after  flS 

Cijurclj  130100,  ano  two  of  them  prefent  the  Third  beimi  n  C!crk  tiic 
£)r5niarp  10  licimti  to  atnnit  Ijini,  bccnuft  ije  cnnnot  m\  m  BuMt 
mm  ofomifeif,  airo  Ik  tnaj)  reiinqiuflj  m  Citlc,  am  mcota  Bxo 
fentmcnt  from  tljc  ct'ocr  tloo.   D,  h  CI,  304, 54,  ^"^ 

I     4.  J,f  4  Coparceners  are  of  an  Advowfon,  and  the  2  EldeJt,  or  EideH: 
and  the  3d  prefent,  anB  tijC  others  prefent  another,  anU  ttOt  all  tOlTCtto 

or  tf)e€!ricft  alone,  ttje0rtimar{)  map  rcfufe  all  tljeir  Clerh0,   Co! 


(Z  a.)  What  fhall  be  good  Caufe  of  Refai:il.     In  refpea: 

of  the  Prrja/tee.     And  for  what  Caufes  they  maybe 

refufed.     [Cr/Mej  8?^.] 

sLe.ip^.pi.  I-  TA  8, 9  CI.  254.2.  Jn  Ciuarc  SlmpcUtt,  tijeOStajop  tetttrneH 
^5'-  s  c  J_J- tljat  at  tijc  mmz  ot  tijc  prefentation  of  tIjc  prefentce,  anD 
buc  ..oudg-  aji  tijc  ctnic  Of  010  Commorancy  luitiiui  m  Dioce©  Ijc  commonly 

And.  189.  naunced  -I  averns  and  other  Places,  and  unlawful  and  prohibited  Games, 
S^  C.  _       Ob  quod  &  di verHi  conhmilia  Crimina,  tfie  faiO  PrefCUtCe  m0  Crimi- 

D.  25,  b  nofus.  ano  bv  an  tl)c  Jitaice0,  tlje  particular  ^tm^  aUobe  5a  act 
pi^..M,ch.  make  toe  [3)rrfentcccriminoru0,  becaufenonc  of  tbem  ocferue  Rp 
£,^^ 9-       ftm^i .  jToj.  fjj(>p  ^^  ^„jj,  ^^j^i,j  p.ohibita^  (j^p^  ^.  ^v,^,^   8.  cites  S 

Bell  V  Bidi-  Cafe  to  be  aDjuogeD  i  nm  tbat  tlje  motW  ob  diverfa  Crimini  are 
op  of  Nor-   too  general  ann  uncertain 

wich,    anri 

after  the  Word  (Criminofus)  adds  vk    Et  fie  inhabilis  &  ron  idcnea  Perfona  effe  infiituenda  in  Vica-" 

mm  prxdidam  &c. —  Hob.  296.  cues  S.  C. But  fuch  Crimes  as  are  .11,1.x  i„  fe    as*Ho 

mi.ide,  Drur.kennefs,     ImimthcKcy,    Perjttry   &c.  are  good  Caufes  of  Refufal      Ibid  ^  Nm,,ap 

^  B.fiarcl.y,  ox-  ]OutU^j,.y.    Ibid *  S.  P.  if  the  Clerk  be  attainted  and  not  pa.-doned    toother 

■wife  if  he  he  t-rdoned:  For  then  hen  re  (iored  to  the  Benefit  ot  the  Law.  fenk  259  pi  cc  '  cites  Hob 
289  Searl's  Cafe.  —  ]S.  P.  Br.  Qiiare  Impedit.  pi.  12.  cites  55.  H  6.  12.&32'  -4'  H  V  ,'1  -8  &  •> - 
H6.  18— *  S  P.  Br  Ouare  Impedit.  pi.  119.  cites  5  H.  7. 19.  Per  Keble. -;|  S.  P.'and/.oV  krjj"-' 
miimcaiioi.  Jenk.  259.  pi.  55.  r 

5.  €a.  spec-ot  58.  Eefoltjeu  tijat  all  fuel)  a0  are  fufficient  Caufes  to 


2. 


*  t.  f  u  ^'^P"^  e  an  Encumbent  arc  fufficient  to  refufc  ^^reftntee. 
keSVhen'  ^_  3*  Jt  10  tiot  niip  Cattfc  Of  Refufil  Of  j ^rcfcntee,  tijat  Ijc  has  another 
for  two  Benefice  ;jrortb!0 10  *  at  tljc  Peril  Of  tljc  prcfcntec  ano  peraODenturc 
i^ionths,  tljc  2ri  'Benefice  10  better  tljan  tlje  flrlf ,  anD  tlje  fir,t  fliall  be  onlp 
^°S  ^S"  l^^^  ^^^l^l f'Jf^J^forc  It  uioum  be  mifcljieijou0 to  tlje prcfcntee  if  Ije  fijall 
tTeifote '  ^^  "^^^^^^^^  0"  «ji0  cicccunt.  14. 1),  7. 28.  b.  Curia.  ^  ^ 

is  not  at  the  Peril  of  the  Bifhop. Br.  Quare  Impedit,  pi.  92.  cites  S.  C. 

4*31t 


Prcfentation. 


347 


4*  "St  isi  0:005  Caufc  ofKcfitfal,  bccattfc  tijc  iprcfcnttc  was  Per- 

jur'd,  tho'  no  Conviaion  UlilS  tljCCeOf.     D»  13  €U  293*  2*  *  38  Q£,  ^'"'-  ^>5<^- 

3*  2»  U^  ^  ,  p^^~j 

5.  So,  it  (IjaH  lie,  tl)0'  IjC  luaci  Peijur'd  in  a  Suit  between  the  Ordinary  ,  Rq,  jS  a 
and  another.     DUbltatUr  t  38  C*  3-  2.  b»  in  Spccot's 

Cnf'c,  rind 
Ws  the  Pica  of  the  Bifhop  was,  That  the  Piefentec  confetVd  himfelf  to  be  perjured  Sec.  and  lb  he  was 
Ci-iminolus;  w  hence  i:  is  i'.nd  it  appeuri  that  to  allege  Criniinofus  gcnerallv,  is  not  good  ;  for  no  ccrtaia 
Inuccaii  be  taken  thereupon,  and  it  ua^  doubted  there  if  the  Bifhop  ous^ht  not  to  fay  in  Faft,  Thar  he 
is  perjur'd,  and  not  that  he  has  confels'd  hiinfclf  to  be  perjur'd.  — |  Br.  (^u:ire  Impedit,  pi.  94.  cites  S.  C 

6.  3it  iss  gooti  Caufc  of  Ecfufal  of  a  l^refmtcc,  ktaufe  Ijc  is  sr  Quare 

a  Villein.     14  i^,  7,  28,  tl.  CltCta*  C0»  5.  Spcca  sS.  Impedit,  pi, 

92.  cites 

S  C.  By  Brian  and  the  greater  Part  of  the  Jultices  and  Ser/ants S.  P.  Br.  Quare  Impedit   pf  1 10 

cites  5  H.  ;.  ly.  Per  K;blc.  f       >  1         ;' 

7.  3!t  10  gooti  Caufc  of  Hcfuan  of  a  prcfcntcc,  tljat  ijc  has  kiii'd  a  Br.  Q..nre 

Man.       38  eJ,  3»   2«  tl»  Impedu,  pi. 

8.  'CDC  ©rtnnarp  map  rCfUfC  a  ClClt  upon  his  Conullmce  of  an  Of-  pif'^"' 
fence  done  by  tlie  Prefentee,  wliicli  is  good  Caufe  of  Rclulal,  the'  {JC  llC 
not  con\  iaed   tljCtCOf  bj)  tI)C  LaiU  j    ant!  tfjiS«  fljail  be  tned  bv  llfue 

UJljctiicr  it  be  true  or  no.    3'^  <i:»  3. 2.  b. 
9*  3!t  is  poo  Caufe  of  Retufal  of  a  Cleric,  becaufelic  (3  simonia- 

cus  in  the  lame  Prefentment,  tijat  JJS  tO  Kip  {ja0  UUHOC  a  COfCUUt  COn= 

tract  to  be  prctentcti. 
10.  3t  t£j  goon  Caufe  of  Eefufalof  a  Cicrfe,  bccrinfe  Ijeissi- 

nioniaciis  in  other  Benefice  tljau  tlj!^,  tO  UlljiCl)  !jC  !3  UDU3  preiCntCiS* 
CrtlU  16  Ja.  Id,  btt\3im\  Boniktou  aUD  tDC  B/J/jop  ofRocbe/icrXW  a 

iDunre  Jnipetiit,  per  Curiauu  "  s.  p.  Per 

1 1.  Nonabtlity  and  Crimuiofns  are  fufficient  Caufes  tor  the  Ordinary  to  ^^'''^^  ^""^ 
rcfuie  the  Clerk.  Br.  Quare  Impedit,  pi.  12.  cites  33.  H.  6  12  32.  34du'i  "'P''' 
H.  6.  II.  3S.  &37H.6.  18.  citasVa^^' 

12.  If  aMifcreaiit  or  *  Schifmaiick  be  prefented  and  induced,  this  is  *S  P  And 
good  Caufe  of  Deprivation.  5  Rep.  58.  in  Specot's  Caie,  cites  5  R.  2.  tit.  *"  Herd'y  is 
Tryal  54.  and  lays  it  was  agreed  to  be  good  Law^  So  if  he  be  Irreligious,  ff  Rcfuihl.'^ 
he  may  be  refufed,  as  it  is  faid  in  5  H.  7.  6.  But  when  heis  charged  with  fenk  259. 
the  One,  or  refufed  lor  the  other,  tt  wiiji  be  alkdgal  particnlarlj,  fo  that  P'-  '>'^-'Tr~ 
the  Partv  may  anfvver  thereto.  Ibid.  And  tho' it 

•'  dues  not  be- 

long to  the  Kin<;'s  Courts  to  determirrc  Schifms  or  Hevefies,  vet  the  ori;^inal  Caufe  of  the  i^uit  being 
Matter  whereof  tl.c  Ccurt  of  the  King  has  Conufance,  the  Caufc  of  Schiiin  or  Merely  upon  which  the 
Prefcnrce  is  refu'^'d  ought  to  be  alleg'd  in  certain,  that  the  Ki^,g'.^  Court  may  confult  with  Divines  to 
know  if  it  bcSchifm  or  not ;_  and  in  cafe  the  Party  be  dead,  then  to  diredt  a  Jury  to  try  it  5  Rep.  jy.a. 
b.  Rclblv'd  in  Specot's  Cafe. 


(Z.  a.  2)  Refufal.     What  fliall  be  good  Caufe.         See  (z.a,  3) 
liliterature  &c.  jwt  bch^s;  Crimes. 

I.  T  N  Quare  Impedit,the  Bp.  plcads,That  he  danarided  0/ J.  S.  tbePrefentee  Ls  ip- 
J[   oi  the  Piaintitf,  to  fee  his  Letters  of  Orders,  and  be  is^ould  not  fbew\^,  ^."'^ 
them;  And  for  this  Caufe,  tor  that  he  was  not  alcertained,    whether  he  laj'j  "^Vhat 
were  Deacon  or  not,  and  alfo  he  demanded  of  him  Letters  mtljhe,    or  Tel-  tlie  kfnop 
timonials  teftifying  his  Ability,  and  becaule  he  had  not    his  Letters  of  "^^y '-■"^■"n'''e 
Orders,  nor  Letters  Mill!  ve,  nor  made  Proof  of  them  otherwife  to  the!"7>"'fT 
Billiop,  hedehred  Leave  of  the  Bilhop  to  bring  them,  and  he  gave  him  hrH'ordcn 
aVVetk,  and  went  av\  ay  and  came  not  again,   and  that  the  lix  Months  or  not ;  Biu 
pafs'd,   and  he  c^ 'Hated  by  Laple  ;    And  up;)n  Demurrer  upon  it,  it  was  ='•*  f"  c'"" 
adjudged  forthc  Plaintirt  j  Fur  thefe  were  not  Caulcs  to  itav  the  Admit-  .V,",!'"''''   .  , 

tunce  ^jt'iii. -ood 


34-B 


Prefentation. 


Bclwvinur  tuiice,    und  the   Clerk  is  not  bound  to  fliew    his  Letters    of    Orders 

miasuftki-  orMiiFive  to  the  Bilhop,  but  the  Biliiop  mult  try  him  upon  Examina- 

Z^J'  ''"'  tiun  lor  tlic  one  and  the  other;  And  the  Plea  is  not  alledged  in  Faao,  but 

cu^h'\o  Pro  eo  quod  non  monltra\ir,  Co  that  all    cometh  under   the  (eo  quod) 

ex.iminctltc  and  lo  no  Part  ol"  it  is  tnucrfablci  And  tor  one  and  the  other  Cuule  it 

fame  him-  ^,.^5  adjudged  for  the  PlaintiH".  Cro.  Eliz.  241,  242.  Trin.  33.  Eliz.  B.  R. 

fclf.and  if  J,  j^   Klartiuret  Pahiies  v.  the  Bilhop  of  Peterborough. 

hcgivcs  Day  ■^*  i^  l  -^ 

i  A    f    • ' 

the  AairiTion,  bcau'c  he  !■;  not  refolvcd  there  in,  he  Ua  Difturher  if , the  Clerk  ccmes  to  him  in  a  Con- 
venient Time  ;  And  tiis  Bifliop  cannot  refute  a  Cle'ik  for  the  Want  of  Letter;,  Teftimonial, 

s  Lutw.  2.    In  Quare  Impedir,    Plaintiff  counts   that   he  was  fcifed  in  Fee, 

ioy4.  S  C  cl  the  Advowlon,  and  that  the  Church  becoming  void,  he  prefented 
but  only  oj,g  Q  Y^.[^Q  (lied,  and  that  it  belonged  to  him  to  prefent,  and  the  De- 
pfidi^n^':  fendants  dillurbed  him  ;  the  Bijlcp  claimed  nothing  but  as  Ordinary  ; 
and'do'csiiot  and  faid  that  ii-ithinjix  Mouths  alter  the  Avoidance,  the  Plaintif  pn- 
report  the  fcntcfi  Francis  H'ldder^  who,  at  that  Time  '■juas  a  Perfon  *  Minus  fufficictn 
^''e- — -—  in  Litcratuvdfcu  Cafax  to  have  the  faid  Church ;  That  ^^  eiiariuncd  bim^ 
*  He  muft^^^  and  finding  him  Mmus  fulficientem,  he  rejufed  him,  whentipou  he  gave 
Piirti'.ularhe  lictice  to  the  Pl.tintilF,  er/id  he  t:ut  prcfaiting  '■duitbin  the  fix  Months^  the. 
is  Nlirus  Rijhop  colLitcd  the  Defendant ;  Plaintitt>f/)//«,  Ihat  Hcdder,  ul  the  Time 
fufticicns,  2  ot  his  Prefentation  &;c.  zvas  in  Holy  Orders,  and  had  been  admitted  there- 
Ss^  1-19-  jg  upon!  Examination  by  the  Ordinary,  and  was  mflituttd  a  Vtcar  into 
•'r  The  Court  another  Church  for  divers  Years,  yind  "jvas  in  J'erh  Divino  Dolfiis  &c. 
inclined  that  The  Plea  was  held  good  by  3  Jultices  (there  being  then  no  Chief  Juitice) 
he  was  ftill    [Vm;  \yas adjourned  to  be  further  argued ;  Afterv\ards   Trebv  being  made 

fubjett  to  an  q      .    ■  j    |^  ^^^   q^^.^  ^^  ^^  ^^  jjl  pj  i^^^         '    ^p^in.  3  W . 

Rxammuton  „     •  J     „    t^    tt    1         ^1        r>-n  ri-  j   11  d         u-     1    j 

of  hib  A4-  &  ^^1-  C.  B.  Hele  v.  the  Bilhop  ot  Exeter  and  Hayman. — But  this  Judg- 
litv  on  a       ment  was  X  reverfed  in  the  Houfe  of  Lords. 

new  Promo- 
tion, but  gave  no  Refolution.  Canh.  511,512.8  C.byNameofthe  Biiliop  ofExeter  v.  Hele.  ■ 

i  Show.  Pari.  CalcsSS.S.C. 


(Z.  a  3)    Refuial.    Trial.    Where,  and  How  theCaufeof 
See  cz.a.  2)  ^cMA  fliall  be  tried.  And  PIeadh(rs. 

o 

Iris  ref|U!rM  i.  9  E.  2.  T  7"  is  defircd,  that  Spiritual Perfons  whom  our  Lord  the  King 
'w  p***^;^^"  c^ip-  13-  X  ^''^^^  prefent  unto  Benefices  of  the  Church  (if  the  Bipop  will 
V)rerented"be  "°^  admit  them  either  jor  *  laek  of  Learning,  or  for  other  Catife  reafonahk) 
Idonea  Per-  may  not  be  under  the  Examination  of  Lay  Perfons  in  the  Cafes  aforefaid,  as 
fona,  for  fo  it  is  now  attempted,  contrary  to  the  Decrees  Canonical;  but  that  they  may  fiie 
^^.''^^^.°^*|^  unio  a  Spiritual  Judge  for  Remedy^  as  Right  {ball  require.  (2)  The  Anfwer; 
WriT  Prse?'  ^/  ^^^  Ability  of  a  Parfon  prefented  unto  a  Benefice  vf  the  Church,  the  hxn- 
lentare  Ido-  mimnmi  belongeth  to  a  Spiritual  Judge,  %  and  fo  it  hath  been  ufed  heretofore, 
ncam  Perfo-   and  jh all  be  hereafter.  , 

narn  ;  And 

this /AKf//.r/  confilfeth  indiverfe  Exceptions  againft  Perfons  prefented;  ift,  Concerning  the  Perfon,  as 
Balhirdy,Villcn.ige,  Outlawry, ENxommunication,  a  Layman,  Under  Age-,  and  the  like,  idly,  Concerning 
his  Conver'ation.as  if  he  beCriminofas  &c.  5dly,  Concerning  his  Inability  to  difcharge  his  Pafioral  Dut\ , 
as  if  he  be  unlearned,  and  not  able  to  feed  his  Flock  with  Spiritual  Food  &c.  and  the  Exa.mination  of 
the  Ability  and  Sufficiency  of  the  Perfon  prefented  belongs  to  the  EiJiMp,  who  is  the  Ecclcfiaftical 
fudge  ;  and  in  tliis  Examination  he  ;j  a  Judge,  and  not  a  Mhiijler,  and  may  and  ouglit  to  r;fufc  the  Per- 
fon prel'ented,  if  he  be  not  Idmea  Perfona  And  if  the  Caule  of  Refufal  be  for  Default  of  Learning, 
or  that  he  is  an  +  Heretkk,  Schifmatkk,  or  the  like,  belonging  to  the  Knowledge  of  EccleiialUcal  Lavr, 
there  he  nnifi  give  \\  hiolice  thereof  to  the  Patron  ;  but  if  the  Caufe  be  Temporal,  as  a  Felon,  or  Flomuidc, 
or  ether  ^cmfora!  Crime,  or  if  the  Dif.ibiiity  grow  hy  any  .'!ii  oj  Parliament  or  other  Temporal  Law  ,  there 
no  Kotice  ought  be  given,  unlefs  Notice  be  prefcnb'd  to  be  given  thereby.  But  in  a  Q_a.ire  Impedit 
brought  againlV  the  Blfliop  for  refu'al  of  the  Clerk,  he  muft  -ff  Jyfw  the  Caufe  of  lis  Retufal  fpecially  and 
clireHly  (for  whether  the  Caufe  thereof  be  Spiritual  or  Temporal,  the  Examination  of  the  Biihop  cor.- 
cludcs  not  the  Plat^tift  )  to  the  latent  the  Court,  being  Judges  of  the  principal  Cuu'c,  may  confult  uith 

Learned 


Prefentation. 


349 


Learned  Men  in  that  ProfcfTion,  and  lefolve  whetlier  the  Caiifc  be  ju!l  or  no  ;  or  the  Party  may  dc"v 
the  lame,  and  tlicn  the  Court  fhall  write  to  tiic  Metropolitan  to  certify  the  fame  ;  or  if  the  Cau'e  be 
Temporal  and  lullicient  in  Law,  (which  tlie  Court  mull  decide)  xhi:  J'.ime  may  he  tra-cerfedy  and  an  Ilfuc 
thereupon  joined,  and  try'd  by  the  Country;  and  yet  in  fomeCafe.s,  notwithllanding  this  Statute,  Idoreitas 
I'er'ouac  fliall  \k  ny'd  by  the  Country,  orelfc  tlicre  fliould  bea  Failure  of  Juftice,  (wh'cli  the  Law  will 
never  lutter)  as  if  the  Inability  or  Inllifficiency  bealleg'd  in  a  Man  that  is  ^^  dead,  this  Cafe  is  out  of 
thisSiaiiite  ;  for  the  BiTnop  cannot  examine  him  ;  and' the  Words  of  this  Act  are  De  Jdoncitatc  PerfoiKe 
prefcntatx  ad  Beneficium  Ecclefiafticum  pcrtinct  Examinatio  &c.  And  conlc(|uentiy ,  tho'  tlic  Matter  be 
Spiriuul,  yet  fiiall  it  be  tried  by  a  Jury  ;  and  tiie  Court,  being  affilkd  by  Learned  Men  in  that  Pro- 
fdlion,  may  inlhiiCt  the  Jury  as  well  of  the  EcclclialUcal  Law  in  that  Cafe  as  tliey  uiually  do  of  the 

Common  Law.     i  Inft,  6;2  if:  Sec  (Z.  a) ||  See  CK.  a)  &c. tt'See  Specot's  Cnfe 

^.(:  S.  P.  12  Kcp.  6-.   Mich.  8  Jac.  m  r  ■     ■ 

♦  In  Quare  Impcdit  ap;ainft  the  Bifliop  he  pleaded,  that  he  rcfufed  the  Clerk,  becaufe  upcn  Exam)- 
nathii  he  jotituihim  to  be  Sch'ijmatkus  //rjeterntns,  and  for  that  Kealbn  he  icfus'd  to  admit  him,  as  being 
a  Perfon  by  the  Laws  of  the  Church,  unable  and  unfit  to  take  a  Benefice  w  ith  Cure  of  Souls.  This 
Plea  wasadjud^'dmC.  B.  to  be  infuftkicnt,  becaufe  it  was  Generally  Schidnaticus  Invetcratus  ;  And 
upon  Error  brought  in  B.  R.  the  Judgment  was  affirm'd  ;  for  the  Statute  of  Jni.-itli  *  *  tupcr  Chartas,  cap. 
13.  fiiyi,  Procter  dejeilum  ScientU,  and  other  reirfcjuible  Caiifei,  whereas  Caula  vaga  &  ir'certa  is  not  a  rea- 
fonabie  one  ;  and  tlio"  the  Bifliop  (as  jt  was  urg'd)  is  Judge  in  the  E.^anitnation,  yet  (incc  his  Proceed- 
ings are  rot  of  Record,  the  Caufe  of  Retu'al  is  traverlablc  ;  and  if  it  be  travers'd,  and  the  Party  re- 
fused be  alive,  it  fliall  be  tried  by  the  Metropoliran,  but  if  he  be  dead  it  fiiall  be  tried  by  the  Coun- 
try.    And  if  fuch  general  Allegations  be  admitted,  Patrons  will  be  much  prejudic'd  now-adays  in  their 

Pre.'cntations.     5  Bep.  57.  Hill.  52  Eliz.  B.  R.  Specot's  Cafe. Alias,  Specot  v.  Bifhop  of  Exeter.  

And.  189.  pi  225.  S  C.  adjudg'd.  • Goldsb.  95.  S.  C.  but  nojudgment. 5  Le.  19S.  pi.  251. 

S.  C.  but  no  Judgment. And  it  was  obferv'd,  that  it  appears  in  (.ur  books,  that  the  Caufe  of  Refulal 

ougiit  to  be  certain,  as  in  5  H  7-  19.  and  1 1  H.  -.  - .  8c  57  tjiat  the  Prefentee  is  a  Baft.ird,  niein,  Ifnhiu 

Jpi,  or  Illiterate  &c-    J  Rep.  58.  a. ♦*  Thefe  Words  fecm  to  be  wrong,  and  that  it  fliould  be  Arti- 

culi  i^Cleri.) 

^  So  as  this  Jll  is  a  Ltclar.ition  of  the  Common  L.:w  and  Cuftora  of  the  Realm.     2  Inft.  1^32. 

2.  Quare  Impcdit  againfi  the  KijJir.p  and  others  ;  the  Bijljop  falii^  that  he  S  C.  cited 
examined  thcCkvk.  of  the  Plaintiff  at  B.  in  the  County  of  C.  and  rcjiifed  him  '^.^ep.  67. 
jor  Noriabilit)\  and  ga^ve  Notice  to  the  Plaintiff  thereof^  and  be  did  net  pre-  ^-^■"''' 
font  another  ivithin  6  Months,  by  'which  he  prcjented  ly  Lapfe ;  and  the  Plain- 

tff  faid^  that  his  Clerk  was  2llc,  and  becaufe  tlie  Clerk  is  now  dcad^  this 
cannot  be  try'd  by  the  Metropolitan  by  Examination,  and  therefore  it 
was  try'd  per  Pais,  and  this  by  the  County  oj  C.  zvhcre  the  Examination  ivas, 
and  not  by  the  County  of  J3.  where  the  VV^rit  is  brought  ;  quod  nota. 
Br.  Quare  fmpedit.  pi.  102.  cites  39  E.  3.   i,  2. 

3.  In  ^iiarc  Impedtt  if  the  Eijhop  jujlijies  the  Rtfufal  of  the  Clerk  be- 
caufe the  Church  was  litigious  'till  he  inquired  De  Jure  Patronatus,  hejlall 
fiQt  traverfe  all  Refufals  after  the  Inquiry,  by  reafon  that  he  has  juitificd  be- 
fore j  and  if  the  Plaintiff  alleges  other  Rejufal  after  the  Inquiry  De  Jure 
Patronatus,  this  is  a  Departure  and  Jeofail ;  for  h2  relinquilhes  h^s  tirll 
Day  alleg'd  of  the  Refufal  which  ought  not  be  ;  for  if  he  will  have  Ad- 
vantage thereof,  he  ought  to  have  aileg'd  this  Day  at  Hrlli  for  he  Ihali 
allege  only  One  Day.     £r.  Repleader,  pi.  41.  cites  33  H.  6.  13. 

4.  The  Ordinary  commanded  the  Clerk  to  come  to  him  afterwards  to  be 
examined,  becaufe  the  Ordinary  had  then  ether  Bujinefs.  And  there  the 
better  Opinion  was,  That  it  was  3.  good  Plea  for  the  Ordinary,  that  he  did 
tiot  refiife  the  Clerk,  but  that  the  Clerk  did  not  return  to  him  ag.iin  ;  and 

that  the  6  Months  palled,  fo  as  he  made  the  Collation,  and  tnatthe  Pa-  *  This  Is  at 
tron  made  his  Prefentation  too  late,  fo  as  he  h.id  not  convenient  T  ime  to  /^  ^  "■  "' ' 
examine  hiin.     3  Le.  46.  Mich.  15  Eliz.  in  C.  B.  cited  by  Lord  Dyer,  §  ^  \')U~i. 
as  *  14  H.7.  '        -!a.b.  8.3,' 


(A.  b.)     Bijiurbcwce   by  the   Ordinary.      //7.V7;  ^4?  vvillsee  (z.a  i) 
make  the  Ordinary  a  Dilturbjr.  ^  ' ''     "'"' 

I-  T  if  tIjC  Ortlinan)  atlUUtd  anU  inftitutcs  the  Prcfcntec  of  the  Chan- 

1  ceiior,  anB  rcaD.2i  to  tijc  ^licljtscacon  to  make  Iiimiction,  nnn 

SftCC  tljC  King,  betorc  liduction  UinOC,  leads  an  inhibition,  reciting,' 

41  1  u.ir 


r^c^o  Prefcntation. 


That  ihc  Church  is  of  the  Value  of  40  1»  pet  3mUim,  anU  fO  It  UOC0 
not  bCioniJ  to  tlje  CljanCCUOt  to  prCtCnt,  coinmancls  the  Ordinary  to 
receive  J.  S.  his  Clerk,  whom  he  prelents  i  if  tljE  Ordinary  does  not  lend 
to  the  Archdeacon  not  to  make  Induction,  but  iulfcrs  tl)C  3!miUftiOU  tO 

bt  mane  a  S^onti)  after,  Ije  fljall  not  be  aoung'O  a  Diftuibcri  foe 
tljcrc  10  not  anv  Defr.uit  III  Ijum    38  €♦  3»  4*  9^   $iOjunij'D» 

2.,  But  in  ti)l0  Cafe  it  the  Inhibition  had  come  fO  tije  ©iGmaVP  be- 
fore the  Warrant  made  to  the  Archdeacon  tO  maUeJlfOlUtlOn,  if  ijC^had 
made  the  Warrant  alter,  bp  UJljlClj  \}Z  1)<B  bCtll  HlHUCter!,  tje  fljOUlD  be 

a  IDifturben    38  €,  3*  3* 

3.  In  Quare  Impedit,  the  Bilhop  pleaded,  that  he  claimed  tictking  in 
the  Patronage  but  as  Q-rditiary  ;  A  W  rit  to  the  Bilhop  is  thereupon  awarded 
againll  him,  and  after  he  collates  ;  This  makes  him  a  Dillurber.  8  H.  4. 
22.  b.  23.  pi.  8.  Bilhop  of  W  inchelkr  v.  Rye  and  Ux. 

4.  V\  here  a  Man  prefents,  and  his  Title  ts  found  upon  a  Jure  Patrona~ 
tits,  and  he  [ties  to  have  his  Clerk  admitted,  and  after  another  prefents  i  there, 
if  the  Btpop  could  have  admitted  and  mjiituted  the  Clerk  of  htm  who  had 
iheVerditf,  and  does  mt,  but  dcf errs  it 'till  the  Lapfe  falls,  and  then  pre- 
fents  his  own  Clerk,  in  this  Cafe  he  is  a  DilturLer  againlt  Both  the  Pre- 
lentors  3  and  Iffiie  Ihall  be  taken^  Whether  be,  who  prefented  and  had  his 
Title  found,  ftcd  to  have  his  Clerk  admitted,  or  not  ■.,  and  IVhetker  thefecond 
prefented  to  him  fo  hajfily  that  he  could  not  admit  the  Clerk  of  the  Jirfi  by  due 
Procefs,  before  the  Prefcntation  of  the  fecotid^  or  not.     Andfo  the  Church  is 

p  ^,  ^-  ?5'.  »'it  litigious,  but  "where  *  two prefent  feverally  at  one  Time,  andbothTitles  are 

found  by  diverfe  Commifftons  ■■,  or  -where  one  prefents^  and  his  Title  is  found  by 

Commiffton,  and  before  that  the  Bifjop  can  admit  his  Clerk,  another  prefents^ 

quod  nota.     Per  Newton  i  li  two  prefent  to  one.  Chnrch.  at  one  Tme  now 

the  Church  is  litigious  i  and  there,  if  after  the  Title  is  found  by  CommiC 

lion,  the  Hands  of  the  Bilhop   are    clofcd  from  taking  Benefit  by  the 

Litigioufnefs,  unkfs  the  other  fues  a  Ne  Admittas;  lor  he  is  bound  in 

Right  to  admrt  his  Prefentee  for  whom  his  Title  is  found  i  and  in  this  Cafe 

Diver fe  Commifftons  ought  to  be  awarded,  and  the  Bilhop  ought  to  give  to 

the  Commiffioners  diver  fe  Days,  and  ought  to  warn  the  one  of  the  Day  given 

in  the  other  Commiffton,  fo  that  they  may  have  Notice  to  come  and  give 

their  Evidence,  and  yet  fuch  Titles  found  there  Jhall  not  conclude  the  other 

Party  in  j^uare  Impedit  i  for  it  is  only  Inquefl  of  Ofjice.   Br.  Quare  Impedit. 

pi.  80.  cites  21  H.  6.  44. 

Refiifiigio         _j.  Where  different  Pcrfons  prefent  their  federal  Clerks,  and  the  Ordinary 

a^jiard  ajtire  ^^^gpfj  f/^g  Prefentee  of  the  one  without  Inquiry  De  Jure  Patronatus,  he  is  a 

^heThcTs     Dillurber i    Per  Port.  Quod   Newton  &  Markham  concellerunt.     Br. 

i-equirtd,       Quate  Impedit,  pi.  83.  ekes  22  H.  6.  25. 

makes  him  a 

Diftuibcr.    Br.  I^Iugation.  pi.  5.  cites  55  H.  .6.  15. Br. Quare  Impedit.  pi.  12.  cites  55  H.  6.  12. 

*  Orig.  is  6.  If  a  Dijiurber  prefents,  and  the  Bifhop  inquires  De  Jure  Patronatus, 

( Prcient)       -jnd  another  is  found  Patron,  thei  e,  if  he  will  prefent  within  the  fix  Months, 

the  Edhfons  ^^''^  Bijhop  is  bound  to  admit  his  Clerk  j  but  if  he  does  not  prefent  he  ought  to 

'  *  admit  the  Clerk  of  the  DtJturber.  Agreed.     Br.  Quare  Impedit,  pi.  12. 

cites  33  H.  6.   12.  &32.     34  H.  6.  n.  38.     and  35  H.  6    18. 

7.  It  there  are  two  Parfons,  and  the  Bifiiop  admits  the  Clerk  of  the  true 
Patron,  yet  this  is  no  Exciife  in  .^uare  Impedit  ^  lor  //  is  no  Plea,  that  he 
was  Verus  Patronus.  Per  Prifot,  Quod  non  Negatur.  Contra,  If  he  had 
inquir'd  De  Jure  Patronatus.  Br.  Quare  Impedit.  pi.  12.  cites  33  H.  6. 
12.  &  32.     34  H.  6.   ri.  38.     and  35  H.  6.  18. 

8.  W  hether  if  the  Plea  of  the  Ordinary  be  infufficient,  he  fhall  thereby 
be  a  Dilturber?  Goldsb.  35.  Arg,  fays,  It  feems  that  he  Ihall,  and  cites 
14  H.  7.  21.  b.  and  5  H.  7.  20. 

9.  If  after  a  Jus  Patronatus,  he  admits  the  Clerk  of  the  Patron  againfi 
whom  'tis  found,  'tis  at  his  Peril,  both  as  to  the  Title  itfellj  and  fuch  Pa- 
tron's defending  it.     And  'tis  againll  Jultice  and  the  Intent  of  the  Law, 

to 


Prefcntation.  35^ 

to  put  the  Party  to  the  Delay  and  Charge  of  a  Trial,  and  then  aft  con- 
trary to  the  Finding.  And  the  Books,  which  fay,  that  the  Ordinary  is 
to  judge  of  the  better  Title,  mean,  that  he  is  not  to  prejudge  of  his  own 
Head,  but  Secundum  Allegata  &  Probata  upon  Verdici  given  ol  the  Right, 
and  found  according  to  the  Form  of  Law  to  give  Inltitution,  which  is 
his  Judgment,  and  Induftion  which  is  his  Execution.  And  if  the  Pa- 
tron bring  Quare  Impedit  againft  theUfurperand  Incumbent,  not  naming 
the  Bifliop,  and  makes  good  his  Title^  lie  may  have  an  Aflion  en  the 
Cafe  againft  the  Ordinary  for  that  --joilful  zirvfig  Delay  and  T'roulde  that  he 
hath  put  him  to,  and  iliall  recover  Gfis  and  Damages^  not  in  refpe6l  to 
the  Value  oi  the  Church  (for  there  is  no  Damages  for  that  by  the  Com- 
mon Law  but  by  the  Statute  oi  W^eftminfter  2d.)  but  for  the  other  Re- 
fpec'ts.  But  if  he  name  the  Ordinary  in  the  J^uare  Impedit,  he  can  have 
no  other  Aclion  on  the  (^afe;  neither  can  he  have  fuch  Action  on  the 
Cale  belbre  he  has  tried  his  Titk  in  a  proper  Aftion,  and  againlt  the  pro- 
per Parties.  Per  Robert  Ch.  J.  Hob.  317.  Pafch.  17  J.ac.  in  the  Cale  of 
£lvis  V.  Archbiihop  of  York,  Taylor  and  Biihop. 

10.  Biihop  refufes  a  Clerk  for  hifuffictency.  Upon  Notice  the  Patron  pre- 
fents  another.  The  Billiop  within  the  6  Months  admits  the  firft.    Per  Cur 
The  Biihop  is  a  Difturber  j  for  he  can't  accept  afterwards  a  Pcrfon  refufed 
by  him  for  Infufficiency,     Cro.  E.  27.  Pafch.  26  Eliz.  C.  B.     Billiop  of 
Hereford's  Cafe. 

11.  Ordinary  may  examine  and  refufe,  but  both  muft  be  in  convenient  Twenty-two 
Time,  tVit  by  his  Dday  he  is  a  Difturber.     2  Saik.  539.   iMich.  3  W.  &  ^avs  held 
IvJ.  B.  R.  Hale  v.  Biihop  of  Exeter.  Delav.^"  Le 

52.  pi.  99.  Tiin.    27  Eliz.  in  C  B.     Albany  v.  BilTiop  of  t)t.  Afa^h. 

12.  It  was  objeiled.  That  the  Billiop  not  giving  Notice  of  Rfiifal  for  II- 
literature  till  32  Days  after y  was  a  Difturbance  Iplb  Faftoi  but  the  Court 
gave  no  Opinion  in  this  Point.  Carth.  312.  I'im.  6  \\\  &  M.  B.  R.  in 
Cafe  of  Biihop  of  Exeter  v.  Hele. 


(A.  b.  z)    Difturbance.  How  punlfh'd.   Pleadings  &c. 

I.  fTp  HE  Bipop  inciunber'd  the  Church  after  a  *  Ne  Aimittas  dirc^edto  *  ^^'i.c^-  ^ 

X     ^'W  within  the  6  Months^  and  the  Patron  brought  Quare  Impe-  '■^""  ^"'"^' 
dit,  and  recover'd,   and  had  Writ  to  the  Biihop  to  dilincumber  the  "^g^^" jji" 
Church,  who  faid  that  he  had  admitted  the  Plaintilf ;  Et  non  Allocatur.  Editions,  bat 
The  Reafon  feems  to  be,  inafmuch  as  he  travers'd  the  Incumbrance,  and  t'/e  Vc.ir- 
upon  the  Incumbrance  found  it  was  prayed  that  the  7ei/ipora/tics  he  i'etftd.  nook '-^'.Ne 
as  upon  Attachment  upon  Prohibition i  oc  non  Allocatur,    hr.  >^uare  Im- 
pedit, pi.  145.  cites  21  E.  3.  3. 

2.  Quare  Impedit  againjl  the  Bipof  of  N.  and  others;  and  at  the  Di- 
Jirefs  the  Bif.vp  apjiear'd,  and  the  others  made  Default.  Chaunt  laid  the 
Billiop  claims  nothing  but  as  Ordinary:  Judgment  if  witiiout  fpeciai 
Difturbance  Ihewn,  the  Plaintiff  aliign  Tort  in  him.  Caund  faid,  VVe 
relnafe  our  Damages ,  and  pray  Judgment  and  Writ  to  the  Biihop.  But 
per  Babb.  This  cannot  bej  tor  the  Damages  are  not  ta.scd,  but  it  pall  be 
recorded  that  you  wiil  not  ha-ve  Damages  j  and  fo  it  was,  and  he  had  Writ 
to  the  Biihop.     Br.  Quare  Impedit,  pi.  150.  cites  10  H.  6.  4. 

3.  The  Bijhop  mxy  be  a  Difiurber  withiu  the  6  Alonths,  and  it  is  no  Plea  Jt  in(>!are 
in  Qiiare  Impedit  or  Trcfpafs,  to  jifltfy  by  Matter  happening  pending  the  Imdedit 
IFrit  ;  for  it  is  brought  of  Difturbance  belbre  the  Writ  brought,  which  ^J^"'^^r% 
was  a  Tort,  and  cannot  be  defended  by  Matter  fubfequent.     Br.  Qiiare  ^,'j  w'^D. 
Impedit,  pi.  80.  cites  22  H.  6.  zSdc  29.     Per  Kcwton  and  Pafton.  the  BijUp 

faid  that  he 

chimeii 


1^2 


Prefentation. 


c, aimed  ttcdwz  but  as  OiiH>iary;  Judgment  if  without  Ipccial  Dillnrbance  Aition  may  he  have,  the 
Ihimif  faiii  that  he  prcfented  hti'Cierk,  and  lie  Officer  exawined at.d  jou>^J  I i»i  .-ible,  and  the  frjlip  aru/d 
not  recer.e  lim,  hut  prcfei:ted  ivithm  Jix  Months  or.e'J.  &c.  The  De\atdaiit  faid  that  he  Exan.h.eci  hmi,  and 
did  not  find  him  fij^iier.tly  Letter'd  ;  and  they  were  compeli'd  to  join  Ifiue,  JLle  cr  Not  able  ;  quod  roti ; 
a-'d  ftt.dins  tie  Ijjue  the  Bijhop  Jccepted,  Inltituted  and  Indutted  him  ;  and  tlicicibre  the  Plaunitf  pray'd 
]w  I ud"nieiit  ot"  Damages  ;  and  Jungment  wu,s  that  he  recover  liis  Prefentment  and  Damages,  notwith- 
ftanriiiif^the  Bifhop  alleg'd  that  it  mif-hl  be  that  the  Clerk  ii/as  Kot  able  at  the  Time  of  the  Examination,  ajid 
had /c.%;r  better  after,  and  yet,  becaufe  by  the  Admittance  after,  he  hai  admitted  him  Always  Able; 
tlx-refore  Judgment  as  above'.     Br.  Quare  Impedit,  pi.  2Z.  cites  40  £.  5.  25. 

And  fo  4.  And  bv  fome,  W^here  the  Bifliop  pleads  Ne  difltirba  pas^  yer  this 

Tviicie  tii-i  ^,^u  no[  conclude  the  Bifl.op,  but  he  lluiU  lay  that  he  prefented,  and  his 
-'l{//'  {'id  Title  was  found  by  Jure  Patronatus,  and  he  prelented  his  Clerk.  Br. 
'he'tref^nts  hy  Quarc  Impedic,  pi.  8q.  cites  22  H.  6.  28.  29. 

Lap/c,  and 

.-if'rer  the  one  brines  ^iiare  Impedit  a^ainjl  the  oiler,  and  he  pleads   "Ne  difiirba  pas,  yet  the    Bifliop  may 

ihew  the  Matter.     Br.  (;^uare  Impedit,  pi.  So.  cites  22  H.  6.  2S.  ay. 

5.  Q^Liare  Impedit  by  two  againjl  an  Jhhot  and  \V.  C.  Prcccfs  continued 
to  the  Dijirefsj  and  the  Dtfcndants  made  Defatdt,  and  a  V\  rit  iliued  to 
the  Btfiop  for  the  Plamtijfs^  -vohich  was  returned  Not  fervcd^  and  yJlias 
and  Pliirics  aii-arded^  and  then  the  Bi/iop  returned,  that  the  iphoj  OffoLer 
1463.  J.  S.  the  Parfon  Sec.  refignd  to  him^  to  --jchuh  he  agreed^  and  ac- 
cepted the  Relignation  ,  and  the  ^th  of  December  next  the  Bijbop  certified 
the  yiilot  then  Patron  oj  the  Rejignatton^  and  the  Church  remained  void  till 
the  zSth  of  January,  by  -which  the  Bipop  hy  Lapfe  7nade  Coilaticn  to  W.  C. 
Clerk,  who  was  Inltituted  and  Indufted  ;  and  ajtcr  this  Writ  ivere  deliver- 
ed to  hnn  the  12th  July  lafi  ajter  the  Collation  by  Lapfe.  And  by  fome  the 
Certirication  is  not  good  ;  for  the  Rtjignation  and  Collation  ivere  made 
pending  the  .^lare  hnpcdit.  Per  Cur.  This  does  not  appear  to  the  Court,  nor 
ifVi.C.  "who  IS  prefented  be  the  fame  Perfon  who  is  Deiendantj  therefore 
it  ought  to  be  Jhewn  by  the  Plaintiff.  And  bvfome,  He  w^ho  is  Defen- 
dant ihall  be  bound  by  the  Judgment  of  the  Plaintiff,  if  he  be  the  fame 
Perf  ni  who  is  prefented  i  for  he  is  Party  to  the  W^rit,  and  he  who  pur- 
chafes  pending  the  Writ  Ihall  be  bound  :  Contrary  of  the  Bilhop  here, 
he  fliall  not  be  bound,  for  he  is  not  Party  to  the  W^rit ;  and  therefore  if 
the  Plaintiff  will  not  plead  certainly  that  the  one  and  the  other  is  one 
and  the  fame  Perfon,  it  ihall  be  intended  that  he  is  a  Stranger  of  the 
fame  Name;  and  therefore  he  averr'd  accordingly,  and  that  the  Abbot 
was  not  Verus  Patronus,  and  there  it  is  agreed,  that  upon  Death  of  the 
Incunibciit  the  Bilhop  Ihall  not  give  Notice  to  the  Patron:  Contrary 
upon  Relignation.  80  upon  Deprivation  ;  and  by  the  Judgment  in  the 
Quare  Impedit  the  Abbot  loll  his  Patronage,  and  was  not  any  longed 
Patron  ;  and  therefore  the  Notice  made  to  him  after  the  Judgment,  is 
not  good  bv  Ibmc.  Br.  Quare  Impedit,  pi.  123.  cites  5  E.  4.  115. 
*  It  is  a  good  6.  The  Bijbopfaid  that  he  claimed  nothing  but  Adviiljion  and  Injlitutioit 
^/''^r  ^75  Ordinary  ;  Judgment  if  without  alleging  Ipecial  Diilurbance  &c.  Ac- 

Ordinary,  tion  lies  i  and  the  Plaintiff' alleg'd  Prejcntatwn  to  the  faid  Bijhcp  fiich  a 
aid  the  -D^J',  ^fd  he  reftifed,  and  fo  dijlnrb'd  &c.  and  then  the  Bt/hop  jhew'd  that 
Church  was  the  Church  before  this  Prefentation  was  *  litigious  by  Prefentnieni  before  made 
Br-^ke^Vav!  ^-^'  ""^  ^-  ^^'^  ^^  ^^^  *^'^  there,  that  upon  the  firlt  Plea  the"^ Plaintiff 
Ouareifthis'  m'ght  have  Writ  to  the  Bilhop  j  contrary  upon  the  lecond  Plea,  and  fee 
b"e  intended  the  Pleading  of  thofe  Pleas  there.  And  per  Cur.  The  firll  Plea  is  a  good 
?.ood,<ixHhc::t  Plea.     Br.  Ouare  Impedit,  pi.  1 19.  cites  5  H.  7.  19. 

Jj:eiving  that  ^  r  3  f  >■  J  /       y 

hie  had  awarded  a  Jure  Patronatus  thereof.     Br.  Quare  Impedit,  pi.  119.  cites  7  E  9. 

7.  In  Quare  impedit  againfl  the  Bif}:iop  of  C.  the  Plaintiff' counted  how 
he  was  feijed  of  the  jidvowfon,  and  prefented  N.  who  was  Admitted  and 
Inltituted  &c.  and  ajter  N.  died,  and  the  Church  voided  by  6  Months, 
and  the  Bifhop  made  Collation  to  one  M.  by  Lapfe,  who  was  in,  and  ajter 
died,  by  which  the  Church  voided,  and  the  PLuntif  prefented  &c.  The 
Dej  end  ant  faid  that  J.  B.  prefented  this  fame  M.  to  the  .Defendant  as  Or- 

dmarr. 


Prefentation.  353 


Jina^y,  at  whofe  Prefentmnt  be  received  him  as  Ordinary,  by  la^htcb  he  ojas 
liijtitiitcd  and  Induced,  Abfqiie  hoc,  that  he  made  Collation  modo  ^  forma 
pro:tt  the  P/arutiJf'  fuppofes.  And  per  Keble,  Fineux,  Townfend  and 
Brian  Ch.  J.  this  is  a  good  Plea  for  the  Ordinary  tojheiv  that  another  is  Pn' 
trcn  and  not  the  Plaintiff  tho'  he  does  not  niukc  to  hiinfelf  Title  to  the 
Advowfon  j  tor  the  Ordinary  has  Intereit  to  meddle  with  the  Church,  as 
in  Aliife  of  Rent  the  Tenant  ihall  compel  the  Lord  to  make  to  himfelf 
Tide  to  the  Rent ;  for  there  is  Privity  between  them  and  bePiveen  the  Or- 
dui.ny  and  the  Patron  i  As  in  Wail;  tlie  Tenant  may  O.y  that  the  Lclibr 
has  granted  the  Reverlion  to  J.  F.  to  whom  he  has  a'ttorn'd.  So  oi'a 
Seigniory  granted  &c.  And  fo,  that  a  Stranger  has  recovered  the 
Seigniory  againlt  the  Lord  ;  for  the  Ordinary  may  travcrfe  this  fhing  al- 
leged ag'unji  himj  which  proves  him  to  be  a  Dijhirber^  without  alUging  title 
in  the  other  Per fon.  And  Per  Rede,  Jay,  Vavilbr  and  Da  vers,  T^his  is 
no  Plea  J  for  he  does  not  plead  as  Ordinary,  as  to  f;iy  that  he  claims  no- 
thing but  Admilhon,  Inrticution  and  Induction  as  Ordinary;  Judgment 
if  without  fpecial  Diiturbance  &c.  or  to  fay  that  he  Ne  Dilturba  pas  ; 
for  then  the  Plaintiff  Ihall  have  VV^rit  to  the  Bifhop  immediately^  or  to' 
fty  that  the  Church  is  Litigious,  or  that  his  Clerk  isCriminofus,  but  can- 
not inticle  a  Stranger  without  intitling  himfelf  But  Brian  and  Townf- 
end Contra  ;  for  otherwife  there  iliall  be  a  Mifchiel,  that  the  Bilhop 
f.iall  be  bound  to  admit  the  Clerk  of  whomfoever  will  prefent  to  him, 
which  is  not  Reafon  :  Et  adjournatur  j  for  the  Ordinary  has  lawful 
meddling  with  the  Church,  As  the  Tenant  has  with  the  Seigniory  or 
Re\erlion.     Br.  Ouare  Impedit,  pi.  120.  cites  5  H,  7.  33, 


(B.  b)     *  Admi ITion.  t  Inftitution  and  \  Indudion. 
nxihiit  'Tb'iiifrs  it  ILall  be  made. 


0/ 


'•A 


*  .  Iihniffio-ri 

Donative  map  pars  by  »Stft  of  lay  patron  tuitljoiit  Iafiim=  i>,l';';!|;^ 
trail  or  Jnmimon.   iDa*  i*46.b.  E.umiauioti 

ndmits  liim 

to  be  able,  and/n/  Aimitto  te  habilem.    Co.  Lite.  344.'  a, S.  P.  Fin,  Law  Svo.  89. — S.  P.   Godolph. 

Ecp  "-z.  cap.  24.  S.  6. 

t  /«/?/</iY,\i?.' /j  wlien  tlie  Bifhop  fays,  hflitno  te  ReHcrcni  lalis  Ecckfix  cum  Cura  Ammarum  Py  JccipB 
Qtram  tiiatn  &=  rre.vn.     But  (bmctimcs  in  a  more  large  Scnfc   ■/•hnijjhs  riith  inchide  Inpittitus  atfo  ;   Cuiu.s 

prxfcntatus  fit  Admiilus,  i.  e.  Inftitutus.    Co.  Lit.   544.  a- S  P.  Fin.  Law  Svo.  tiy.— ^S.  P.  Godolph. 

Rep.  2-4.  cap.  24.  vS.  S. 

:[: /K'V/rfl'i')-' ij  nothing  elfe  but  the  Putting  of  the  Perfon  into  Aftu.il  PofTefiion  of  the  Church  and 
Glebe,  which  areTeniporalties  of  the  Church,  or  the  Making  ot  a  Clerk  C.imuleat  Incumbeiit  of  ths 
Cliurch  ;  Thi.'!  is  Indudtion,  and  it  i.s  by  Letters  frnm  the  Bifliop  of  the  Diocefs  diredted  to  all  and  fin- 
gular  the  Clerks,  Reftors,  Vicars  S;c.  within  the  iaid  Diocefs,  to  put  the  Clerk  or  his  Lawful  Attor- 
ney for  him,  and  in  hi^  Name,  into  the  artual  PolleiTion  of  the  Church  to  vvl-.ich  lie  had  been  Prelented 
and  Infliiuted,  together  with  all  the  Profits,  LXies,  Members  and  Appurtenances  vvlwt(oe\'cr  thereunto 
Beloi^ging  or  Appertaining  ;  of  the  due  Execution  whereof  a  Certificate  endorfcd  on  tlic  Inflrument  of 
Induction,  and  iubicribed  by  a  competent  Number  of  Witneifcs,  dught  to  be  returned  to  the  laid  Bifhop 
as  Ordinary,  who  may  appoint  the  Archdeacon  to  give  Induction.     Godolph.  Keu.  2-S.  cap.  24.  S.  16. 

Induftion  is  done  in  the  following  Manner;  one  of  the  Clei'gynien  commifrioned  takes  the  Perfon  to 
be  Indufted  bv  the  Hand,  lays  it  on  the  Key  of  the  Cinirch,  and  pronounces  tho'e  Words,  Bv  Virtue 
ofthisCommilTion  I  Induct  you  into  the  Real  and  Actual  Poilclfion  of  the  Rectory  of  8cc.  with  all  its  Ap- 
purtenances;  then  he  opens  tiic  Church-door,  and  puts  tiie  Parlon  intoPofidfion  thereof,  who  common- 
ly tolls  a  Bell  &c  and  thereby  fliews  and  gives  Notice  to  the  People  that  he  h.;d  taken  Corporal  Poflcf- 
/lon  of  the  (aid  Church.  If  the  Key  of  the  Church-doov  cannot  be  had,  the  Clerk  to  be  Inducted  may 
lay  his  Hand  on  the  Ring  of  the  Door,  the  Latch  of  the  Church-Gate,  on  the  Church- Wall  &c.  and 
either  of  thefe  are  fufficient  fco  it  may  be  by  Delivery  of  a  Clod  of  the  Giebe  Sec.  Jac.  Law  DiC;t. 
Verbo  Induction.     Cites  Country  Parf.  Comp.  21.22. 

2.  5n  tl^C  King's  Chapel  at  Weltminftcr,  \vi\;Z\\  il  Prebend  tS  ISOllI,  ^r.  Prcfen- 

tljetunn;  fijall  mafee  Collation  bv  a  Patent  to  luljom  13c  picaic,  atio '""""' P'„' 5- 
fcno  OipJ  unto  it,  aun  bP  J- nrcc  ttjcrcof  ijc  n)ail  take  13)aac!ric;u    1 1 '"? ' ' 
0*  4-  9*  ( i©iti}Gut  aiip  iuauiitiGu  or  Jnisuftioii  10  implieti . ) 

:?♦  KtljC  King  iirants  a  Free  Chapel  tO  aUCtiJCC,  tlC  OUl\!jr  tO  OC  *put  ^^/^-^'^ 
in  Poli^lFion  by  the  Sheriff.     14  ?)» 4*  1 1 .  b,  lJ^-v\J 

Ci^,dol')h.Rep.  i-f).  c-itp.  24.  S   10.  S.  C  and  P.  VS'atf^  Comn.  I.ic.  Svo.  a-6.  cai.  15    ^itj.,  .S.C 


354 


Prefcntation. 


4,  'if  a  ClCl'U  tic  prCfCntCU,  IjC  \M  not  Polleliion  beloie  Induaion. 

II  ix  4*  9*  Coin*  J^''ii'(''  ^/'-^  52S. 

s'.  3'ttlje  i:>ilht>P  ol  Sarum  be  Patron  of  the  Church  of  S.  tUlJIClj  10  Pre- 
ftn'tiu\c,  and  lies  within  the  Dioceis  of  Sarum,  and  it  is  the  Curps  of  a' 
Prebend  in  the  Church  of  Sarum,  ntlH  tl)el3lfl)0p  Of@>nuum  is  alio  Pa- 
tron of  tl)C  CijUrClj  of  i>-  which  is  Prclentative  alio,  and  lies  within  the 
DiocefsofWinton,  aUtl  afttt  ttjC  €l)UrCl)  OfJ).  is  united  to  the  faid 

Prebend,  uutl)  tljc  aiftiit  Of  tijc  l^ifljop,  fiuti  Dcau  aiiti  Cljaptcc  of 
liott)  Diuccftcs,   15j)  tijisi  iimou  botlj  ^iDijiirctjcs  ace  lo  aunccco  ana 

UmtCtI,  tljat  U  tijC  I5li\m  of  g)aVUm  collates  a  Cletli  to  the  prebend, 
and  he  is  tljClXlipOn  inltall'd  in  the  Cathedral  Church  ot  Sarum,  he  has 

therebp  Poiieiiiun  of  both  Cijurcljrd  luitijout  anp  pixrentatton,  35^ 
niimon,  Jnmtution  or  Jnoiiman  to,  or  Lip  tl}c  bifljop  of  jpintonj 
for  inafnutcij  as  Ije  Ijas  riJoiTcfl'ion  of  tljc  [3rclienD,  Ijc  tijcrenj?  Oast 
i3onciVion  of  tljc  corps  oftljc  i^reLienii,  auDbptljc  tmon  tljcCtjiirclj 
of  D.  IS  {Parcel  of  tijc  X^oOp  of  tljc  prcbcao*  \X  lo  Car.  15.  K» 
bctiuccn  itich  cuid  Heitier  upoit  CtiDcncc  at  "Bat 

m  an  Ocrtionc  Jflrni*,  upon  tljc  -^rttal  of  a  eitic  of  a  Icafc  maCe 
bpiuclji5rel:cntiarp  before  tljc  ©tatute  of  13  CU  of  tljc  COurclj  of 
D.  luljiclj  uias  nof  conftrmcti  bp  tljc  imm  of  ilBuiton,  but  onlp  bp 
tljcX^injop,  Dean  anti  Cljaptcr  of  g^aruaii  ann  tijis  tielD  per  Cti^ 
nam  to  be  ixooo  for  tljt  CniUe  aforefiiu, 

6.  By  the  Laws  of  England  the  Afts  ol  Prefentation,  Inftitution  and 
Induftion  are  all  /hithonttes  given  by  Law,  and  wtift  be  executed  acoyrding 
to  the  Form  prefer ibcd  by  Law,  and  cannot  be  modihed  ;  for  Aftus  legitimi 
non  recipiunt  Modum.  For  the  Law  gives  the  CJiurch,  and  not  the  Pa- 
tron and  Ordinary,  who  are  but  Ceremonious  Miniilers,  and  are  ap- 
pointed their  Manner  ;ind  Form,  which  they  may  neither  Exceed  nor 
Abridge.     Hob.  153.  in  Cafe  of  Golt  and  Glover  v.  Bilhop  of  Coventry. 


(C.  b)  By  rjohom  it  iliall  be  made.     Admiffion.     Infti- 
tution.    Inclusion. 

,1   Tif  Archbilhop  villts  his  inferior  Bifl^.op,  and  inhibits  him  during 
pHVZ    "1   theVifitation,  if  tl]C  Bilhop  has  Title  to  collate  tO  a  ToCncaCC 

Biflioptoin-wi^in  his  Diocefs  bp  caitfc  Of  Lapfe,  pct  ^c  cannot  inflttutc  ljl0 

ftitut-,  but    rtfjcvl^    but  ought  to  prelent  to  the  Archbilhop,  and  he  ought  to  miti- 

t'.^^!"'^""-,  tute  ijun,  bccaufc  curmn;  tljc  Jnljibition  lji£S  i;i)oUicr  of  JitrisCteion 
Z^^ '  iss  furpcni^cri.  ^rui.  13  Car.  06.  E.  benucen  Dodjhn  and  Lynn  w 
an  a"  t  of  luas  a  l^onit  upon  a  fpecial  ©crtuct  in  tlje  Countp  of  lincpln,  ana 
jurifdiftion,  (j,p  (£iviiiian0  uiljo  araueu  tljid  fccmctJ  to  agree  it,  but  tljc  Cafe  m^ 
heTs  Sr""  Jirgueri  upon  nnotljer  Ipoint,  anD  tljfs  not  rcfol^jco.   ijntratuc  '^r. 

vended.  Bnt   11  Car,  ROt.  446. 

QudlioninCareof  ,rG/to;»«.  whether  If  a  Upfc  happen  the  Bif!iop  may  colbte?  But  the  better  Opi- 
nion i,s  he  cannot  ;  bec:iure  it  is  not  by  way  of  hiterefl,  but  by  way  of  Provijion  Jor  the  Cure,  and  t» 
llipplv'the  MeRli-encc  of  the  Patron  This  appears,  bccaufe  the  Patron  may  prdent  at  ;wy  tirae  at.er 
a  Lapie,  and  befo^'re  Collation.  5  Salk.  202.  cites  Pafch  , ;  Car^  B^  R.  Lunne  v  Dodfon  __  Cro  C 
A-';  S  C  and  bccaufe this  and  another  Point  there  concerned  Ecclefiaftical  jur  (diftion,  the  Com t 
required  to  hear  Civilians,  and  it  wa,  argued  accordingly;  but  the  other  Pomt  being  clear  tor  the. 
Defendant,  Jud£;,Tcnt  was  given  for  hire  upon  that  Point,  and  then  this  not  being  materwl,  nothing 
more  is  there  faid  about  it. 

vvatfcomp.  z.  'QCtjc  ©rHiiiarp  fljaU  fcnuto  tftc  Archdeacon  to  mal^c  3!nmic= 
Inc.  8vo.     tion    38  C  3  3  b. 

cites  S.C.'^        3.*^1JC  Archdeacon  ^l  HW^C  tIjC  JlltlUftiOlU  38  C*  3-  3-  b. 

flioVmiv  d'ireft  his  Mandate  to  fuch  other  Qergymeo  as  he  pleafes  to  make  Induaion,  and  cites  Par- 
Tons  Counfellor  S.— The  Archdeacon  having  received  a  Mandate  for  Indudhon  makes  a  Precept  Omni- 
bus'Literatis  infra  Archidiaconatum  to  induct,  -i  Clerk  vot  Lehugh,?  to  the  Jrchdeacomy  made  the  In- 
duftion,  and  held  to  be  well  enough.  Arg.  Vent.  ;za  Mich.  29  Car.  z.  B.  R.  in  Ca'.e  of  Rob.n<on  v. 
Wolly.   Cites  Noy's  Rcyxjrts.   Bat  lays,  (.(.Jiixre  that_Cafe  ) 


Prcfcntation. 


355 


By  PrcllTiption  tIjC  Ooan  and  Chapter  Of  llCfjfiClD    tJUlUC  JltHUC^  ^"^"Ipl,'- 

1 1  Jp.  4-  y- 


Ke;.  2:S. 

So  Of  tije  iDcan  anti  Cijaptcc  of  paiiis.  i  r  j;).  4. 9.  f^^'att .s.' 

C — VVutC. 
Comp.  Inc.  Svo.  2-  5.  cap.^  i  5.  cites  S.  C.  And  tli;it  if  Induction  be  made  by  the  ArclibifTiop  when  ir  :ip- 
pei-tain,s  to  the  Dean  and  Cliaptei-  by  Pi-efcriptit):!,  tliac  Indu>:t-ion  i',  laid  to' be  void,  ti  H.  4.  y.    but  the 
contrary  is  lield  Fit7.h.  tit.  (^larc  Impcdit  1 62,  that  in  fuch  Cad-  it  is  only  voidable,  and  lb  rclblved.  Hii.1 
50  Sc  57  Car.  2.  C.  B.     5  Lev.  2u.  in  Cafe  of  Vt'ri^luon  v.  Brown. 

6.  !3ll  JntlttftlOlt  made  by  the  Bifliop  is  *  \oiti,  where  it  belongs  to  S.C.  cited? 
the  Dean  and    Chapter  by  Prefeription.      11IIX4.  9.  tl.     COUtl'il*     14  ^'^'^- -'^ '" 

lp.6.  ciuarc^mpcrnt  162.  anniDijco  ofa  t  i^rebcnd.  w^hton^. 

Brown  

*  But  Br.  Exccution.s  pi.  ^z.citc;  11  H.  4.  ;.  9.  fiys  it  i,s  ^irood  at  the  Common   Law. — Br.  Prefcr.tation, 
pi.  15.  cites  S.C  accordingly;  bccanfe  he  Is  Officer  and   Ordinary   immediate  to  tiic  Court,    and   the 

Court  will  not  take  Conulance  of  Peculiar  Jurildidiions. Godolph.  Rep.  278,  279.  cap  24.  S.  16. 

cites  S.  C. 

■\  Induction  of  a  Prdcnd.xry  mulf  be  by  the  Dean  and  Chapter,  and  not   by  the  Archdeacon.  PI.  C. 
529.  in  Cafe  of  Hare  v.  Bicklcy. 

7-  3n  IntlUftion  by  the  Patron  10  jjaiU*  1 1  0*  4.  10.  6odo!ph. 

Rep.  2-S, 

2-9.  cap.  24  S.  16,  cites  S._C — Wat r.  Com p,  Inc  Svo.  2-5.  cites-  S.C.  and  Parfons  Counfelior  S, 

But  Dr.  Vyatfon  fays,  he  fuppofes  this  is  to  be  undcrftood  where  it  is  done  of  his  own  Authority  ;  For 
he  fays,  he  doubts  not  but  that  a  l;ifliop  may  give  Induction  a.s  well  as  [nftitution  to  a  Eenef.ce  of 
his  own  Gift  where  tiie  Kight  ot  Induttion  to  a  Benefice  within  his  own  Diocels  is  in  him  ;  or  however 
that  an  Archdeacon  m.iy  induct  to  a  Benefice  within  his  Archdeaconry,  although  he  be  Patron  there- 
of; neverthelels,  the  Kule  is,  Modus  &  Convemio  Vicunt  Legem,  and  therefore  De  Jure  Com- 
muni  neither  Bidiop  nor  Archdeacon  may  induct  a  Clerk  to  their  Benefices  ot  whicli  tlicv  are  Pa- 
trons, yet  by  Prefcription  or  (^ompolltion  their  Iiduction  in  fuch  Cafe  muft  be  good.  And  accordintjly, 
though  the  Bifhop  of  Chicheltcr  does  admit  the  Dean  of  the  exempt  Jurifdiction  of  Battel  within  That 
Diocefs,  and  docs  commit  to  him  the  Cure  and  Juriidiclion  of  that  Church,  vet  the  Patron  thereof  is  to 
infti^ute  and  induit  tlie  Dean,  and  the  Patrons  accordingly  have  given  the  Deans  Irdlitution  and  Induc- 
tion for  fome  Hundreds  of  Years;  and  without  <^uertion  I uch  Intlitution  and  Induction  is  good  ;  but 
this  Deanry  was  originally  given  to  the  Incumbent  as  a  Donative  only  by  the  Patron,  and  tiie  Bifliop 
admits  or  approves  of  the  Patron'.s  Prclentee,  and  commits  to  him  the  Cure  and  Jurifdiction  bv  Coni- 
pofition  only.  \^'atf.  Comp.  Inc.  Svo.  27  5,  z-6.  cap.  1 5. R  S.  L.  4  Vol.  1 7.  S.  P. 

8.  'S^tie  Kind's  Grantee  of  a  free  Chapel  fljilU  bC  ptlt  Ut  l^OffcrOOtt  Godolph. 

by  the  sheiiit  of  tijc  Couiiti',  niiti  uot  bj?  tijc  ©rDinavi'  Of  tijc  Pace,  ^■'^i'  -■9„ 

14IP.  4.  Il.bv  ,0.  cites  S. 

C.  and  p. 
Watf.  Comp.  Inc.  Svo.  27*^.  cap.  15.  cites  S.C. 

9.  A.  and  B.  t-ivo  Pati'ons^  pretend  a  'Title  to  prefent.  A.  fircfcntcd  •■,  the 
Bijhop  reiicfed  ;  thereupon  A.  filed  in  the  Audience,  and  had  an  Inhibi- 
tion to  the  Bilhop.  And  afterwards,  upon  that  Suit  he  obtaiued  injiituti- 
cn  and  Indiiifton  by  the  Archbi/hcp  ;  alter  which  the  inferior  Bi/hop  inlti- 
tuted  and  tndiitled  the  Clerk  of  B.  \\  hereupon  Procela  ilFued  out  of  the 
Audience  againll  the  inferior  Ordinary.  Thereupon  a  Prohibition  was 
prayed,  becaufe  the  Eccleliallical  Court  ought  not  to  intermeddle  alter 
InitiLUiion  and  Induction  i  For  this  would  be  to  determine  the  Incum- 
bency. And  therelbre  ^iioad  the  Incmnbcncy  the  Prohibition  ivjs granted  ^ 
hut  not  qumd  the  Contempt  of  thi  inferior  Ordinary  in  granting  Inltitucioa 
alter  he  had  been  inhibited.  Moor  879.  pi.  iC3jr.  Trin.  15  jac.  Middle- 
ton  V.  Lawte. 

10.  Tho'  the  King  may  prefent  to  a  Church,  yet  he  ihall  not  collate, 
admit,  nor  inllitutei  tor  he  cannot  exercife  the  Spiritual  Funftion.  And 
if  he  brings  Qua.  Imp.  againlt  the  Killiop  and  recovers,  he  ought  not 
himfelf  tu  make  an  Admittance,  but  muft  fend  his  Writ  to  the  Bilhop 
to  do  it.     Arg.  2  Bull!:.  4.  in  Cale  of  Stevenlon  v.  W^ood. 

11.  The   ii//Z;r//)ni;/:  of  Gloucelter  being  'void,  and  the  ^rchbijl-cp  of  c;.c.:iYirucd 
Canterbury  Guardian  of  the  .Spiritualties,  a  Church  became -void.     The  Pa-  Vent.  509. 
tron  prefented  to  the  Archbijhop,  who  admitted  and  inftituted  the  Clerk,  I'atch.  29 
■.\v.^  granted  Mandate  to  the  An  hdeacon  jor  Induction,  which  was  by  an  In-  ,^^-.  f" 
llrun;ent  directed  to  certain  Parfons,  as  ulual,  to  do  it.     They  omitted  mj^j,!'  foi- 

ihe 


Q^i^6  Prefentation. 


lowing  it  x.he  doing  it  Ibr  2  or  3  Months,  -and  in  the  mean  time  a  Bipop  of  Gloti' 
wasargued  ^-^^,..  j^  made  and coiifecratcd,  ami  afterwards  the  Parfotis  made  the  Indue- 
adiudgcfci'  f!on.  Adjudged  per  tot  Cur.  that  the  Induftion  is  void  ^  For  though 
that  the  ill-  it  beh^ngs  to  the  Office  of  Archdeacon,  yet  his  doing  it  is  only  by 
duction  was  JVIundateand  Authority  of  the  Bifliop,  and  they  held  it  to  be  no  more 
v""^'  -  than  if  a  Man  makes  a  Letter  ol  Attorney  to  make  Livery  and  dies, 

C  i?diud"ed;  and  the  Attorney  makes  Livery  alter  his  Death.  2  Lev.  199.  Trin.  29 
but  Ibid''-9.'  Car.  2.  B.  R.  Robinfon  v.  Wooilcy. 

fays,  it  was 

afterv/ards  reverfediii  the  Exchequer  Chamber. See  3  Keb.  S.  C. 


Foi  55S.   ^j)_  bj  JP%iit  Thing    fliall    amount  to  Inftitution  and  In- 

du^lion. 

I.  nplp^  Provifion  of  the  Pope  10  a«5  mi  3!nffitUtiOlU     1 1  I).  4'  7^. 

1     i3» 

2.  And  when  tljC  ClCrfe  10  put  in  Execution  bp  fOTCC  Of  tl)E  lc)rOW- 

fion,  It  fijaU  beais  mi  Jnuuctioii  li)?  Jforcc  otttje  "BxM.  n  3|)»4. 

3.  A  Parfon,  Vicar,  or  Chauntery  Priell  may  be  admitted  and  infti- 
tuted  he  not  knowing  it.  As  if  the  Patron  fends  to  the  Eilhop  to  admit 
his  Clerk,  and  he  agrees  to  it;  and  if  the  Bifhop  fays,  in  the  Abfcnce  of 
the  Clerk^  to  J.  N.  I  admit  thee  to  the  Church  of  D.  in  the  Name  of  the 
Clerk,  this  Admilhon  is  an  Inftitution  though  the  Clerk  be  ablent-  but 
there  he  may  refufe,  becaufe  he  was  abfent  at  the  time  &;c.  Br.  Quare 
Impedit,  pi.  155.  cites  32  H.  6.  2S.  by  a  Do6lor  of  the  Law. 

4.  Where  a  Recovery  is  m  ^ta.  Imp.  and  the  Bifiop  upon  Prefentment 
will  admit  and  inltitute  his  Ckrk,  and  he  is  sndrufed,  and  this  without 
any  W  rit  to  the  Billiop,  This  is  good,  as  well  as  a  Man  may  enter 
without  an  Habere  facias  feilinam  after  Recovery.  Hutt.  66.  the  third 
Refolution  in  the  Cafe  of  Rud  v.  Bilhop  of  Lincoln. 


(D.  b.  i)  Admlflion,    Inftitution,  or   Indu6^ion.     Good, 
yind  the  Effdi  thereof. 


.p. 


jErfona  Ecclelis  numquam  dicitur  Iinperfonata  ante  Indu£tionem  j 

nee  habet  Jus  in  Re,  fed  ad  rem,  -ante  Induftionem.    D.  221.  b, 

pi.  19.  cites  Hill.  38.  E.  3.     Per  Thorp. 
But  it  was         2.  Note  that  a  common  Perfon  may  have  ^iiare  Impedit  againft   ano- 
Ir*^'  T»^S  ^h^''?  though  his  Clerk  was  not  indu61:ed  j  For  the  Entry  is  there,  Q^uod 
ofMio^fon  admiffus  &Ini!itutus  fuit.  Br.  Quare  Impedit,  pi.  1.  cites  22  H.  6.27. 

does  not  lie 

ivithout  InduBion ;  For  he  fhall  allege  the   Efplees,  as  in  Great  Tithes  and  Small  Tithes  &c.  Br.  Qi^nrc 

Impedit.pl.  I    cites  12.  H.  6.27  S.  P.  Ibid.pl.  to.  cites S.  C.  &  33  H.  6.  24.— S.  P.  Br.IKid.pl.  S;. 

cites  22  H.  6.25. 

The  Clerk        3.  The  Incumbent  has  no  Remedy  for  the  Profits ,    nor  can  he  try  his 
hTvet'hc       ^'•^^'^'  ^^^^  t"(i"^^f!on.  Per  Popham.  Cro.  E.   653.  Hill.  41.  Eliz.  C.  B.   in 
Profits  be-    ^^  ^afe  of  Quarles  v.  Fairchild. 
fore  Induc- 
tion, hwllhcOrtiwayy  ^hiUfeijUffler  xVitm.  Per  Nichols  J.   Roll.  R  46[.Parch.  14 Jac.  in  Cam.  Scacc  in 

the  Cafe  of  Colt  V.  Glover Inftitution  intitles  the  Parfon  10   the  fpiritiial  Profits  as  O  )lations  Sec. 

before  Induftion,  .and  he  is  liable  to  be  filed  for  uegleCtinf^  ibeCuie,  but  he  cnn  v:t  fue  for  Greail'/lhes , 
For  thev  are  TcmJor.U.  u  Mod.46.  pi.  12.  Pafch.  1705   B  K,  Anon. 

4.  Ad- 


Prefentation.  ^^  5  y 


4.  Admifiion,  Initicution,  and  Induction  without  a  Prefentation  is  -void.  ?■  P.  Ad- 

6  Rep.  29.  b.  Trin.  44  Eli..  B.  R.  Green's  Call-.  ^^^^^^^ 

Cro.  J.  252.  Mich.  S.  Jac.  B  R.  Iglinffon  li.  Cockit,  and  cites  S.  C. S.  C.  Cro.  C.  99.  100    Mich. 

5  Car.  in  Call-  of  ^tcpln'llSl).  |>Ottfr,  and  lays  it  was  rcfolvcd  accordingly.  Anno  SJac.  in  C.  B.— S.  C. 

cited  Arg.  Gibb.  5;.  Palch,  i  Geo.  z.  B.  R.  in  thsCafe  of  the   Kinc;  v.  tlie  Archbiflicp  of  Arma{Th  

and  cites  Cro.  J.  252.  Hunfton  v.  Cocket.  S.  C.  cited  Gibb.  ;4.  But  lays  tiiat  it  is-  to  be  undcrftood,  tliat 
they  do  not  put  the  rightful  Patron  out  of  Poflcllion,  but  tliat  he  may  at  any  Time  prcfent  or  bring 
Quare  Impedit,  and  lb  it  is  taken  in  Lord  Hobait  501,  3:2.  wliich  proves  that  it^uilGon  anD  COClutt'Sf 
Cafe,  which  is  founded  on  (HJrCfn's  Cafe  miftook  that  Kefolution  ;  therefore  though  tlie  King  niiglit  not- 
vithftandmg  fuch  CoHation  cither  prcfent  or  remove  tlie  Incumbent  by  (^uarelnipedit,  any  time  during 
the  Lifeof  kicli  Incumbent,  yet  itdoes  by  no  Means  follow,  that  the  CoUatee  was  not  acomplcat  Incum- 
bent during  his  Life  if  not  removed,  and  cites  Cro.  £.  207 .  240.   Dy.  295 ,  294 

5.  l[a.  Gijt  he  made  to  a  Parfon  lefore  Induftion,  it  is  good.  Arg. 
Goldsb.  163.  in  the  Cafe  of  Robins  v.  Prince. 

6.  Il'he  a/u'!jl)'Co/iJbjt  of  Patrofj  dfjd  Ori1ina;y  before  Induction,  it  is 
good.  Arg.  Goldsb.  163.  in  the  Caie  ol  Robins  v.  Prince. 

7.  Before  Indu£lion  he  is  not  Patron  toalllntents  ;  For  aGr^tJt of  yln- 
«,'///_)' before  Tnduftion  is  not  good.  Per  Gawdy.  J.  Goldsb.  163.  in  the 
Caie  of  Robins  v.  Prince    Cites  PI.  C.526. 

8.  He,  who  is  inltituted,  !?/^j  cuttnnto  the  Gkbe  Land  before  ladiiffic}!,  ^/rf before 
and  has  Right  to  have  it  againlt  any  Stranger.     Per  Coke.  Roll.  R.  192.  .  „  r";"^*^'""  c- 
Pafch.  13  jac.  B.  R.  in  the  Cafe  of  Hitching  v.  Glover.  /J^^/c'bThe  " 

Glebe,  nor 
can  he  receive  any  Tithes  as  Incumbent.  Watf.  Comp.  Inc.  Svo.  241.  cap.  15.  cites  2S  E.  5.  9.  26'  H.  3. 
cap.  15.  cites  S.C.  &  5S  E.  Sc  5,  4  &  22  H    6.  27. 

0.  By  Inflituion  the  Incumbent  has  Officinm^  but  Eaicficium  comes  by  Inftitution 
Induaion.  Per  Doderidge.  J.  Poph.  133.  Mich.  i^JacB.  R.   in  Rone  s  ^^'^^^  [^';,= 
Cafe.  Souls,  but 

the  Tempo- 

ralties  pafs   by  Induct  ion,  Arg  PI.  C.  528.  in  the  Cafe  of  Hare  v.  Bicldey Watf.  Comp.  Inc.  Svo, 

cap.  i5.citesS.C.  &  38  E.  3.  4.  &  22  H.6.27. 

10.  By  Inftitution  hahetCitram  Ammarum^  the  Words  of  the  Inftitu-  S-  P.  Goldsb. 
tion  being  Inllituote  habere  Curam  Animarum,  Curam  tuam,  &ineam;  ^''J- "r']f 
So  that  Curatus  implies  a   Parfon  Inltituted.     Per  Doderidge  J.  which  (,jj,^^°      "' 
Whitlock  J.    &  Crew  Ch.  J.  agreed   3  Bulf.  310.  Mich,  i  Car.  B.  R.  Prince. 

in  the  Cafe  of  \V"rothmeal  v.  Gill. 

1 1.  It  v\as  held.  That  Letters  of  Infiitiition  feahd  mth  mother  Seal  than  ^"  p^^''"^- 
that  of  the  Biiliop  of  the  Diocefe,  and  viade  out  of  the  Diocefe  were  good  ^^^.  ^''■g  ^ 
enough  ;  For  the  Seal  is  not  material,  it  being  an  Aft  made  ol  the  Inltitu-  j,,  (^^^^  ^f 
tion,  and  the  ^\'^iting  and  Sealing  is  but  a  Tellimonial  thereof,   which  j};fati)  ij. 
may  be  under  any  Seal  or  in  any  Place;  But  they  would  ad  vile.  Cro.  C.  iDrpti  fays, 
242.  Hill.  9  Car.'B.  R.  in  the  Cafe  of  Cort  v.  the  BiHiop  of  St.  Davids.       ^^fcouft''^ 

that  Letters  of  Inftitution  muft  be  under  the  Epifcopal  Seal, 

12.  A  Prefentation  may  he-without  I^/J-ttution  and  Indatiion,  the  Billiop 
being  Party.  Relbhed.  Cumb.  302.  M'ich.  6VV^  &  M.  B.  R.  in  the  Caie 
of  the  Queen  v.  the  Bilhop  of  London  and  Dr.  Birch. 


(D  b.  3)     AdmifTion,  Inftitution,  or  Indu6lion.     Tnnhk 
ho'w  5    And  Ptwijhment  of  Refufwg  them. 

I.      A  DmilTion  and  Inftitution   fhail  be  try'd  hythe  Ordinary,    but  In- 
±\^  diiBion  fliall  be  made  by   the  Archdeacon,    and  fhail   be  tried 
iPfr  Pais.  Br.  Qiiare  Impedit.  pi.  155.  cites 32.  H.  6.  28. 

4  X  z.  In- 


35B 


Prcfcntation. 


2.  InduSlion  i.s  triable  bj  the  Cotmtrj\    and   not   by  the  Biiliop.    PI.  C, 
529.  b.  in  the  Cafe  of  Hare  v.  Bickley — cites  21  E.  4.7.  &  33. 
A.  fucdii  3.  Matters  of  Induction,  and  the  Validity  thercot,  are  triable  at  Com' 


^H.iiT  /w/'f-  j^j^,j  i^.ju    and  not  in  the  Spiritual  Court.  Bull".  179.  Trin.  9  lac.  Holt's 

mA  I'cndiiig   ^^''^• 
it  B.  was 

Iiiltitiitcd  and  Induced,  and  A.  fued  B.  in  the  Spiritual  ("ouvt  to  Remoie  him,  and  a  Prohibition  waj 
prayed,  becaufc  he  (rannot  llic  for  tlie  fame  Caufe  Duplici  Foro  ;  and  zdly,  Becaufe  it  is  a  Suit  after  In- 
duction, and  upon  this  lall  Point  the  Court  granted  a  Prohibition.  Lat.  205.  Trin.  5  Car.  (Jlivcr  v, 
HulTey. 

It  was  ad-  4.  IftheBifliop  refufes  to  give  Inftitution,  the  Clerk  may  have  a 
judged,  that  (,)!(are  Iiiiptdtt,  or  Dtipks  G^acrcla  to  the  Archbilhop  tor  it,  but  AiSlion 
di?  cii^'^k"  ^"^i-  Cafe  will  not   lie  againlt   him.  Roll.  R.  64.  in  Cafe  of  Powle  v. 

againlian       Godlrey. 

Archdeacon 

who  refufes  to  induft,  but  not  againft  the  Ordinary  wlio  refufes  to   inftitute;  becaufe  there  a  Quarc 

Imped  it  lies,  or  Duplex  Querela  before  the  Metropolitan.     Mo.  S^^J.  pi.  iizij.   Mich.  12  Jac.  Pole  v. 

Godfrey 

If  the  Archdeacon  refufes  to  induft  a  Clerk  &c.  he  fhall  have  an  Aftion  upon  the  Cafe.  Cited  li 
Rep.  12S.  as  Fit7,h.  47  H.  6.  S.  and  affirmed  for  good  Law  by  all  the  Court,  and  that  with  this  a- 
"rees  26  H.  8.  5.  a.  True  it  i>,  that  it  is  held  in  58  H.  6.  14  that  in  luch  Cafe  he  fhall  have  Remedy 
againft  the  Archdeacon  to  punifh  him,  butfavingthe  Opinion  there,  they  cannot  award  him  Damages 
in  Juch  Cafe,  but  he  fliall  recover  tliem  at  Common  Law.     12  Rep.  128. 


(E.  b)  ReJjg?iatto?i.     By  whit  fp'onh  it  may  be. 
This  in  the  I.  npi^e  tJBorii  Refignare  10  not  tijc  pcopcc  Ccmi  of  t!jc  laiy  for 

Margin  IS  J|_     EcfiSmitiOll,  but  Renuntiare,  Cedere,  auD  Dimittere  HtC  tlje 

Ihc  Cafe  of  ufiiai  %mm  of  Rcfin;natia»»   D»  13  €1 294.  b* 

Walrond  v. 

Pollard And  Ibid.  294.   a.  Marg.  pi.  6.   cites  Hill.   20    Jac.   B.  R.  ^paitf t)ilO  V).  (Kaper,  where 

the  Civilians  held,  that  Refignare  is  not  a  good  Word  of  Rellgnation,  but  the  Judges  Contra. 

2.  Jfil  Prebendary  gives  Grants,  Renders  and  Confirms  to  the  Or- 
dinary his  Prebend,  and  the  PolTelfions  appcrtatumg  tljCTCtO,  tO  IpiltlE 
attll  to  Hold  to  him  and  his  Succellbrs  in  Fee,  aad  fUbjCCtSS  anU  fub- 
mits  to   him  Omnia  f  ura  bP  tCafOtt  tljCtCOf  Qualitercunque  acquilita, 

tbofc  wmM  arc  fiifiicicnt  anti  amountinn;  to  a  Ecfujuation,  tljo' 
tljc  proper  JBorbgi  arc  nottljercuu   p»  13  CI.  294-  b. 

3.  A  Relignation  was  made,  and  afterwards  in  the  fame  Inftrument  a 
'^'■i'^^-^o'^'^f- Condition  was  infcrtcd,  declaring  it  void,  if  A.  or  B.  were  not  admitted" 
cftesS  C.'^'^y  Allentof  the  Biihop  within  6  Months.     The   BiHiop  within  the  6 

Months  refufed  to  accept  the  Prefentation.     It  was  inlilted,  that  it  is  a- 
gainft  the  Nature  of  a  Relignation  to  be  Conditional,  and  that  it  muft 
be  Abfolute,  Sponte,  Pure,  and  Simpliciter,  and  that  this  is  an  Aft  judi- 
cial to  which  a  Condition  cannot  be  annexed  i  And  Judgment  wasaf" 
terwards  given  accordingly.  Ow.  12.  34  Eliz,.  C.  B.  Gay  ton's  Cafe. 

4.  One  that  had  a  Do/iative  made  a  Relignation  thereof  by  the 
Words  (deEcclc^a.)  Per  tot.  Cur.  this  Relignation  extends  to  all  the 
Polleffions  ;  For  as  the  Donation  to  the  Church  extended  to  invelt  him 
with  all  the  Poflellions,  fo  the  Relignation  extends  to  the  fame.  Cro.  J. 
63,  64.  Pafch.  2  Jac.  B.  R.  Fairchildv.  Gayre. 


(F.  b) 


Pixfentation.  359 


"A 


(F.  b)  To  .v.hom  it  may  be.  ;|s°'£- 

pi.  1. 

ixCflSnatiOlI  OUgljttO  be  to  the  immediate  Ordinary,  mitl  HOt  For  it  is  a 

to  tije  uietiiatc  )i)rnuuirp.  D»  13  €i.  294.  in  i<ui-  in  the 

(.^:inon  L.:iw-, 
that  .-Ifiid   cum  f.cri   debet   Renu>ui,xtio,  ttpiid  [juem  fertinere  dignofcitur  Confrni aih.     Godolph.  Rc]\  2'?4. 

cap.  2i.  S.  5. S.  P.   Dod.  ot  Adv.  Si.  Lett.  1 5.  • A  Kcfij^nation  (elpcciLilly  of  a   Benclici 

with  Cure)  cannot  be  made  to  void  the  (lime  by  the  folc  Adt  of  the  Incumbent,  but  the  Ordinary  mill: 
for  that  End  alio  accept  it,  and  declare  the  Church  void  ;  and  till  then  the  Patron's  >;ew  Prercntation 
will  be  null  ;  and  the  Rcafon  of  the  Law  in  this  Cafe  is  partly  becaule  the  Ordinary  is  to  give  Notice 
of  a  Reliipiation  to  the  Patron,  and  that  he  may  prcfcnt  again,  and  if  he  do  not  within  6  Montlis  afccr 
Notice,  that  the  Oi-din.iry  may  provide  for  the  Chuich  ;  but  more  efpecially,  I  fuppole,  becaule  the 
Bifhop  having  Cure  of  all  Souls  v.ithin  his  Diocels,  is  to  fee  that  the  Paltors  to  whom  he  has  commi:- 
ted,  aiid  who  have  undertaken  die  Cure,  and  in  whom  thereby  the  People  iiavc  an  InterelT,  do  not 
without  a  rcaforable  Caufe  leave  their  Charge  ;.  that  it  be  not  for  Money  &c  or  to  live  a  Lay^Conver- 
lation,  which  he  is  not  to  futicr.     VV^atf  Conip.  Inc.  Svo.  6b'.  cap.  5, 

2.  ^  Prebendary  CiimiOt  rcrttTU  to  the  Kins;,  bCCilUfC  tI)OttlXl)  IjC  bC  Watf.Comp. 

ti)c  fuprcme  ©rnuuu)),  pet  ijc  is  not  tbc  luinictiuuc  £X-t5maii>,nno  Ijc  s^o. «  c..p. 
10  not  tioimn  to  mt'  Jl^otice  totljc  x^xm  ajj  tijc  ©rBtiiari)  ougijt,  .t„d  u;,,,  ^■ 
itor  can  uuikc  eoitation  of  ijimfcit,  but  ougijt  to  jjiticntto  tije  ©rm=  ;>,4jt?ou 
nan'*   D*i3€U294.b»  i^f^A'- . 

*  S.  p.  Dod.  of  Adv.  81.  Left.  15 Refignation  U  the  Kinn   by  a  Dean  of  Well.<:,  was  adjudged 

good  and  elicctual,  in  as  much  as  he  was  Head  of  the  Church  of  England,  and  as  good  as  if  it  had 
been  made  to  the  Bifliop,  and  the  Deanry  was  void  thereby.  Adjudged,  Mifi.  D.  295.  b.  Mich.  12  Sc 
13  Elii.  Pollard  v.  Walrond. 


a  Superior  i  per  Coke;  Quod   Haugh- WatfComp- 
5iihop  cannot  relitrn   to  the  Dean  and    "J;-  /";' "l'^' 


3.  Relignation  cannot  be  but  to  a 

ton  Conceliit.     And  per  Coke,  a  Biihop  ^. ^^  —'.n- -  -  cap  4  cues 

Chapter.  Roll.  R.  137.  Roll.  R.  137.   Hill.  i2jac.  B.  R.  Anon.  s.  C. 

4.  Where  t'wo  Perfons  have  the  Donation  of  a  Donative  as  Founders,  a  WatCComp. 
Refignation  to  one  of  them  is  good.  Refolved.  Cro.  J.  63.  Pafch.  3  Jac.  B.  ^.gp  /'^[j^s^' 
R.  Fairchild  v.   Gayer.  S.  C. ■ 

And  being 
made  to  one  of  the  Patrons  and  a  Stranger,  yet  it  is   good  to  both  Patrons,  and  void  to  the  Stranger, 
and  efpecially  it  being  made  (Et  quibufcunque  aliis  Perfonis,  who  have  Intercrt  &c.)  Yelv.  60.  S.  C. — . 
Brownl.  201.  S.  C. 


(F.  b.  2)  Hoin  Relignation  may    be.     And  cc/'^J/v  ;   Afd 

the  E/fl'H  therof. 

1.  TF  fxo  Parfons  rellgn  Caiifa  Pcrmtitationis^  the  Church  is  not  thereby 
-*-  void;  lor  this  is  not  Abfolute,  but   Conditional.  3  KuK  218  Arg. 
cites  4  E.  3. 

2.  in  Scire  facias  upon  an  Annuity  recovered  agaitijl  a  Parfon,  the 
Defendant  faid^  that  fiich  a  Day  &cc.  at  B.  in  another  County,  he  rcjigned 
into  the  Hands  of  the  BiJhopofL.  Ordinary  there,  li-ho  accepted  it,  andfo 
it  remains  in  the  Hands  of  the  Bipcpi  Judgment  of  the  Writ,  and  no 
Plea;  for  it  is  only  Argument,  and  ib  it  feems  that  he  pal/  fay,  that 
Not  Par  fen,  or  traverfe  that  he  ivas  Not  Parfon  the  Day  of  the  Writ  pur  cha- 
fed no\-  after.     Br.  Traverfe  per  &c.  pi.  223.  cites  7  E.  4.   15, 16. 

3-  Re- 


n^6o 


Prefentation. 


SecEibte,  3.  Relignuiion  or  Deprivation //-v?//  iut  abate  the  Writ ^  and  yet  luch 

(Q.  a.  10;     ^^^£jy  |j^.  .J  p^rion.  Prebend  &c.  jkall  avoid  Lcafcs  made  by  him  \vho   re- 

ligns  oris  deprived.  Br.  Depoiition,  pi.  8.  cites  15  All  8. 
1 1  Mod  1-6       4.  If  an  Incumbent  religns,  yet  till   the  Ordinary  agrees  thereto  he 
Hill  S  Ann.   remains  Incumbent  Hill.  Arg.  Lane  4.  Mich.  3  Jac.    in  Cale   of  Bret  v. 
B.  R.  Riley   johnlbn. Cites  it  as  lately  lb  adjudired  m  C.  B. 

V.    Adams.—  •'  j  j      c 

And  if  a  Pre- 

Icntation  be  made  by  the  P.itron  before  the  Agreement,  and  the  BilTiop  admits,  inftitutes  and  inducts  upon 

Juch  Pi'dentation  it  is  void;  Fovthe  Chui-ch  vas  full.     Cro.  ].  197.  Mich.  5  fac.   BR.   Fainc  v 

It  only  puts  the  Freehold  in  .:/i«y,i«rt  till  the  Ordinary  accepts.  Arg.  5  Mod.    19-.  in  the  Cafe 

of  SrilCinpfcn  U.  ?J.far(),  cites  Cro.  J.  19S.  D.  294.  Br.   tit.  Bar.  Si.  Yelv.  61.  Sid.  587. -Rc- 

/l,<^nation  to  a  Pncfcr  makes  not  the  Church  void  till  it  be  accepted  by  the  Bifliop,  anH  ack)iou<led''ed  by 
him;  I'o  that  a  Prefentation  in  the  mean  time  is  void,  and  fpecial  Verdict  finding  :m  Intlrument  under 
Seal  of  the  BilTiop,  on  which  was  indorfid,  that  the  Reiignation  was  acknowledged  and  accepted  by  the 
L'jjhif  is  nor  an  ablblute  Finding  that  it  was  a  Reiignation  in  fad'o.  Noy.  147.  Smith  v.  Fox. 

5.  After  a  Clerk  has  taken  hjiitntion^  he  may  avoid  the  Church  again 
by  Refign.'.tioH  before  hiduiiion.     Watf  Coinp.  Inc.  8vo.  50.  cap.  4. 


(G.  b)  Voidance.     Bifpe/zfcitioH.     In  vjhat  Cafes  the  DIC 
penfation  oj  the  i^ope  pall  pre^vent  a  Voidance. 

'V\\t  King     i.tJF  tijC    ^^OpC  ijiTS  gr-anted  to  an  Incumbent,  being  a  Bifliop  ele£t 

brought  -•-  before  Confecration,  that  he  ihaii  retain  tljc  'Benefice  Ulltl)  tfjc 
*>':;]7'-  loifljopncb,  pet  tijis  fljnll  not  present  tljc  auomancc,  jfot  it  is  Bom 
R  Bifliop  of  tip  tijc  Common  Laui,  nnn  tijc  pope  coiUD  not  cijnngetijcLatu^ 

Sarum,  and    DUbltntUt*    II  I),  4.  38.  59-  76. 

H.  C.  Bifliop 

of  St.  D.  of  the  Prebend  ofC.  in  the  Church  of  Sarum,  and  counted  that  AI  Bijhop  of  Sarum,  pre/ented 
this  fame  fJ.  C.  now  Bijlop  of  St.  D.  to  the  (aid  Prebend,  nnd  after  the  Bijhop  was  tratijlnted  to  Bath  and 
Weill,  by  which  the  Temporaltics  came  to  the  Hands  of  the  King,  and  afceithe  faid  H.  C.  Prebendary 
IV as  made  and  created  Bifhop  of  St  D.  by  which  the  Prebend  voided  &c.  (For  it  was  agreed  that 
where  an  Incumbent  is  created  a  Bifliop,  that  his  ancient  Benefices  are  void  in  Fact  immediately'  For 
Sovereign  canrot  ufe  the  Office  of  a  Subject  ;  (^uod  Nota.)  and  the  Bipop  of  Sarum  made  Bar  as  Pa- 
trons above,  byavhuh  he  made  CoHati/n,  ahftjiie  hoc  that  the  Prebend  voided  the  Temporalttes  heiiit  in  the 
Hands  of  the  A;;.;?,  and  the  Incuvihei.t  S.  Bijhop  of  St.  D.  faid,  that  the  Bijhop  of  Sarum  pre/ented  him,  by 
ivhich  he  ccj:ti::ued  Pojfeffiou,  abfjtie  hoc,  that  the  Church  lidded  the  Temporalties,  being  in  the  Hands'  of 
the  Nine,,  &  non  allocatur  without  making  Title,  by  which  he//!/rf,  that  before  he  was  created  a  Bijhop 
the  Pope  .rranted  to  him  to  retain  his  ancient  Benefices,  by  which  he  retained  it  See.  And  there  it  is  aereed 
"by  Thirn,  Hill,  and  Culpeper,  that  the  Grant  of  the  Pope  cannot  change  the  Law  of  England  and 
after  the  Kins:  l^j*  ^"  Count  in  ancther  T'crm,  and  counted  upon  tie  Statute  of  Provijio/is  ;  and  per  Hank  and 
Thirn,  this  Grant  to  retain  is  no  Collation,  Refervation  nor  Provifion,  and  therefore  out  of  the  Cafe  of 
the  Statute  ;  but  Hill  and  Culpeper  contra;  And  per  Hill,  the  King  is  Patron  paramount  the  Bifhon 
tho'  the  Bifhop  be  immediate  Patron  ;  and  it  was  agreed,  that  by  the  Creation  into  a  Bifhop  the  Church 
is  loid  in  fafi  immediately,  and  the  Patron  may  prelent.  Br.  Quare  Impedit,  pi.  51.  cites  11  H  4.  --, 
59 ^Br,  Preroative,  pi.  14  cites  S.  C.  and  lays,  Ouxre  de  toto. Vaughan  Ch.  J.  ray.s,   Their 


^]caning  is  to  be  learned,  who  fay,  that  an  Incumbent's  Benefice  is  void  by  the  Common  Law  and 
not  by  the  Canon  Law  upon  his  bcinf;  made  a  Bifhop.  The  Words  of  Thirning,  who  was  Ch  't.  in 
this  Cafe  of  1 1  H.  4.  are,  "  That  he  liippofcd,  that  when  a  Man  benefic'd  is  made  a  Bifhop,  it  "is  by 
"  the  Law  of  Holy  Church  that  his  Benefice  becomes  void;  and  that  the  fame  Law  which  "-ive  the 
"  Voidance,  may  caule  that  it  fliall  not  be  void,  and  that  that  concerns  the  Power  of  the  Pope*!'"  And 
Vaughan  fays,  The  Common  Law  does  not  prohibit  Pluralities,  nor  make  a  Voidance  of  his  Benefice 
when  tlie  Incumbent  is  Bifliop,  but  it  is  by  the  ancient  Ecclcfiaftical  Law  of  Ensrlund  ^'lufh  22  in 
Cafe  of  Edes  V.  Walter,  Bifhop  of  Oxford.  o  •    *■  " 

2.  In  a  Quare  Impedit,  the  Defendant  pleaded  in  Bar  the  Statute  21  H. 
8.  that  if  the  Incumbent  hath  a  Benefice  with  Cure  of  the  yearly  Va- 
lue of  8  1.  and  is  indufted  into  another  &c.  the  firll  fhail  be  void,  and 
aileg'd  that  the  lormer  Incumbent  had  Szc.  The  Plainti/F replied  the  Sta- 
tute 35  H.  8.  that  a  Chaplain  to  an  Earl  might  have  a  Difpenfation  to 
hold  two  Livings,  and  that  the  former  Incumbent  was  fuch.  And  the 
Queflion  was,  Wliether  the  Pope  before  that  Statute  could  grant  fuch  Dif- 
pcnfaticns  at  Ccmvion  Law  i  and  it  was  argued  that  he  might,  for  at  firft 

c\'cry 


Prtfentation.  q6r 


rjiiy  Bf/bop  had  Power  to  grant  Difpenfiitions  for  Pluralities,  till  they  by 
their  Indilcretion  loft  their  Power,  and  it  was  abrogated  by  a  General 
Council  held  Anno  1273.  to  which  Council  this  Nacion  fcnt  two  Bilh- 
ops ;  and  this  Conltitucion  has  been  received  lince  till  H.  8.'s  Time; 
But  the  Court  did  not  ipeak  to  it ;  but  the  PlainciiF  was  fo  difcoura^ed 
that  he  .would  not  prcKced.  And  lie  pendebac.  Mo.  119.  pi.  264. 
Mich.  24  &  25  Eliz.  Dolman  v.  Bifhop  of  Sarum. 


*(G.  b.  2)     [Voldance.    Difpenfatlon.]   Plurality.       IJ^:^;], 

this  in  Roll. 

I.  TiF  an  Incumbent  \ym  a  Dtfpcnnition  for  a.  idimmv  froni  tljc  ^^ovd  ch  j. 

1    PO-JC,  anD  ij'C  takes  a  iecond  Benerice  |JC  niilP  UCCp  llOilj,  illlD  UCl^  '^^^o'l'"" 
tljCr  (ijilit  be  jJOlO,  *  bCCailfC  it  is  not  a  Voidance  by  Common  Law,  but  ^7^>^^~:^ 
bv  a  Canon  and  Law  oi  the  Church ;  nuH  tljCtCiiCirC  tljC  CljUrClj  llUiy  nv,>Co 

mfpEUiCltllt!)  Itv      1 1  fp.  4.  60,  b.  "  takes   iNo- 

ticcthat  it 
pafTes  in  the  New  Books  for  Curi'ent,  that  in  Cafe  of  Phu-Hlities  the  Voidance  is  by  the  Canon  Liw,and 
rhcrefore  may  bedilpenfed  with  by  the  ftmc  Law  ;  but  tiiat  in  C.de  of  a  Bifliop  made,  the  Voidance  is 
by  the  Common  Law  ;  but  he  lays,  that  if  the  Canon  Law  be  made  Part  of  the  Law  of  this  Land,  then  it 
i-,a\  much  a  Law  of  tiie  Land,  aiid  as  well  and  by  the  iame  Authority  as  any  other  Part  of  the  Law  of 
the  Land  ;  and  if  it  be  not  made  the  Law  of  the  Land,  then  hath  it  no  more  Effect  than  a  Law  of  I't.  - 
pia  ;  therefore  the  Canon  Law  here  is  the  Law  of  the  Land,  Vaugh.  21.  in  Cafe  of  £des  v.  Walter 
Bllhop  of  Oxford 

2.  Jf  a  Parfon  fjnd  il  DifpCnCltlOn  to  retain  tf}C  'BcnCfiCC,  if  he  en- 
ters into  Religion,  tIjC  CijltCCU  fljall  UOt  ^OlO  if  tljC  CttUV  UltO  £\C-- 

ligton  t!C  atteciuaiDs.  Dubitatur*  n  D.4. 60,  b.  77* b. 

3.  !:i  Monk  or  fuel)  IaCIISIOUiS  CtinnOt  have  Benefice  lip  KCCnCC,  ^r  ^'^''"''■'- 
unlefs  he  has  a  Bull  ot'Exemption.     ii  iX  4*  78*  QUUC*    "  |.\'.''J;  P'-^^-^- 

4.  57.  where  it  was  faid  by  fome  that  it  had  been  us'd  to  make  Di'penlations,  and   to  grant  to  one  who 
entered  into  Religion  to  retain  his  firft  Benefices. 

4.  If  an  Incumbent  IjajJ  DifpCnfiltt'On  to  retain  the  Benefice,    tho'  he 

be  deprived ;  tljisj  fljaUnot  fanc  t!jc  Cloo(nancc,if  Ijc  bcQcpauctJ  after  i 
(for  it  feenis  it  10  repugnant.)  Contra  1 1  rp»  4, 6o»  D. 

5.  If  a  Ballard  llC  a  J^atfOn,  If  tlje  Pope  makes  him  able  before  Pri-  So  if  fuch  a 

vation,  ije fljail  tetam tljc  X^^cncftcc.  n  p.^*is.  (Sranten*  G:trccms''':''°""V 
Ije  fljall  not  be  neprnoen  m  tijt0  Cafe*  "P^S!' 

from  the 
King  or  .\rchbilliop  before  he  be  deprived,  he  fhall  retain  the  Benefice.     VVatf  Comp  Inc.  Svo.   25-. 
cap  14.  cites  1 1  H.  4    58.  "6.  77.  &.c. 


(H.  b)    In  what  Cafes  the  Difpenfatlon  of  the  King  fhall 

prevent  a  Voidance. 

u  1)7  tlje  il\innf  ailiee  Licence  to  an  Incumbent  tobeincumhent  and  *  ^ro.  542 
i  Biihc^P,  If  ije  be  maue  X^ifljop  after,  tOc  OSencficc  fljall  not  i'p^  re 

bOlU.     II  0.  4.  60.  i),  39  (£U  ^*  E*  betlUeen  *Armigcr  and  Hollimi.  r,,,^^^ 


3zi  Curiam  tcfolticu*  tj,o.  e  542. 

Hill.  59 

Eliz.  S.  C.  ad|ournatur. Cro.  E.  6oi.  S.  C.  and  P.  rcfolved. 4  Rep.  7  5.  a.  S.  C.  by  Name  of 

Holland's  Cafe . 

2.  Henrv  de  Blois  ti}C  15rCtI)Cr  Of  tMUtt  SteplKll,  Uia5  Bitliop  Of  "  "-.4  5^ 

t©mcljcfler  and  Abbot  Of  »©lafl"cnburp.   Liber  ^uccefl'iomjj  19.         ^£x\uo 

this  Cafe,  and  f;iid  tliat  the  fame  Pcrfon  had  the  Pofleffion.'i  and  the  Dignitic!  of  them  at  the  fame  Time. 

■ In  the  Time  of  H.  6  Heiuy  EeMi''irt  tlie  King'sGrcai  Uncle,  being  made  Cardinal,  h.id  the  Po:c's 

4  Y  Diipen- 


q62  Prefentation. 


llifpeufation  to  retain  the  Biflioprick  of  Wincheftor  ;  and  tho"  it  was  held  then,  that  this  Difpeniation 

Cime  too  lute,  yet  afterwards  in  the  Time  of  H.  S.  CarJhial  IFcolfey  havin-,  before  lie  was  created  Car- 
dinal, obtained  the  Pope's  Bull  to  retain  the  Jnlhilhoprick  nj  I'ork  as  Perpetual  Adminiftrator,  anil  the  Jb- 
he'y  of  Si.  J/har's  in  Ferpeliial  Qmmemitm,  he  held  both  during  his  Lite  by  Virtue  ot  this  Difpenfation. 
Dav.  Rep.  80.  a.  cites  27  H.  S.  15.  b. 

f 

(I.  b)  In  what  Cafes  the  Difpenration  of  the  Pope  fub- 
Icqaent  Ihall  toll  the  Benciit  ot  a  Voidance.  [I'Vidance 
by  the  Camm  or  by  Statute,  when  and  in  what  Cafes. 
And  Pleadings.] 

To  i-4.  SC  I*  lii"  «n  Incumbent  be  created  Biil.op,  tfjC  DifpCUGUiOn  Of  tljC  POpe 
Se- pl%Vin      ^  after  to  retain  tljC  'BCHCfiCC  alfO  fi)a!I  not  UUft  tije  Patron  of  XX)Z 

the  Notes     pitrcntuicnt*    1 1  i3>  4*  38.  H.  59*  ti»  7'«.  t>.  clcarip  nurccD. 

t''ei'e-  2.  3,t  ruUncumbcnt  ot  a  Church,  with  Cure  un^icr  81.  per  Annum, 

,  takes  a  lec'ond  Benefice  with  Cure,  in  tUijlCl)  Ije  1^3  illfO  JnHltUtC'O  autl 

^  ,tute°;'f  2T  indufted,  'm  iDliitl)  tije  firff  n  \joig  nsauift  tlje  patron,  fo  ti);it  De 

H.  8.  a  Man    Uiap  iitdfCUl",  bUt  belore  Prelentation  the  Archbilhop  by  Force  ot  tljC 


^;f;«..;  a  Pc-  t|)c  €;tatutt  to  take  aiuap  tijc  iStefcutment  of  t|)c  l£3atron,  tijo'  it  tsj 
ri.de  vaiere  fl  j^oicatuc  1,'j)  jfotcc  of  tijc  €311011,  niiQ  uot  bp  Jr'orcc  of  tlje  ^ta^ 

i,theSpm-    fjjj.^,  gf-  21  H.  8.  jfOt  bv  the  Canon  tl)C  fitft  ToCUCftCC  U)a0  fO  W^, 

Zd  the'  tijat tf)c i3atron mnx'ot lja\3C  jsrcfentcti before anp  DepvilMtion ,  ann 
jMeaning  of  totitfurc  aftcv  fuclj  tjtiuic  as  tijC  patron  ijan  poiuec  to  prcfcnt,  tfjis 
the  Law  was  pouict  caiiiicit  bc  tai^ctt  atoip  bp  a  Licence,  'Wm>  14  Car>  15,  E. 
to  help  one  ^jfj^f^^  £^/^w/^  aiin  tljC  King,  m  jjBrit  Of  €txot  upon  a  IttDgnient 
chaphiln  ?o  in  a3ank  in  £iuarc  JntpeBit,  U)l)erc  it  luas  fo  ati)iir!n;cn  upon  a  iOt-- 
?<ohiemen,  niutrcr ;  auti  noiD  per  Ciinani  of  "iS.  E.  accominsip  refoi'oen,  but 
a^d  not  Huh  ^ai)  Kfocn  otiec  to  93tcijaclnias  Cenu.  lout  atrermarus  in  tOe 
a.aref;.».7-  faiHc  CtimtP  Cccm  aHjuQijeli  accocouislp  pec  Curiam.  lintratur* 
tiT^thunt     13  C^ar,  Eot.  1259* 

/cfj.     Per  Popham.   Goldsb.  1(54.  Hill.  43  Eli?.,  in  the  Cafe  of  Eobins  v.  Piince. 

Sees. Car-    3,  jfaii  S'licuoibeRt  Of  a  Cljurcl)  UJitl)  Cure,  above  s  i.  Value, 

gucd  Mo._  afterlUartl.S  is  l^rClCUteD  ann  Imtituted  into  a  2d  Benefice  with  Cure, 
bv^Kamc^of  ^^^  beiore  Induction  UltO  It,  ijC  is  made  a  Chaplain  within  21  H.  8.  and 
Robins  V       allier  obtains  a  Difpenlation  according  to  the  21  H.    8.  tO  t)0lD  bOtlj  ; 

r^^^A^^  tW  Difpenfation  is  not  goon,  becaufc  tw  tlje  2ti  C{)utctj  uias  not 
*  1 01^60.  ^,jjj,  'jyrttjm  21  D.  8,  before  *  Inouction,  vet  it  uias  \30iti  bp  rije  3fnai- 
h^;Q!d^  tution  bP  tlje  Canon ;  fo  tbat  tbe  patron  hugijt  ija^e  prefentcQ,  tije 
Prince.  And  iuiji£i)  canuot  be  taken  aiuap  bp  a  Eetauicr  anQ  duaiification  after. 
Ibid.  44S-    Co.  4  Digby  79.  Kefoineo. 

TheJulHces 

doubted  if  the  Qualification  and  Difpenfation  which  came  after  the  Inftiturion,  and  before  the  Induction 
to  the  Iccond  Benefice,  be  fufScient  by  the  Provifo  of  the  Statute  of  21  H.  8.  to  retain  both  Benefices; 
and  Popham  andGawdy  thought  that  it  was  not  fufficient,  becaufc  the  Induction  fliall  have  Relstion  to 
theInftitution,and  the  Benefice  is  taken  by  the  Inlfitution;  and  the  Intent  of  the  Statute  was  not,  that  the 
Qualification  fhould  ferve  them  who  might  obtain  two  Benefices,  but  that  hrlf  they  fhould  be  Ch.'.plains 
retained,  and  Qualified  or  Graduates,  and  then  to  ac>iuirc  the  Benefices;  and  if  it  fhall  be  allowed  that 
the  firft  Benefice  fhall  not  be  void  till  Induftion,  one  mi^ht  by  Covin  obtain  20  Benefices,  and  not  be 
Inducted  to  any,  and  would  never  take  Difpenfition  till  he  had  firft  the  Benefice;  but  Fennar  and 
Clench  e  contra,  that  the  Qualification  and  Difpenfation  is  Time  enough  before  Induftion  :  And  after 
at  a  Convocation  of  all  the  luftices  of  England,  Hill.  41  Eliz.  they  agreed  with  Popham  aid  Gawdv,  by 

which  Clench  and  Fenner  ftlutatis  Opinionibus  afTentcd  to  the  Judgment  for  the  Plaintiff. Gokisb. 

162.  pi.  97.  ^- C Jenk.  2)5.  pi.  42.  S  C. 

4.  King  H.  4.  Prefented  one  that  was  incapable  of  his  Prefentation,  and 
the  Prefcntee  a?tfj-  thereby  Admitted,  Initituced  and  Iriducied^  and  after- 
ward 


Prefentation. 


36'^ 


e 


ward  the  Pope  enabled  the  Prefentee  by  his  Bull,  yet  the  King  had  a 
Scire  tacias,  and  thereby  recovered  his  Prefenration  again,  becaufe  the 
Incumbent  was  not  capable  when  he  was  prelented.  Dod.  ol'  Adv.  74. 
Lect.  14. 

5.  21  H.  S.  13.  S.  9.  Enacls  chat  if  any  Perfon  having  a  Benefice  -xith  -'  ^'-  S.  1;. 
Cure  of  So!/Js,  leutg  of  the  yearly  Value  of  S  I.  or  al'o-ve,  accept  another  -jjith  'i  "  ^^'•''^'•''' 
Cure  of  Sou/s^^  and  ie  hijlttuted  and  Indiithd  in  PoffeJJton  of  the  feme,  imme-  ^,''ffrtlor<f 
diately  uponfiich  Poffepon  thercvf  the Jirfl  Eencjicejhali  be  adjudged  *  -void,      need  iomo 

be  ple.'deii, 

Of  any  Pan  thereof,    do.  E.  6ot,  Ai-mif:;er  v.  Holland. -Mo.  'i^i.  S.C. -..nd  P. SI.  Value  of'a 

Cliuiviiji.'/j// oe  acccmned  as  'tis  valued  in  the  V'aluation  of  the  Beneh;es,  and  not  ac-'ordin"  to  the  true 
Value,  as  it  is  upon  Improvement,  tlio"  (J.>inioiis  have  dirfered  before  ;  for  the  Stature  ince" ids  as  it  was 
valued  in  the  ancient  Bodk  of  Kirll  Fiuus  and  Tench:-,  which  was  taxed  29  E  r.  And  after  whea 
another  Valuation  was  made  z6  H.  S  then  accordins'  to  that  Valuation.  Cro.  (J.  4515.  cites  it  as  adiudg'd 
8  Car.  inCB.  in  Cafe  of  Drake  v   Hill.       .  ^  j     & 

Averring  in  gcverAl,  that  '[is  of  S  1.  V.ilue,  is  fufricient,  without  faying  it  is  r f  fuch  Value  in  tl-'e  Queen's 
Books,  and  it  fliall  be  t  iken  to  be  according  to  the  true  Value  thereof  Cro.  E.  855.  Bond  v.  Tricket.— 
It  fhall  be  accounted  according  to  the  very  Value  of  the  Church.     ISoy  ;8.    Bene  v  Tricket.— iiame 

Cafes  cited  Watf  Conip.  Inc.  Hvo.  6.  cap.  2.- In  all  Precedents  of  P!eadinj;s  founded  upon  '.he  Snuutc 

of2i  H  S.  it  iscxpi-elsly  alleg'd  that  tlie  ill  Benc.*ice  at  the  Time  of  .accepting  the  2d,  v.  as  of  the  annual 
Value  of  S  1.  and  fo  are  the  Precedents  in  Co.  Ent.  969.  c.  512.3.  Winch  (S70  and  S57.  Ard  ic 
feems  alfo  that  where  a  l^erdici  found  tl.ntttle  zd  Benefice  is  now  of  the  clear  yearly  Faliie  of  50  /_'it  isur'e  ly 
Immaterial  ;  For  in  a  Trial  at  Bar  of  B,  R.  Hill.  2  VV.  &  iM.  in  Ejectraer.c  by  ^Oiiffl  Lc'flee  of  5r)r, 
it^affarD  Dean  of  Windfor  v.  fe)r.  &>.linbrt'  De.m  of  Guernfcy,  for  the  Redtoiy  of  H.  in  the  C.^.u.ity 
of  (..(x.f'ord,  it  was  agreed  by  all  the  jullices  that  the  Value  flia'll  be  according  to  the  Valuation  in  the 
King's  Books ;  and  the  lame  Refolution  was  per  tot.  Cur.  in  the  ENckeiuicr,  6  Nov.  1692.  in  aCaute  be- 
tween gstamjJ  auD  Sll'llffc,  by  Biil.  2  Lutw.  I  505.  in  the  Cafe  of  i£.l).;rf  C  b.  ^rtnilj,  the  Reporter 
Jays  he  had  thi.>  bv  good  i'.formation  ;  and  adds,  That  if  the  Value  fiiall  be  talien  as  ic  was  fo  mary' 
Years  before  the  \"erdict,  to  wiiat  Purpofe  can  it  be  to  fnd  by  the  Verdict,  that  then  it  was  of  the  re.'.l 
annual  Value  of  50  ].  For  if  the  Value  thereof  fltall  be  taken,  k%  it  was  in  the  laft  Book  of  the  firft  Frui  s, 
this  was  26  H  S. 

In  Q;aare  Impedit  the  PlainntFfet  forth.  That  lie  was  fcifcd  in  Fee  of  the  Advowfon,  ar.d  prefented 
A.  who  took  another  Benehce,  and  fo  the  Church  became  void  Per  acceptationem  akerius  Bcncficii; 
and  the  Defendant  demurr'd,  becaufe  he  doth  not  flicw  the  Value  of  the  2d  ficnefice,  nor  that  there 
was  Cure  of  Souls  belonging  to  ic ;  And  re  Iblved  per  Curiam,  That  he  need  not,  the  Plaintiff  himfelf 
being  rightful  Patron  ;  but  otherwife  it  is  tl-.e  Plairtiii  did  go  to  intitle  himfeif  by  a  Lapfe,  there 
he  ought  to  fliew  tbcfe  Particulars,  that  it  might  appear  to  be  a  Ceiiion  within  the  Statute  that  tiie  Pa- 
tron ought  to  t  d<c  Notice  of ;  but  to  the  Patron  it  is  fufScient  that  tlic  Benefice  be  void  ;  and  alti-.o'  the 
fecond  Benefice  he  but  of  the  V.ilue  ot  20  s.  per  Ann.  yet  the  Patron  may  take  Notice  of  ir,  if  he  will  ; 
but  he  is  bound  to  take  Notice  of  it  according  to  ii'oUanD'.if  CafC  i  Co.  And  if  IlTue  be  takon  on  Va- 
cavit  per  Cefiionem,  yet  if  it  be  found  Quod  vacavlt  per  Mortem,  it  is  for  the  Piaintifr  it  he  be  Patron, 
accoroing  to  i  Inll.  2S2.  And  fo  the  Demurrer  w.is  over-ruled.  Fre>:ra.  Rep.  24.1.  242.  pi.  253.  Hill, 
16--.  Pridgeon's  Cafe. 

If  there  are  tzi-o  Parfcns  cfone  Church,  and  each  of  them  has  the  entire  Cure  of  the  Parifli,  ar.d  both 
the  Benefices  of  the  Value  of  S  1.  per  Ann.  on-i  dies,  and  the  other  is  prefented,  thf;  is  a  Plurality  w  ithin 
the  21  H.  I.  i;.  and  is  wichin  the  Litenc  of  the  Statute,  that  none  ihail  have  a  Living-;  or   Benefices 

wich  Cure.     Cro.  E.;  51.  Anon. Hob  158.  S.  P.    but  fays  that   if  the  Churches  had  been  iini:c4 

b-fore,  ar.d  then  a  Parfon  had  been  prefented  Sec.   to  the  United  C^hurches,  ic  had  b;en  otherwife. 

S.  I  o.   It  /hall  be  lazcfrtlfor  the  Patron  thereof  to  prefent  another^  as  f  the  Let  the  ra- 

Ifia/n.'bent  had  died  or  refigncd^  any  Licence^  inion,  or  other  Difpenfation  to  '"^  °\.f^f 

the  contrary  uofxithjiunding.  ^jr'.,,  n  ^.n; 

the  Patron, if 
he  pleafe.s  mav  prefent  upon  the  taking  of  the  2fl  Benefice.  Per  Vaughan  Ch.  J  in  delivering  the  Opi- 
nion of  the  Court.     Freem.  Rep.  51.  pi.  ^^4  inCafe  of  Shute  v.  Higileri. 

Since  the  Statute  of  21  H.  8.  there  have  been  divcrle  Gener.il  I'.irdons,  and  no  Pluralities  were  ever 
conceived  to  be  within  them.     Cro.  C.  3  58.  in  Cafe  of  the  King  v.  Pry  li. 

S.  II.  Every  Licence,  Union,  or  other  Difpenfation  obtained  contrary  /o  The  Prf e 
this  Ja  fhall  be  void.  to^M / ' '"'* 

.   S.  12.  If  any  Perfon  o'tain  (from  Rome  or  elCewhere)  any  Licence,    Union,  j-.^.^firgg 
toleration  or  Dtfpenfaticn,  to  receive  any  Benefice  zvtth  Cure,  he  fhall Jorjeit  Jhf,:cpricks. 

jo  /.  to  he  divided  betwixt  the  King  and  the  Ptvfectitor.  Br.  Parli.i- 

mcnt,  pi  I ;. 

cites  rr  H.  4  6.  -    Per  Horton,  to  which  Hankford  agreed [*  All  the  Edifions  of  Br.  have  the  Word 

(Not)  but  the  Ye3r-''''ook  is  in  the  Ailirm.itive,  if  with  the  Confent  of  the  Patrons.] — -And  in  the  Cafe 
•fEdesv  Wslter  B;fh.>pof  0.-:ford.  Vaugh.  23.  Vaughan  Ch.  J.  cites  S.  C.  accordingly,  ard  that  if 
it  were  without  the  Confent  of  the  P.itror.s,  it  was  not  dilbcnfing  to  hold,  but  .>vas  a  Granting  away  the 

Property  of  the  Patron.s,  which  a  Difpen!atioi>  could   not. Gulielmus  G/^f«  D  D.  Archidiaconus 

Lcwenlis 


.,64 


i^rcfcntation. 


Ltwcnlis  III!  £>ulic>;j  6c  Kcclc(i;E  l-'aulinx  C'anoniLUs  Kefidentiarivis  confccnitu-.  e(l  in  Epifcopura  Ec- 
c.fi.s  Exonieiifis  una  cum  Sansburicnfi  &  Bangoi-ienii  Novembris  iz.  i5yS.  Godwin  dc  Pi-xlblibus 
4;y.   vS.  ;3. 

A.  had  a  Dirpcnlition  from  t1ie  Archbiniop  of  Canterbury  to  hold  a  Trialty,  and  the  !^teen  confirm' i 
the  Dtj'pe7if,rlmi,  with  a  Scti  Oliftavte  aliquo  Statuto.  A  had  one  Benefice  before  of  the  Gift  of  the 
( 'ucen,  and  now  took  two  more  ;  but  adjudged  that  the  firlt  v. as  void  by  the  21  H.  S.  D.  ;5i.  b.  pi.  25. 
Cox's  Cafe If  a  Man  takes  a  Trialty  whicli  is  not  allowed  him,  he  cannot  by  that  take  two  Bene- 
fices, becaufe  his  Uifpcnfatiou  is  void.  Per  Hobart  Ch.  J.  Hob.  i  jii.  in  Cafe  of  Colt  and  Glover  v. 
Bifhop  of  Coventry. 

If  a  Parfon  has  a  Benefice  above  S  1.  per  Ann.  and  then  he  takes  a  zd  Be»efi<:e  with  a  Dif^enfation,  and 
then  takes  a  "^d,  hh  fir/t  BeMfce  is  ovh  wiA.    Adjudojed  per  Curiam..    Godb.  15^   pi.  201.  Mich.  5  Jac. 

C.  B.  Anon. Keibiv^d  that  the  firlt  is  void  by  the  Statute  of  ;i  H.  S.  cap.  13   4  Le.  257.  pi.  578. 

Ar.on.  Teems  to  be-  S.  C. S.  P.  And  thcf^uellion  was.  Whether  both, the  firft  Benefices  or  the  fird 

only  fliould  be  void  '!  And  Heron  (aid  it  was  adjUdged  that  both  of  them  fhould  be  void.  Noy  149.  The 
Kirii;  V.  the  Biflioi)  of  Chichefler. 

If  a  Man  h.isa  Benefice  witii  Cuie  worth  above  S  1.  he  cannot  wicliout  (.J^ialification  and  Difpenfa. 
tion  troiir.r  avotJ er  ivirh  Cure  to  he  united  to  it  ajter,  though  they  make  but  one  Benefice  ;  for  this  Cautel 
of  lli-.ion  i,-  provided  for  bv  exprels  Kame.  But  of  Unions  before  I  um  of  another  Mind,  and  Tolerations 
are  alio  excluded,  which  is  a  proper  Word  for  this  Cafe  ofCommendam  ttmpotary  ;  for  it  is  not  allow- 
ed but  tolerated,  >un  Pr<(.cepto  fed  Perniillio!'e,  as  tlie  Canon  I'peaks      Per  Hobart  CJi,  ).  Hob.  1 58,  in 

Cafe  of  Colt  and  Glover  V.  flifliop  of  Coventry  aid  Litchfield.  Watf  Comp.  Jnc.  Svo.  32S.    cap.  16. 

cites  >S.  C.  But  I)r.  W'.itlon  <ays  he  rather  thinks  that  the  Statute  is  not  prohibitorv  of  Perpetual 
Unions,  but  hath  Keipcct  to  Temporiry  Unions  only,  as  for  the  Life  of  one  Incumbent  which  the  Arch- 
bUl'.op  may  ni..ke,  and  fonietimcs  hath  made. 

*Thc  King's      s.  1 3,  Provided  that  every  Spiritual  Person  of  the  King^s  Council  7ii^j.< 
Chaplain       purchafe  Licence  or  Difpenjlition  to  keep  3   Beneuces  -with  Ci/re,  a»d  the  * 
niil-ylsnot     Chaplains  of  the  King^  ^luen.  King's  Children,  Brethren^  Si/hrs,  Uncles 
capable  of  a   or  Atints,  may  fo  keep  each  ofthani  2  Benefices  "ncith  Care. 
'Plurality 

within  tiii^  St.itute.  i  Salk.  \C>\.  Adjudged  Mich.  12  M.  5.  in  B.  R.  linu  afiirm'd  in  C.im.  Scacc  by  a 
Majority  of  one.     Brown  v.  Mugg. 

S.  20.  "The  Brethren  and  Sons  of  Temporal  Lords  (born  in  Wedlock)  may 
piirchafe  fiich  Licence  or  Dtfpenfation,  to  keep  as  many  Benefices  "with  Ciire^ 
as  the  Chaplains  of  a  Duke  or  Archbijbop. 

S.  2 1 .  The  Brethren  or  Sons  (born  in  Wedlock)  of  every  Knight  may  keep 
tivo  ix)!th  Cure. 
A  Retd'icr  S.  22.  Provided  that  the  Chaplain,  fo  keeping  Benefices  '■joith  Care,  pall 
witlnu  tnis  (^r^j^i^Ye  Need  fhall  be")  have  Letters  under  the  Sign  or  Seal  of  the  King,  or 
'\»e%>ie7^atid  '''^'''■'"  ^^'''■'"'  ^'^''^  '^"'^  Mafler,  teftifying  "whofe  Chaplains  they  be,  or  elfe  not  to 
fr.uedw'vlh  enjoy  fich  Plurality  of  Benejices. 
the  Hand  and 

Seal  of  the  (.)tialitier  Jenk.  2-;.  pi.  91. —  And  fb  are  the  Words  of  the  Statute,  and  fi:)  Selling  onlv  is 
not  I'ullicicnt.  Godb.  41.  Queen  v.  Savacrc. By  the  Retainer  of  the  Number  allowed  by  the  Sta- 
tute, the  Statute  is  e>fecuted,  and  the  Perfon  fo  qualified  to  retain  h.is  r.o  further  Power  to  qualify  ano- 
ther,  by  doing  it  under  Seal  ;  for  the  Act  is  Froivi/fJ  «/'zy.r)'/,  f/j,r; //ryjljrt// /)<ji,'e  c°!=f.     Savil.  100.    The 

Qiieen  v.  Bifhop  of  Lincoln  and  Skilling ■  Hazi)ig  feen  the  Retainer  under  the  Hand  and  Seal  of 

the  Peer  that  gives  the  Qualification,  is  good  Evidence  of  the  Retainer.  Litt.  R.  i.  i  he  King  v. 
Frankwell. 

On  a  Queftion  whether  a  Lcafe,  granted  to  W.  the  PlaintitF,  by  a  Parfon  of  a  firft  Living  with  Cure, 
and  above  8  1  a  Year,  was  good,  he  having  accepted  a  2d  Living  w  ith  Cure  and  of  S  1.  before  the  Leafe 
■was confirmed  by  the  Bifhop,  and  he  being  Chaplain  to  Queen  Eliz,  but  no  Tellimonial  being  produc'd 
(the  Parlbn  having  been  dead  50  Years,  and  the  Leait;  continuing,  as  being  nude  for  Si  Years)  it  came 
in  Debate  v/hvther  a  Retainer  by  I'.irol  ivly  by  the  Queen,  w.u;  not  (ufficicnt.  Coke  Attorney  General 
infiftcd  that  Chaplain  may  be  retained  by  Parol  without  Teftimonial,  and  that  Qualification  comes  timely 
enough,  if  i^ade  before  he  is  Impleaded  ;  fo  that  he  has  it  in  Pugno  to  fhew  to  the  Court,  tho'  he  h.id  i: 
not  at  the  Time  of  t.diing  the  lecond  ficnerice.     And  adjudged  accordingly  for  the  Kealbns  aforefaid. 

Sav.  ,155.  pi.  215.  Whctftone  v.  Hickford Cro.  E.  424.    42?.  Mich.  ;;  &  58  Eli.-,.   B.  R    S  C. 

Poph.-lm  held  that  the  (..>Licen  could  not  retain  by  Parol  only  ;  but  Kcnner  c  contra.  It  wasfhewn  that  Y 
during  liis  Lite  uas  reputed  her  Chaplain,  and  performed  the  OfH^e  of  Chaplain  as  well  in  her  private 
Clofet  as  cKew  here,  and  had  all  the  Benefits  us  her  Chaplain  &c  Wherefore  thcCourt  (aid  that  it  ihould 
he  intended  that  he  was  her  Chaplain,  and  well  and  duly  retained  ;  and  therefore  it  was  held  that  he  was 

a  Perf()n  able  to  make  fuch  Lcafe  ;  and  the  Jury  found  for  the   Plaintili 1   Salk,  1O2.  in  a  Nota, 

in  the  Cafe  of  Brown  v.  Mugg.  citcj  S.  C. 

.?.  23.  Dolors  and  Bachelors  of  Divinity,  Doflors  of  La-w,  and  Bache. 
lurs  of  Law  Canon,  admitted  to  the  /aid  Degrees  by  either  of  the  Univerjities  of 
this  Realm,   and  not  by  Grace  onlv,  may  pnrcl.afe  fuch  Licence  to  keep  fj.o 


J  —  —  — J -  —      ...  -  , .-, 

this  Realm,   and  not   by  Grace  onlr, 
Benrjices  with  Cure 


S.  29. 


Prcfentation. 


3^^ 

S.  29.  It  pall  he  lawful  to  Spiritual  Perfons^  being  Chaplains  to  the  King,  If  one  being 
to  accept  (uf  the  King's  Gift)  any  Bemfces,  to  lahat  Nuviber  foevcr^  "without  ^!"-'  ^''^l'> 
the  incurring  the  Penalty  of  this  Aft.  takfs'Tn;- 

jhoprick,  lie 
ceafes  to  be  the  King's  Chaplain,  and  Bifhofs  are  nor  in  that  RefpeiSiChaplSins  to  the  Kinr,  witiiiii  the 
JSkjniiig  of  this  Law  ;  So  that  the  Claule  ot  the  Statute;  which  gives  the  King  Power  to  give  as  many 
Benehccs  as  lie  will  ot-  his  own  Gift  to  his  Chaplain,  will  not  Icrve  them.  Per  Hobaic  Ch.  ].  Hob.  i  5-. 

in  C'ale  of  Colt  and  Glover  v.  Bifhopof  Coventry. The  kinp;  l>)  a  Speii.Tl  Picvijo  in  tleStatute  21  //. 

S.  may  give  to  any  of  his  Uaptnins  as  many  Benefices  as  !.e  pkafe.  Bur  ocherwilc  it  is  of  a  Conunon  Pcrlbn  •, 
for  they  are  lUnted  by  the  Statute.  Adjudged  4  Le.  j^; .  pi.  40Z.  Triii.  1 1  Jac.  0.  B.  Bifliup  of  Exe- 
ter V.  V\  allop. 

S.  14.  Every  Archbipop  and  Duke  may  have  each  of  them  6  Chaplains.      The  Arcli- 

bilhop's 
Chaplain  having  one  Benefice  of  the  Gift  of  the  Queen,  procured  a  Difpenfation  to  Have  and  Enjoy  5 
Benefices  hicompatil'lr,  which  the  Qiicen  confirmed  under  the  Great  Seal,  Ita  quod  &c.  Abfquc  in-.pedi- 
nicnto  alicujus  Statuti,  aut  aliqua  alia  re  quacunquc  Non  Obllante,  by  Virtue  whereot  he  obtained  two 
others  incompatible.  And  it  was  a  (lueftion  whether  the  firfi:  was  void  by  the  Statute  21  H.  8.  or  not. 
And  the  next  Term  Judgment  was  given  for  the  Queen  without  Argument.     D.  551.  b.  pi.  25.  Trin. 

iS  Eiiz.  Coxc'sCafc The  Reporter  adds  a  Nota,  that  (o  much  of  the  A6t  of  21   H.  8.  as  concerns 

the  procuring  Difpcnfations  from  Ron'e  for  Pluralities  or  Non-Kchdents,  and  all  Words  and  Sentences 
concerning  it,  and  alio  the  intire  Act  of  the  25th  for  granting  Ditp-nlatisns  at  Canterbury,  ar;  repealed 
by  the  Adt  of  i  &  2  P.  &  M.  cap.  S.  And  by  the  Act  of  £ii7..  i.  the  entire  Act  of  the  i  &  2  P  &  M. 
is  repcal'd,  andalfo  this  Part  of  the  21  H.  S.  and  no  Words  of  Reviving  thereof;  for  this  had  been 
meerly  contrary  t-i  the  Intent  of  the  Aft  ;  but  in  the  Aft  of  the  25th  which  is  Revived,  there  i'^  a  Pro- 
vi(b  ai'd  Reftraint  to  Canteibnry,  for  Difpenlations  dero^;arory  or  contrary  to  the  Aft  of  21.  which  af- 
fi.\cs  the  21  to  be  in  Efie  and  Force.     D.  352.  pi-  25.  at  the  End. 


S.  15.  Every  Alarquis  and  Earl  may  have  s  Chaplains.  Kr\  Infant 

S.  16.  Every  Vifcount  and  Bi/hcp  may  have  4.  •/■"•''•''  of  10 

Years  ot 
ited  in  Afton's  Cafe,  a,  ;  f 
the  Earl  of  Southainptoa. 
ij..  1111..  ovi<.  29  cap.  5.  cues  ii  I.. 
If  the  i'on  ami  Heir  Jpparetit  oj  a  Lord  retains  a  Chaplain,  hi.s  F.ithcr  dies  ;  this  Retainer  is  not  fuffi- 
cieiit,  but  there  muft  be  a  New  Retr.iner  Jenk.  2;2.  pi.  91. — Watf.  Comp.  Inc.  Svo.  95.  cap.  5. 
cites  S.  C. 


Age,  retair.eti  a  Cr  aplain,  and  held  good  within  the  Statute.  4  Rep.  119.  citei 
the  Qiieen  v.  the  Eifhop  of  Salisbury.  Pafch.  44  Eli/.,  upon  a  Retainer  by  \.\ 
• .Watf  Comp.  Inc.  Svo.  29  cap.  5.  cites  S  C'. 


iS".  17.  fhe  Chancellor,  and  every  Baron  and  Knight  of  the  Garter,  may 
have  3. 

S.  iH.  Every  Dut chefs,  Marchionefs,  Count efs  and  Baronefs,  f  being  Wi-  t^y  thefe 
doiiJs,  may  have  z.  2&ctXt 

She  be  a  Widow  at  the  Time  ot  the  F.eta'.ner.     4  Rep.  i  iS.  b.  Hill  45  Eliz..  C.  B.  in  Afton's  CalL-, 

S.  19.    'the  'Trcafiircr  and  Coniptroller  of  the  King's  Houfe,   the  -^^'''.^'j' The  Ch 
Secretary  and  Dean  of  his  Chapel,  the  King's  Almoner  and  Majier  of  the  i^in  of' a 
Rolls,  may  each  ol  them  have  2,  and  the  Chief  J  uf  I  ice  of  the  Ki:ig's  Bench,  Lord  having 
ana  Harden  oJ  the  Cmqne  Ports,  each  of  them  one  ;   and  each  oj  the  afore fud  f,"o  B<-ne- 
Chaplams  may  pure hdje  Licence  or  Dijpenf'.t. on  10  keep  two  Benefices,    *'''^^  ^^rc^wkh- 
Cure.  out  a  fpecial 

Licence  or  Dilpenfiuion  of  the  Metropolitan,  llrems  not  to  be  in  Danger  of  lofing  his  Plurality  by  Force 
of  the  Aft  of  21  H.  S.  becaale  the  Words  are  not  that  he  mult  lue  for  a  Lice. ice  8cc.  but  that  he  raiy 
fue  for  fuch  Licence  &c.  but  he  is  theiehy  in  Danger  by  the  Spiritual  Law.  Qiisre  bene  inJe.  D. 
512.  b.  pi.  US.  Anon. 

6*.  24.  Provided  that  every  Archbifhop,  bccaufe  he  mtif-  ufe  at  Confecration 
ofBifiops,  8  Chaplains  ^  and  every  Biftop,  becaufe  he  mult  ufe  at  the  giving 
of  Orders  and  Confecration  oj  Churches  6  Chaplains,  may  have  I'ji'o  Chaplains 
over  and  above  the  Number  limited,  whereof  every  one  may  purchafe  Dijpenfa- 
tion,  and  take  as  many  Benefices  -ivith  Cure  as  is  bejore  ajfignd. 

S.  25.  No  Per/on,  to  whom  any  Number  of  Chaplains  by  tire  Provifions 
aforefaid  is  limited,  jhall  advance  any  Spiritual  Perfon,  al-ove  (he  Number  ap- 
pointed, to  receive  more  Benefices  with  (Jure  than  is  above  limited  ^  and  if 
they  do,  every  fuch  Pcrjon  fo  advanced  above  the  faid  Number jh.dl  incur  the 
Penalty  in  this  Act, 

4  Z  S.  ?3. 


Prcfentation. 


366  

After  Mar-        '5'.  33.  Provided  that  every  Diitchcfs ^  Marchwnefs,  Countefs  and  Baroncfs 

ri.ige  with  a  (ji^doti'S^)  -who pall  tpke  Husbands  under  the  Degree  of  a  Baron,  tnay  take 

^trJiKtim    f'"^^^  Nuiubcr  of  Chaplains  as  if  they  had  remained  Widows^  and  thej'e  may 

tiio'  after  '   takefuch  Number  of  Benefices. 

J»larriage  . 

with  a  Gentleman  flic  may.     Jenk.  275.  pi.  91. Watf.  Comp.  Inc.Svo.  34.  cap.  ;.  cites  S.  C. 

6.   25  H.  8.  16.  '?.  2.  Ena£ls  that  every  Judge  of  the  King  s  Bench  and 

Common  Plcas^  the  Chancellor  and  Chief  Baron  of  the  Exchequer,  the  King's 

Jttorney  and  ^oUtcitor-General  may  each  oj  them  retain  one  Chaplain,  having 

one  Benefice  zvith  Cure  of  Souls. 

Goldsb.  i6z.      7.  Difp-nfations  are  inroWdin  Chancery  in  a  Paper-Book  kept  there  by 

i,.C.— This  YV^ay  of  Memorandum;  as  for  Inltance,  25th  Augujf,  Jn no  29  Reginx 

^aI°J^-eed     ^S^l-  Difpenfatmu  fuit  cum  Roberto  Mai  ck  Art  mm  lUigiflro  Capellano  Do- 

by 'the  Jufti-  minje  Borough,   ut  ipfe  una  cum  RecJoria  Ecclefix  Parcchialis  de  Morton  Ec- 

ces  not  to  be  clef/am  de  Staines  recipere  ^  quoad  vixerit  retimre  poffit.     Mo.  434.  in  Cafe 

pood  cither  ^f  K^obins  V.  Gerrard  and  Prince. 

for  the  Man- 

ncr  or  the  Matter,  but  fliculd  be  in  a  Roll  ;  bat  the  Negleft  of  that  is  onl)'  the  Contempt  of  the  Clerk, 

and  not  conditional  to  the  Dilpenfation.     Mo   44-.  ut  ante. _S.  C.  cited  Vent.  51^.  in  Cafe  of  the 

Ironmonrei's Company  v.  Nailer,  that  where  the  *  21  H.  8.  appoints  the  Inrolmcnt  of  DIfpenfations  in 

Chancery,  yet  the  not  doing  it  doe<  not  invalidate  the  Dilpenfation. — Popham  held  the  Inrolment  good, 

and  that'  it  was  an  Oifcnce  in  the  Clerk  only,  and  finable,  but  no  Offence  in  the  Party  ;  for  he  may  not 

'  procure  the  Clerk  to  make  his  Entry  in  another  Courfe  than  the  Cuftom  is,  and  confequently  no  Fault  in 

liim.     Goldsb.  164.  165.  in  S.  C.  ofRobins  v.  Prince. *  [The  Act  appointing  the  InroIm;nt  is  not  the 

ai  H.  S.  but  the  25  H.  S.  cap.  21.], 

8-  P.  ReCior  of  C.  was  ek^ed  Bifhop  of  Oxford.  Before  his  Confecra- 
tion  the  Archbi/hop gave  him  a  Difpenfatwn  purfuant  to  the  Statute  ot  H.  8. 
to  retain  his  iliid  Rectory  Vv  ith  the  Biihoprick,  which  the  King  confirmed 
by  Letters  Patents  under  the  Great  Seal,  and  that  the  Biihop  might  en- 
joy &c.  fo  long  as  he  continu'd  Biihop  of  Oxford,  "with  a  Non  Obfiante 
aliquo  Statuto,  or  other  Matter.  P.  died  i  VV.  was  eleded  Biihop  of 
Oxiord,  and  got  Letters  of  Dilpeniation  &c.  to  hold  the  faid  Rectory 
in  Commendam  &c.  Tlie  Patron  ot  C.  brought  a  Quare  Impedit.  Judg- 
ment was  given  by  the  Opinion  of  the  whole  Court,  That  the  Avoidance 
was  by  Death,  and  not  by  Celfion.  Vaugh.  iS  1027.  Pafch,  19  Car.  2. 
Edes  V.  Walter  Biihop  ol  Oxford. 


.'"in^h^e"''       (^-  b-  -)     fHjat  fiall  be  faid  to  be  PJwaUtks. 

Notes. 

♦  S.  having  I.  T  N  the  Statute  of  21  H.  8.  13.  is  a  Provifo,  That  no  Deanry,  *Jrch' 
one  Benefice  ^  deaconry,  Chanccllcrjhip,  Chanterfhip,  or  f  Prebend,  nor  Parfonage  that 
was  preient-^.^^^  ^  ^  Vicar  endow' d,  nor  any  Benefice  perpetually  appropriate,  be  taken  to 
■and°  hen  '    ^^  ^  Benefice  with  Cure  of  Souls  in  any  of  the  Articles  of  this  A3, 

purchas'd  a 

Difpenfation,  (which  was  too  late)  and  then  was  qualified,  and  afterwards  accepted  the  Archdeaconry 
of  Gloucefter.  Wrav  faid,  That  a  Doctor  of  the  Civil  Law  affirm'd  to  him,  that  their  Law  is.  That 
it  One  having  a  Benefice  with  Cure  of  Souls  accepts  an  Archdeaconry,  the  Jrcl.ciencomy  is  void;  But 
Wray  faid,  That  he  conceiv'd  that  upon  the  Statute  of  2t  H.  S.  the  Law  is  qualified  bv  this  Provifo. 
Le.  516.  pi.  442.  Pafch.  51  Eliz,.  B  R.    Underbill  v.  Savage.—  S.  C.  fhovtly  ftated,   4  Le.  S8  pi.  1S5, 

by  Name  of  Savage's  Cafe. t  'faking  a  Prebend  does  not  make  a  Church  void.     Mo.  26 1.  pi.  41 1. 

^  It  was  faid,  that  the  2iff  ot  H.8.  againlt  Pluralities  does  not  extendto  ReBories  -where  there  are  I'lcar- 
agei  endcw'd ,  and  Lindwood  defcribes  a  Benefice  without  Cure,viz.Cujus  CjraVicariis  perpetuo  exercenda 
eft;  Otherwife,  where  the  Vicar  is  Temporal  and  Removable.     Arg.  Vent,  i  5.  Pafch.  21  Car.  2    B.  R. 

in  the  Cafe  of  Heath  v.  Pryn. A  Man  was  prefenled  to  a  Church  with  a  J'kar.^ge  endow'd,  the  Par- 

fbn  accepted  of  a  Prefentation  to  the  Ficcirage  withcut  Difpenfation  ;  whether  this  v.  ere  a  Plurality  by  the 
Law,  and  by  the  Statute  of  21  H.  S.  was  the  Queftion.  Hobart  Ch  J.  was  of  Opinion,  that  norwith- 
ftanding  they  were  feveral  .^dvowfons,  and  feveral  Quare  Impedits  might  be  brought  of  them,  and  fe- 
veral  Aftions  maintain'd  for  their  feveral  PofTeilions,  yet  the  Prefentment  of  one  Man  to  the  P.irro:iage 
'and  Vicarage  was  no  Plurality,  becaufc  the  Parfonage  and  Vicarage  are  hut  cneCme ;  And  there  is  a  Pi-fv- 

vi'b 


Prcfentation.  (^67 

vifo  in  the  Statute,  That  no  P.irlbiiagp,  that  hath  a  Vicar  endow'd,  fhall  be  talccn  by  tlic  N.imc  of  a  Be- 
nefice witli  Cui't-  within  the  Statute,  as  to  make  it  a  Plurality.     Godolph.  Rep.  2y6.  cap.  i(>.  S.  5.  cites 

Mich.  22  Jac.   B.R.  Wood  ley  and  the  iiilhop  of  Exeter,  and  Man  waring's  Cafe.     Cro.  par.  2. 

[But  I  do  not  obfcrve  this  Point  there.] 

2.  InQuare  Impedic,  it  appear'd,  That  the  Inctimhcnt  of  a  Church  in 
England  was  made  a  Eijhof  oj  Ireland ;  and  ajter-juards  the  King  granted 
to  the  liiid  Bilhop  to  have  and  retain  the  faid  Church  for  6  Tears  in  Cvm- 
inetidani.  It  was  held,  that  the  Commendator,  notwithltanding  this 
Grant  lor  6  Years,  hath  yet  Power  to  retain  during  his  Lile,  and  cannot 
be  abridg'd  by  the  Limitation  tor  6  Years ;  and  it  is  like  a  Confirmation 
or  Attornment,  or  Allcnt  to  a  Legacy,  and  cannot  abridge  the  Elbite 
which  is  confirm'd,  but  that  it  Ihall  enujrc  according  to  the  filiate  which 
is  limited.  Per  Hucton  &  Winch  juftices.  Cro.  J.  692.  Mich.  22  Jac. 
C.  B.  in  the  Cafe  ot'  ^\'oodley  v.  Manwaring  &c. 


(I.  b.  3)     Voidame.  .^^  lu/'j/ 7/W  by  Pluralities. 

I.  T  T  was  held  Per  Cur.  That  if  a.ny  Far  fan  who  was  onj^cd  of  his  Par- 
\^  fonage  /;/  the  late  Wars,  by  that  which  they  then  cail'd  Seqiieltra- 
tion,  for  not  conforming  to  the  Presbytery  &c.  had  accepted  another  Be- 
nefice by  Prcfentation,  and  Confirmation  by  the  ConiniiJ/icners  or  Triors, 
(there  being  then  no  Bilhops)  this  was  not  any  Avoidance  of  the  i/?  Living 
tinkfs  he  continued  in  fuch  j'^oz/ii' Living  the  25th  of  December,  Anno 
1659  (which  is  the  Time  mention'd  in  the  new  Statute)  and  fheiv'd  his 
Liking  thereto.     Sid.  16:?.  Mich.  15  Car.  2.  B.R.  Brown  v.  Spcnce. 

2.  It  has  been-refolv'd  in  JpoIlaUD'S  Cafe,  and  likewife  in  DlSbp'0  S.  P.  Line 
Cafe,  in  the  4  Rep.  and  often  before  lince  the  Council  of  Lateran,  Anno  ^^  in  the 
Domini  12 15.  That  if  a  Man  has  a  Benefice  witiiCure,  whatever  the  Va-  I^^'^^d^^"" 
Itie  be,  and  is  admitted  and  inltituted  into  another  Benefice  with  Cure,  U" elites  4 
of  what  Value  foever,  having  »o  ^lalification  or  Difpenfation,  tht  Jirjt  Ke^  ;9.  b. 
is  ipfo Jaffa  void,fo  as  the  Patron  may  prelent  another  to  it  if  he  will ;  but  inDigby's 
if  the  Patron  will  not  prefent,  then  it'  i/nder  the  Value,  fioLapfe  ihall  incur  .*'^r~  ^^^ 
'till  Deprivation  of  the  firll  Benefice,  *and  Notice;  But  if  of  the  A'^alue  jt(-gg°,  ^^ 
of  81.  or  above,  the  Patron  at  his  Peril  mult  prefent  within  6  Months  be  allow'd 
by  21  H.  8.   13.    Vaugh.  131.    Hill.    22  &  23  Car.  2.    C.  B.     Shute  v.  that.^dmi!!;- 

H^ ■     1  on  and  InlH- 

'c>"^*'"  tutiondonot 

make  thefirft 
Ci^e  zoid  vithovit  Induftior.  Trin.  i  &  2  Ph.  &  M.  Agar  v  Bifliop  of  Pcterburgh  and  Denn . —  By  the 
taking  the  fecond  Benefice,  and  by  ihe  Induction  thereto  the  firft  is  clearly  void.  Cro.  £.  6oi .  Mich. 
-9  &  4oElii.  B.R.  Arniigerv.  Holland. The  Incumbent  after  taking  the  (aid  Benefice  may  offi- 
ciate the  Cure  'till  the  King  hiral'elf  takes  Care  to  do  it  or  'till  another  -fliall  be  admitted  and  inftituted 
to  it,  and  iliall  be  fiabjedt  to  Payment  of  Tenths,  and  fubjeft  to  Dillrefs  for  Rent  Charge  and  other 
Charge  which  lies  upon  the  Rettory,  becaufe  he  takes  the  Profits  as  one  that  enters  without  Admillion 
and  Inftitution  fhall  be,  but  neither  the  one  nor  the  other  can  bring  Aftion  of  Juris  utrum,  or  Writ  of 
Annuity,  nor  fue  for  either,  nor  plead  as  Incumbent  in  PoflcfTion  in  f^iare  Impedit,  without  a  Qualifi- 
cation and  Difpenfation.     Jo.  339.  Hill.  9  Car.  the  King  v.  PrielK  *  Godb.  23.  pi.  33. 


3.  Where  a  Parfon  is  prefented  to  a  2d  Benefice  there  is  a  Difference  S.  C  Vaugh. 
lefieeen  Non-fibfcribtng  and  Not  reading  after  Subfcript ion,  as  to  the  malving  P^,^"-  " 


1  to  in- 


afterwards  read  them  within  the  two  Months  j  lor  in  fuch  Calb,  the  firit  i|;,m'dto 
is  void  and  the  fecond  alfo.  Per  Vaughan  Ch.  J.  and  that  the  Value  is  dine  that 
not  materiaL  And  Judgment  accordingly.  2  Jo.  18.  Shute  v.  Higden.       the  Not 

Reading  the 
Articles  Ihould  not  make  the  Benefice  void  ab  Initio  ;  but  the  Statute  is,  That  .Admiflion.s,  Inlhtution.';, 
and  Induitions  made  contrary  to  the  Ad  Ihould  be  void  ab  Initio  :    Now  he  tb.at  does  not  fubfcribc  i.s 


not 


368 


Prcfcntation. 


not  inftitutcd  8cc.  accordirg  to  tVie  Act,  and  fo  it  is  void  ab  Initio.    Judgment  for  the  PlaimifF  Per  tot. 
Cur.     Frccm.  Rep.  ji.  pl.64  Mich.  1672. 


(I.  b,  4)      D'tfpenfatmis.      Granted  hy  nahat  //"Tirdsy   mui 
mcejjary  in  njohat  Cajcs. 

The"  he  his.  I.  A^  H  A  P  L  A I N  ad-vanc'd  to  two  Benefices  with  Cure  oti'^ht  to  have 
nortiicDi'"-  \^^  theKi>igsDifpenfcnionforNon-Re/idency^  and  ought  to  hcRcJi- 
pcnfition  of  ^^^^^  npQfi  Qjjg  qj  them.  Confirmation  of  the  King,  and  i^ifpenfation  of 
u-^^"^u'  the  Jrchhifljop  are  necellarv  regularly  to  maintain  Pluralities.  Jenk. 
Sr-not  ro  273.  pl.  91.  ^ites  Rep.     Deary's  Cale. 

r,f  I'ofitK' his  Plurality  by  force  of  the  Act  of  zi  //.  8.'  becaufe  the  Word.sare  onlv,  Tiiat  He  may  fiie 
for  a  Luetice  &ic.  but  iie  is  in  Danger  by  the  >S>/.7//m/ L.ttt'.     Ciuxrc,  bene  inde.     1)  312.  b    pl.  S8. 

vVatf.Comp.      2.  Quare  Impedit  by  the  Qiieen  for  having  taken  a  2d  BeneficCj  and  a 
Inc.  Svo.       Lapfe  incurr'd  ;  the  Defendant  pleads  a  Dil'penfation  from  the  Archhijhop. 
"axctt  C      Upon  Oyer  of  the  Difpenfation,  -which  recited  the  two  Benefices  to  be  of  fmali 
Vdlite,  and  then  fiid,  UnimiiSj  incorporamiis  kB  annextnnts  the  one  to  the 
other  J  or  the  Life  of    the  pre  fen  t  Incitvibcnt^  without   the  Word   (Difpen- 
famiis)  for  the  Taking  thereof,  It  was  objecled,  that  this  Claule   could 
not  enure  as  a  Difpenfation,  becaufe  there  was  no  fuch  Intention,  but  to 
make  an  Union ;  and  this  cannot  be  an  Union,  becaufe  there  is  not  the 
Concurrence  of  the  Patron  and  Ordinary,  Sed  non  Allocaturs  fur  Per. 
Curiam,  tho'  there  cannot  be  a  Perpetual  Union  without  the  Concur- 
rence ot  the  Patron  and  Ordinary,  becaufe  'tis  a  Lofs  to  them,  yet  there 
may  be  a  l^emporary  Union,  i.  e.  to  the  Perfon  ;  as  in  this  Cafe,   for  the 
Lite  of  the  Incumbent,  and  this  (as  was  fiid  at  the  Bar,  and  not  denied 
by  the  Court)  tntght  be  done  by  the  Metropolitan  alone  ;  for  after  the  Death 
of  the  Incumbent  the  Union  is  diilblved,  and  no  Lofs  accrues  either  to 
the  Patron  or  Ordinary  in  the  mean  time,  lor  one  of  them  had  his  Pre- 
fencation  and  the  other  his  AdmilHon  j  and  this  is  a  compleat  Difpenfa- 
tion, and  allow'd  by  the  Statute  21  H.  8.    (viz.)  Any  Licenfe,  Ufe, 
Union,  or  Difpenfation  to  the  contrary,  and  no  Necelfity  for  the  Word 
(Difpenfation.)     Cro.  E.  719,  Mich.  41  Eliz.  C.  B.  the  Queen  v.  Page 
and  the  Bilhop  of  London. 
Jo.  ;94  S.C.      3.  A  Parfon  who  had  one  Benefice,  and  being  Chaplain  to  an  Earl  got 
xvherctlie      a  Difpenfation  to  hold  another,  Modo  Jtt  infra  10  Miles  of  the  (irfi  ;  and 
D°mn-cL^non  ^^  accepted  another,  with  Cure,  and  was inltituted  and  inducted,  but  it 
lUuit'rl  10    was  17  Miles  diltant  from  the  firlt ;  and  the  Patron  not  prelenting  to  the 
Miles  the      firft  Benefice  within  6  Months,  the  Biihop  collated  to  the  rirli:,  and  his 
one  of  the     Coilatee  was  inltituted  and  inducted;    and  in  Eje6lment,  the  C^uellion 
t'lmt^Viie^'lu-  was.  Whether  the  Words  (Modo  Jit)  made  it  a  conditional  Difpenfation, 
iHcesat^rccd,  and  the  firll  Benefice  void,  when  he  took  the  fecond.    Adjudg'd,  that 
That  it'        tho'  thefe  Words  ufually  made  a  Condition,  yet  by  the  Civil  Law  they 
made  no        were  only  a  Caution  or  Admonition,  unlefs  other  W^ords  are  added,  viz,. 
to°mtkrt"ie   That  if  he  do  otherwife,  then  it  Hull  be  void  i    and  therefore  in  this 
firft  void.—  Cafe  all  the  Court  refolv'd,  that  they  Ihall  not  make  a  Condition,  and  the 
Watf- Comp.  rather  becaufe  of  the  great  Inconveniency  which  might  follow,  to  make 
Inc.  Svo.  5y.  jj  great  many  Benefices  void  by  Lapfe,  which  have  been  quietly  enjoy'd 
cap^3.cites    ^^^j^^  ^^^j^  Dilpenfations.     Cro.  Car.  475.  Trin.    13  Car.  B.  R.  Dodfon 
V.  Lynne. 

4.  The  Defendant  was  Chaplain  Extraordinary  to  the  King,  being 
Incumbent  of  Stockton,  and  afterwards  inducted  to  the  Rectory  ot  Ink- 
borough,  being  above  the  yearly  Value  of  8  1.  by  reaf)n  whereof  Stock- 
ton was  void,  and  ^o  continued  two  Years;  and  then  he  was  again  pre- 

lenred 


Prefcn  ta  tion .  ^  (5p 

fentcd  to  it  by  the  King,  as  upon  his  Title  of  Lapfe,  and  was  inftituted, 
and  inducted  again  to  Stockton,  being  Jikewife  abo\e   8  1.  Value.     Per*  ^^  ^ 
Cur.  i/,  A  rnfciitntion  of  the  King  of  his  0\vn  Chiiphuu*  imports  a  Difpefipi-  ^j.^^,,  '  ,  ^g 
ttoii^  which  the  King  himleJt' hath  Power  to  grant  as  Supreme  Ordinary,  cites Trin.  " 
and  fuch  Prcientce  lliall  hold  a  Plurality  without  any  previous  Difpenla-  u  Jac  C.B. 
tion  ;  But  if  fuch  a  Chaplain  be  prcfcrited  to  a  feiorid  Hcncjice  by  a  SubjcB  Adjudj^'d  in 
he  '.nufi  have  a  Difpaifation  before  he  be  inltitutcd  to  it.     2dly,  A  Chap-  si^Hc'n-" 
Iain  Extraordinary  is  not  a  Chaplain  within  the  Benefit  of  the  h£i  21  Wallop  v. 
H.  8.   cap.  1 3  i?k:  14.   but  only  his  Chaplains   in   Ordinary.      Judgment  the  Riflwp 
for   the    Plaintift',  which   was  atTirnfd   in  Cam.  Scac.  by  a  Alajority  c  f >jf  ^^x^k^'- 
One.      Noca,  He  has  no  Waiting  Time,  but  his  Name  is  only  enter'd 
in  the  Book  of  the  King's  Chaplains  i    whereas  a  Chaplain  v\ichin  that 
Statute  ought  to  be  retained  under  Seal,      i  Salk.  161.  Mich.   12  W.  3. 
B.  R.  Brown  v.  Mugg. 


(I.  b.  5)     ^ImiVijicat'ion.     What  is  good,   or   may  become 

good    Ex  pojl   Fach. 

Owen  51.  S. 
I.  T  N  ^iiare  Impcdit  by  the  Qiieen  to  prefcnt  to  the  Church  of  M-  ^  ^djud^  d. 
_|^  which  was  void  by  the  Incumbent's  taking  another  Benefice,  notpi  ,X  s.  C 
being  qualified  ;  tht  Defend atit pleaded^  'thcH  he  -X'^u  Chaplain  to  Sir  James  and  th.tt  tlie 
Crolts,  CvinptroIIer  of  the  Hoiifhold^  and  who  by  the  Statute  of  21  H.  8.  *'P'"',""  "' 
might  ha\e  two  Chaplains,  and  might  qualify  them  to  take  two  Bene-  ^-oi'^ 
fices,  and  tliat  he  had  a  Difpenlation  accordingly.     The  Plaintiff  replied,  ivMy. 


That  the  fiid  Sir  James  Croii:s  had  tzvo  other  Chaplains  advanced  to  two  And.  200.  pi. 
Benefices,  and  who  -ixeji ill  alive,  and  fo  the  third  could  not  be  qualified  ^3'^-  ^  ^• 
&c.  The  Defendant  rejcin'd.  That  one  oi  thoie  tv\-o  Chaplains  was  dif- 
charged  by  the  laid  Sir  James  Crofi:s,  to  be  his  Domcllick  Chaplain,  fo 
he  hath  now  but  two  Chaplains,  of  which  the  Defendant  is  one  ;  and 
upon  Demurrer,  it  was  adjudg'd.  That  after  a.  Perfon  hath  retained  his 
full  Number,  and  they  are  certified  Sub  Signo  &  Sigillo  to  be  his  Chap- 
lains, and  thereby  qualified  to  have  two  Benefices,  tho'  he  afterwards 
remove  them  for  any  Diipleafure,  or  otherwife,  out  of  his  Service,  yet 
during  their  Lives  he  can  qualify  no  other,  for  they  are  tliil  his  Chaplains 
at  large,  tho'  not  his  Domellick  Chaplains,  and  io  are  Chaplains  within 
the  Statute.  Godb.  41.  pi.  47.  Trin.  28  ¥1\l.  C.  B.  Rot.  1130.  The 
Queen  v.Savacre. 

2.  \  Lord  retains  6  Chaplains  at  one  and  the  fame  'Time  by  Letters  Tefti-  D  -n.  b. 
monial,  where  he  is  only  intitlcd  to  retain  three. — All  lix  are  prelerr'd  P'' ^^'-   ''^- ^• 
to  fix  feveral  Pluralities. — The  three  who  are  firft  promoted  are  warrant-  p|'''y,'  ^^-^'^ 
ed  by  the  Statute,  snd  yet  the  Reteiner  was  not  according  to  the  Sta-  That  neither 
tute,  But  In  Aiqiiali  Jure  Melior  efi  Conditio  Pofftdentis.  4  Rep.  90.  Trin.  of  them  is 
43  Eiiz.  in  Drury's  Cafe.— cites  D.  132.  _  qualified. 

3.  Reteiner  of  a  Chaplain  more  than  the  A£f:  allows  is  not  made  good  by  4  Rep.  90 
the  Death  of  the  other  Chaplains  afterwards,   but  he  muff  have  a  ne-^  Re-  S. C. — Jenk. 
teiner.     Per  3  J.  v.  Gawdy  ;  and  adjudg'd  accordingly,   and  the  Judg-  ^'^  p'-9'- 
ment  affirm'd.     Cro.  E.  839.  TTrin.  43  Eliz.  Drury  v.  the  Queen.  b^TsV''^' 

4.  If  a  Man  be  a  qualified  Chaplain  to  any  Subje6f,  and  then  l)e  7nade  a 
Bijhop,  his  Qtialification  is  void,  fo  as  he  cannot  take  two  Benefices  De 
Kovo  after  by  force  of  that  Qualification.  Per  Hobart  Ch,  J.  Hob.  157. 
in  the  Cafe  of  Colt  and  Glover  v,  the  Bifliop  of  Co\  cntr}-. 

5  A  (I.  b.  6) 


c^yo  Prefentation. 


•""^ ^^;^^Xp'-  (I.  b.  6)  Raa'iHcr.  Ho^jo.  And  SlmiVificaUon  AnnuU'd 
the  Notes.  or  Dijlroyd  by  what  Act. 

I.     A    lord's  Chaplain  being  fufficiently  qualified  with  his  Mafler's 

_/\  Tertimonial  Sign'd  and  Scal'd,  that  he  is  his  Chaplain,    and 

having  alio  a  Special  Difpcnfation  tor  a  Plurality,   and  being  once  ad- 

\ancecito  the  Plurality,  ought  to  enjoy  it  during  his  Life,  notwith- 

ftandiiig  his  Maftcr's  Death ^  or  Depan/ire  from  his  Alafier's  Service.    Per 

Cadin,  Saunders  and  Dyer      D.  312.  b.  pi.  88.  Trin.  14  Eliz,.  Anon. 

But  the  Re-       2.  A  Countels  had  2  Chaplains  by  Patent,  and  a  3^  without.    He  •with'- 

poi-ter  adds  a  p,^^  ,,,,^^j  j-^.j^  retained.,  and  took  2  Benefices  by  Difpenfation,  and  adjudged 

l^ea^oriof      liuviul  ;  ior  the  Patent  is  not  of  Necelfity,  but  only  in  Cale  where  he 

the  Caieof    has  Caufe  to  Ihevv  it.  The  Retainer  is  good  without  Patent.  Mo.  277.pl. 

Whetcomb    432.  Paich.  31  Eliz,.  C.B.  The  Queen  v.  Bifliop  of  Lincoln  and  Skifling. 

[Whetftone]   ^^  ^  ^  r  5 

V.    Hickford Sav   lot    pi   181.  S  C 4  Rep  S9.  b.   S.  C. — Jenk.  272.  pi.   91. — Mo  561.  p], -(J^. 

Mich.  41  &  41  Eli?..  Adjudged  by  Anderfon,  Glanvill  and  Kingfmili,  that  he  who  was  firll  retained 
fliould  be  preferr'd,  and  not  he  that  fifft  took  a  id  Benefice,  and  got  DifpcnCation  ;  but  Walmfley  eron- 

tra.     The  C)ueen  v.  Drcvvvy,   as  to  the  fr ft  Retainer Cro.  E.  724.    2  Juftice.,  who  before  inclined 

othwwife,  changed  their  Opinions  ;  And  fo  it  was  adjudged  that  the  jd  Chaplain  was  not  within  the  Be- 
ne.'it  of  the  Statute  21  H.  S.  15.  The  (^ueen  v.  Drury. 

4  Rep.  118.  J.  Baronefs  JVidcW  retains  2  Chaplains,  and  they  purchafe  a  Difpenfa- 
Afton  s  Cafe,  {-[qj.,^  .^j^^  ,-[^g  Baronefs  marries  before  the  Chaplains  accept  a  double  Be- 
"VVatf  Comp.  ncfice  i  yet  they  may  take  two  Benefices,  becauie  the  Alarriage  is  no 
Inc.  Svo.  -4  Difcharge  of  the  Service  ^  but  otherwife  it  i:?  it'Jhe  dics,  or  if  the  Baro/t 
cap  3.  ci'es  difcharge  the  Chaplains.,  as  he  may,  but  it"  he  does  nor  difcharge  them, 
j^^'--^"'^'°  but  dies  ;  there  needs  no  New  Retainer.  Mo.  67S.  pi.  924.  Mich.  44 
favs  hereon"   &  45  Eliz-  C.  B.  The  Queen  v.  Biihop  of  Peterborough. 

ceivcs,  that 

if  any  other  Perfon  capable  of  f]ualifyinga  Chaplaiti  To  hold  a  Plurality,  difcharges  his  Chaplain  before 
he  has  taken  the  Benefit  of  liis  being  qualified,  he  cannot  afterwards  lawfully  hold  two  Benefices  with- 
in the  Statute  21  H.  S. 

The  Earl  of  4.  Attainder  of  the  Lord  S^c.  is  Difcharge  of  the  Service  and  Power  to 
?;'^'j'^|'"°'!'^'  qualify  ;  and  thofe  Chaplains  retained  and  qualified  before,  who  have 
3  Chaplain  ^'^^  taken  double  Benefices,  are  difabled  by  the  Attainder.  Mo.  67S.  pi. 
and  after  w'as  924.  Mich.  44  &45  Eliz.  in  Cafe  of  the  Queen  v.  Biihop  of  Peterborough. 

attainted  of 

High  Treafon,  and  afterwards  during  his  Life,  the  Chaplain  having  one  Benefice  of  the  Value  of  S  1. 
accepted  a  fecond  Benefice  with  Cure.  And  it  was  adjudged  that  the  firft  Benefice  was  void  ;  for  tho* 
the  Earl  was  alive,  vet  the  Quality  of  his  Perfon  was  altered  ;  for  by  the  Judgment  he  was  become  Ig- 
noble   4  Rep.  117.  b  Hill.  45  Elii.  C.  B.  in  Acton's  Cafe. — Cites  it  as  the  Earl  of  W'ellmorelarid's  Cafe. 

5.  If  an  Officer  allowed  by  the  Statute  to  have  one,  two  or  three  Chap- 
lains, retains  a  Chaplain,  and  after  is  removed  from  his  Office,  in  this 
Cafe  the  Retainer  at  the  Common  Law  remains,  but  the  Retainer  upon 
the  Statute  is  determined  ;  lor  after  the  Remotion  the  Chaplain  can't  be 
Non-RelidetTt,  or  accept  another  Benefice.     4  Rep.  n8.  Afton's  Calc. 


(K.    b)      Advovvlbn.       ./^vo/dawe.      ff^jnt   will  be   an 
Avoidance,      yicceptmice  oj  a  B'lJIjoprhk. 

The  Church  i.  T  jf  au  Incumbent  be  ItmHC  'Bl'djOp,  tIjC  CljtirCl)  fgi  ^OlD.     D*  4» 

L7immedi-.    i    ^;     ^^^  '{^^   ^"^nP^^"^}  ?"^  ^tUOCUt,    136.   U.    7  Jp- 4^   ^5^ 
arely,  and      »»    »I  V*  4»    37*  tJ»    24  ^«  3.   26,    J)* 

the  Patron 


Prcfentation.  371 


may  prefent.     Br.  C^uii-e Impedit,  pi.  51.  cites  1 1  H.  4.  ;-.  59. Ail  his  Benefices  void,  md  the 

King  (hall  pi-cfcnt,  wliofocvcr  be  Patron.   Br  Qiure  Impcdit,  pi  4-. 

2.  31fti/C  Incumbent  of  a  Provoftry  llCClCftCO  Bifliop  of  the  Billioprick;  W«t<"  Com[>_ 
■which  IS  Patron  ol  the  Provoltry,  ailtl  attCUlUarUG  tIjC  King  grants  the  ^''^-  ^''°- 
Teiiiponikies  to  hnn,  pet  ttJC  prODallli)  iS  DOID  bCiOtC  ConVecratlOll  i.^r^^^'c"' 
jf  or  i)C  map  I'CflU'C  bCture,  aaO  IjC  IS  nut   loliljop  bclore  Conlccuaauu 

4'-  €*  ?>*  5*  b.  aDuiosco» 

i.  But  alter  Coniecration  tljC  PtOlJOlln)  121  WH.  41.  (!j*  3.  J«   D.  ntl= 

wwtxto* 

4.  SofljiilUtbeofa  Prebend.  11.  Ji),  4.  37.  b. 

5.  "Sfiiil  incuiubeat  bC  CiCaVCU  a  billiop  ot'the  fame  Dioccfc  tUfjCrC  Ij€ 

Uia9  Encumbent,  tije  Cljiircy  is  soiQtijcrcbpi  Jfor  Ijc  camiot  be  ^o- 
iicrapanQ  tambicct.  iDa.  i.  (i:oiuuieucaau  69. 

6.  60  If  Ije  be  CrcateD  JolfljUp  of  another  Dioc  le,  tljC  CljUrCl)  16  DOlU 

tI)ci*eiiD,  1 1. 1)'  4-  37-  b.  77-  Xu-caate  Iju,  luljo  Oas  taucii  apou  Ijr.n  tljc 
£>ifia  of  a  €^o\)cragn,  fijall  not  rcraia  tijChDmct  of  a  :SHib)ca:» 
7.  3f  an  Jincumbi'iu  be  elccrcD  'iauijop,  pet  tijc  Cijutc!)  13  not  Doin 

tljCrCbP  bctore  Conlecration.  1 1.  l^.  4.  37-  b. 

8»  StAl\  Incumbent  in  England  be  made  a  Biiliop  in  Ireland,  pct  tl}t 
(llpXti)  IjeitlliS  not  ^OID  tijCrebin  24.  e.  3*  2.  b,   :S'f '^  Dean  of  York  b^-^c  p  c     ,• 
made  Bilhop  ol  Limerick  m  Ireland,  tljlS  UiakCS  a   IDOIDailCe  Of  tOe  ,  Pa\-'h'"T 

Dcanrp  a<>  mil  as  iflje  Ijati  been  maoc'Btnjop  of  anp  iiJlace  in  €nij=  -reed'cicaV- 
lan'o.  15*3-  Car.  IXw^^  bcmtm  ^-^^I'ls  a/ni  Jjcon^h,  EeiolijcD  per 'y;  1^'°'"^- 
Curiam  upon  a  Special  Dcuoicr,  auB  ovDcceQ  pec  Curia.a,  Cljat  tijiiS  ^"[y'^""^-; 
njouro  not  uc  fpohe  to  a\io  more  out  onip  to  tijc  paaus  ui  tljc  Cale.   tint  raa"jrir 

void  is  ge-if"- 
ral,  and  notlimited  to  any  Place,  and  fo  it  is  rerol.'ed  ;  E  ^.  Fit/.Ii.  Tr'al  And  To  ir  was  aljudged  21  Jac. 
C.  B.  in  the  Cafe  ot  Woodley  and  the  Biflioiiof  Exon  and  Man  waring,  jo.  1  5S,  i  59.  S  (%-In  thi'sCale,  il  e 
Dcm,  before  Confecration  dr  Contirniation,  obtained  a  Patent,  wit:i  large  Words  of  Non  Obstante  rc.i- 
nere  valeat  in  Commendam  the  faid  Deanry  &c.  and  afcrwards  he«ascho(en  Bifliop  o'^B'ilto!,  and  then 
alio  before  Inft.il lation  he  obtained  anotlier  Patent  wuh  a  more  ample  Dil'penfation  of  retaiiuiigthe  laid 
Deanry  in  Commendam.  It  was  agreed  by  all.  That  the  Churcii  or  Deanry  &c  in  England  (hall  be  void 
by  Cellicn,  if  the  Parfon  or  Dean  &c.  be  made  a  Bi.liop  in  Ireland  ;  Koi-  the  Ca.-mn  Law  in  that  Point  is 
one  thro'  all  the  World ;  Alio  Ireland  is  governed  by  the  Laws  of  England,  and  is  now  as  Part  of  E  nu-- 
land  by  Subordinary.  1  he  Judges  argiJedtwo  Days,  and  refolved  that  ail  Commend.ims  are  Difpenfa- 
tions,  a-d  that  CtiTion  commenced  by  the  Canon  and  Council  of  Later.in  ;  .Secondly,  that  the  Kin"-miv 
difpcnte  witli  that  Canon,  11  H.  7.  12.  For  the  Pope  might,  and  now  by  tlic  Statute  21  H  S.  that  Power 
is  given  to  the  King  Cumulative,  by  way  of  Expohtion  Wteris,  and  not  by  Introdufiion  Novi  Juris, 
and  by  th.it  Statute  a  coiicurrcnt  Power  i.s  givfti  to  the  Archbifliop  of  Canterbury ,  a'ld  mav  be  gra-ncd  by 
the  King,  or  by  the  Archbifliop  Sec.  5dly,  That  tliat  Difpcnfation,  after  Election  to  the  firif  Billiop- 
rick and  befire  Confecration  Sec.  and  alio  the  Dif.'e  liation  after  £le:tio-i  to  the  fecond  BHi  )prick 
and  bctore  the  Confirmation,  is  good  enough  in  both  Cafes,  and  he  remains  a  Good  Dean,  to  confirm  &j. 
Andafterw.irds  the  ludgmenc  in  the  Cafe,  being  an  Action  ofTrclpals,  was  given  accordint^ly.  Nov. 
95,  94,  95.  H.  22.   Jac  B.  K.  Evans  andKiifin.  v.Afcuith Latch.  233.  S.  C. — Palm.  45S.  S!  C. 

9.  Jf  an  Incumbent  i)c(Q  Utii  ctcatetJ  TA>\)d^,  tl)i'3  l}XO  ma5c  a  mi 

fiance  bv  the  Common  Law.,  1 1  {).  4.  38.  6o.  77.    29  (£♦  3.  44.  It  lua^ 

fain  tljat  IjcretoforeiuijcntljcConiiituuons  luercmaHe,  bpitiyici)  Plu- 
rality luas  ouiied,  tlic  luijidj  conditcitions  canimeiiccti  ftoui  Eome, 
vet  trom  tiwt'^ime  it  mass  CauiiD  of  Doioancem  X'^anco  tleijis. 

10.  26.  €.  3-  55-  b.  It  is  fatn,    Cljat  tljc  Pope  J.  made  Conlticution 
that  a  Parlon  Inall  not  have  but  One  Bcnehce  with  Cure&c. 

11.  In  a  Quare  Impedit,  for  hindring  to  prefent  to  the  Parillr  Church  s.  C  Sho\r. 
of  St.  James,  the  Pffintiif  declared,  That  St.  Martin's  being  a  large  Pa-  4M  ^^  A^^r 
rilh  by  a  Statute  made   1  Jac.  2.  the  Panjb  of  St.  James's  ivas  to  (^e  taken  ^  +''■'  * 
cut  of  it,  and  made  a  Partjh  of  itj'elf  with  Cure,  and  Dr.  I'enmfon^    then  ^  '" 


, ^.... .,,  _- ,...„ 'i.id'j  Bijhop  of 

Lincoln^  lb  that  it  belonged  to  the  King  to  prefent  by  his  Prerogative; 
To  this  Declaration  the  Bilhop  ol  London  demurred,  and  Dr.  Birch 
pleaded  the  Statute  2^  H.  S.  And  that  by  \irtue  therco!,  the  Archbilhop 

of 


37'^  Prcfc  ntation. 


oi  Cunterbury  granted  a  DifpenfHtion  toDr.Tennilbn,  to  hold  this  Church 
in  Coninundam^  which  the  King  confirmed  fron  the  22d  c.f  Ocioier  till 
thcjiijt  of  July  joUvwiiig  &c.  To  this  Plea  the  Attorney-General  demurred. 
1  fie  Court  held,  That  the  King's  Turn  is  not  lerved  by  *  confirming 
*  Fonl.at  this  Conur.endam,  becaule  the  Difpenfkion  was  only  to  lave  thcAvoi- 
r'rf  h\""^  dance,  and  the  Confirmation  continued  the  Poiieflion,  but  transferred  no 
camm  b<f  ^'gh'^i  ^^  ^^"'^s  objected,  That  f  no  Body  can  lay  the  King  Ihall  prelent, 
properly  iliid  when  the  Atl  of  Parliament  fays  otherwiie.  And  that  this  was  theretbre 
to  be  Com-  a  Caie  exempt  from  the  Prerogative;  but  the  Court  held  that  this  A61  did 
nicnded  to  ^ot  intertere  with  the  Prerogati\-e,  becaule  a  Nt-jo  Jdw-jcfon  tiitijf  be  fabjcti 
tr'iic'  //  /L  ^°  ^^^^  Prerogative  as  an  Old  on-e  is--,  like  an  Eltate-tail  created  by  Att  of 
Imt<mhn:t  Parliament,  'tis  fubjeft  to  fuch  Ears  as  other  Eftates-tail,  and  the  Wife 
haddieA^u-  Ihall  be  endowcd  ol  ir.  Then  it  was  objected^  That  this  New  Church,  as 
'"'?  ''^  '^],""  to  Dr.  Tennilcn,  wa!<  a  Kind  ol  Donative,  he  coming  in  without  Inltitutiou 
^ni'ch'T'nk  de  ''^^^^  Induction  i  And  that  by  the  very  VV^ords  of  the  Statute,  the  prefen- 
Kiti?  Kiirbt  table  Right  doth  not  coinmence  till  after  him  ;  And  that  in  ||  Caie  of  a 
hail  icji  his  JJo/iittive^  the  Promotion  ot  the  Incumbent  makcs  noCclfion.  But  Curia 
Jit.'eiopre-  Contra;  P"or  in  point  ofEllate  the  Right  ol  Prefentation  commences  by 
Cm'  4*Mod  ^'-"^  palhng  of  the  Aft  Immediately,  but  in  point  of  Interell,  not  till  the 
4i2.  s.  C—  Avoidance.  2  Salk.  540.  Mich.  7  W.  3.  B.  R.  The  King  v.  Bifhop  of  Lon- 
Show.  4.S9.  don  and  Dr.  Eirch. 
S.  P. hv 
Eyre  J.  and  fays  this  appears  by  g^arkljurii'^  CafC  D.  2z8.  b.  &:  13  3 .  a.  &  2  Roll.  94.4. 

I  H(;]t  Ch  ('  feemed at  tlie  firlt  to  incline  to  this,  bur  afterwards  it  wis  refolved,  That  this  Aft  cw// 
dircl'ed  the  JJell od,  and  ^itrr.s  of  frcfintins^  hetzieen  the  Patrons,  and  not  to  exclude  the  Kind;  of  his  Prercga- 

iize.  ^Lev.  382.  S.C.  And  notnithlhmding  this  Objettion,  the  Right   ot   Patronap,e  even  in   this 

Cafe  is  veiled  immediately  ;  It  is  like  a  lleverlion  for  Life  granted  Cu.a  acciderit  per  Mortem  of  the 
Tenant  for  Life,  which  vcfts  an  laterelt  immediately,  though  to  com.iicnce  in  Pofleiiion  in  Future. 
PerCur.  4Mid  214  S.C. 

II  The  Court  laid,  That  this  mud  be  admitted  to  be  Law  ;  But  if  an  Ivntnibent  of  a  Potiafive  is  made 
RecJor  hy  Jcl  of  Parliament,  as  Dr.  Tennifon  was  in  this  Caie,  then  the  King  has  a  Prerogative  to  prc- 
fc:it  upon  the  Promotion  of  fuch  Rector.  4  Mod.  215.  per  Cur.  S.  C. 


By  the  In 

flitution  ,11  d 


(L.  b)  Talh?g  of  faofid  Bcmjicc. 


Induct i»n  to  I.   T  JF  iin  Incumbent  takC0  a  2tl  XCUCfiCC,  tIjC  fint  10  tJOltl  Ipio  lacto 

tie  2d  Bene-      \  iDiti.out  p.up  Dcpvi^atton,  to  tijat  tije  patro'i  nui?'  prcfcnt  24 

hce,thc  hrit  ^^  ^^  ^^^  ^iOjUnaCD.  26.  C  3*  ^S-  0.  ^Q.  4-  tivlhvid.  15,  u»  Refoiuco» 

'^^^Z/C^  D/Ecports,  omnicnnam  69.  si.  Doctor  anti  ^tuQent,  126.  b.  29 
4:  Foi.  361.  (i:;^  3»  44,  Co.  4»  J^iKh'  79*  26  c  3.  i*  9jS-  i*  ^^^  *  Cpobart's 
'-^''^'^■^^  RcportiJ  224,  Contra  1 1  J),  4.  ^1*  b>  66.  t  ar*  14  Car.  15,  R,  bc= 
k"  ^'a^  q  1  tiuectt  tijc  Kui^  and  Bald  ck^  Siloititmcn  pcv  CiirKini  tti  iBiit  of  error 
as'weH  a' if  upon  fuclj  juBJjmntt  III  OSank  upon  Demurrer*  lutratur  pUU  13 

it  was  above  Cftr*   KOt*  1 259. 

that  Value,  _  _,,  , 

Per  Jone-  J.  |o.  404,  405.  the  King  v.  Baldcock  *-  Dr.  Watfon    fays.  If  one   of  our  Clergy  oe 

created  a  Billiop  Suff.agan  of  England,  not  any  (as  he  conceives)  of  the  Preferments  he  had  before,  do 
become  void  ;  but  on  the  other  hand,  if  heexercifc  the  Office  of  a  Suffragan  by  Commiffion  he  is  there- 
by qualified  to  hold  at  one  Time  two  Benefices  with  Cure,  and  cites  Stat.  26  H.  S.  cap.  1 4.  However,  his 
Benerice  with  Cure,  taken  after  he  is  SutiVagan,  may  (unlefs  Difpenfation  prevent)  void  any  Dignity  he 
had  before.  Watf  Comp.  Inc.  Svo.  43.  cap.  5.  — *  Hob.  i  58.  166. 

2.  At  Common  Law,  ff  ait  31ttcumlicnt  Ijati  taI^cll  a  25  IBciicficc, 
U)itl3  cure  iicittjcr  tijc  fira  nor  fccontJ  Ijao  been  ijoin.  Co*  4*  HoUmd. 

IS*  b* 

PluraWcies         '^^  But  by  the  (ScilCfal  Council  of  Lateran,  fjClD  Anno  Domini  12 r;. 

r'fv^'i^   it  iDas  ornamcu,  Cbat  if  a  CJJan  taUco  niters  'Benefice?  with  Cure 

/irSi/V  of  8)01110,  lijC  firft  ajat!  be  ^Om,  if  he  has  not  the  Diipenlation  of  the 

Lateran,  PopC.       CO.   4*    Vlgh'  79- 

Kcid  under  _. 

Pooe 


Predntation. 


373 


Pojje  Alcx.inilcrthc  Third  at  Rome,  In  PalarioLateranenfi  iSidcm  inccptiiin  in  Anno  1 1  :o  &  continua- 
timiuHnic  Annum  11-9  whijh  was  Anno  26  H.  2.  Arg.  Mo  4;6  in  thu  Laic  of  Robins  v.  Gerard  — 
4Kcp  -9.inS.  C.by  Name  of  Digby's  Cafe,  it  is  laid  by  the  Reporter  to  iiave  been  under  Innoccntthc 

Thn-il. Knij^hton's  Clironicle  Inter  decern  Scriptores,  pag.  2412.  1.  19,  20.  fays  this  Council  was 

held  under  Innocent  the  Tlurd,  in  Anno  1215. 2  Inli  ^oi.iiiaitions  it  m  the  Year  11 79. 

4.  'W\)\^i^^O   rCCttCtl  inlintuaotl,  fOl.  Sr.  in    tIjC  Confticutions  of 

Peckh.iin,  luDcrelip  tl3C  |i)i'amn£!ni  ^pnoti  tm  Conffitution  of  tf)C 
(^rntxoA  Council  10  C0nficnicti,  ano  tDc  Caiiftitutions  oiOthobon  m 
inrojoun,  tDattbc  laft  ouoyt  to  tieVioiD,  13  repcuied  113  too  Darn  am 
ftnct,  Cu.  4»  A^'^J'  79- 

5.  27  €♦  I-  KOt.  li^at  S|3.  i6.  in  appCl?atiOinbU0.    Papa  difpenfa- 
vit  cum  J.  de  Liingeton  CaiKcll.irio  lupcr  Pluralititte  ijencHcioruai  fuo- 

rum  cum  Curis  uu  Ciini,  ({ive  QhxiiKU  f  tiltertusi  HifpcnCaDit  quoQ  mia 
alia T^ci'.cftcta  cumpnoruiuy  iccipa-c  $  rcnna*c  pofiit  li  Regi  pk- 
cueiic,  f  tiUiM  Caiicdlitno  conucinentci*  tiffci-antiic  $  Hcc  i}cncpla= 
cituni  fui'in  IntinuU  pic  patentee  iitcra^. 

6.  3! 

tfje  firf! 

lent  belb 

Stranger ;  lor  If  i)e  lue  tot  Citiics  ajiiinfl  a  paridjioncr,  it  m  not  ^■'■e'Kh— 
anp  Ooar  npinlt  ijtm  tijar  tj£  1310  mmi  a  ft^ouu  l^nicaa\  Cr.  13.  ^-p-  cr"X\ 
Car*  05*  E.  faiB  I33)  Jnince  'iDni-Kiei),  tfjnt  3'uiTicc[  r-eibcrtcn  in  Im  UtrT — 
^rcituicnt  of  m  Cafe  or  -/>///?  faiD,  tOat  to  it  loajj  aDiUDECH*  in.  s vo!  9'^' 

7*  Ip*  II-  €♦  3-  'B,  K*  EOt>  21.  CijC  T3injOpoFDur{)amprerented  vVatfComD 
B.  to  the  Prehcnd  of  W.  of  tljC  CijUtCl)  tit  ®t.  CiilDu'UJ,  :ind  aiter  Inc.  Svo.  ,0, 
prCfcntCl!  tijC  fame  B.  to  the  Deanry  ol   the  i-imc  Church,     Ct  P'*0  CO  "• '^■'■P- 2 

nuon  s^on  Uccat  aiiaii  muiEi  jacie'oennas  niuna  $  caBrme£ticrui'"f'u5'^>y 

C0!,lC;\iaU  pOffllJCrC,   ['tUia^J  l^lfDliDgeO  QUOJ)  Rex  recuperet  Pritlen-  the  Dr  favs 
tationem  ad  hccleliani  de  ^\  .  prieditta.  it  appears,' 

Church,  void  by  Cefflon  upon  Accountof  the  Canm,  be  of  the  Gift  of  the  Bifhop,  and  within  lijs  Di- 
ocefs,  vi  may  p;o  in  Lapfe  by  the  Bifhop's  Neglect  to  collate,  tho'  no  Deprivation  be  made  of  the 
Incumbent,  or  Notice  given  of  the  Avoidance. 


5.  Quare  Impedit  by  the  King, mdcoa^ited  by  the  Pojfcffiofis  of  the  Bip-  But  it  was 
cp  of  E.  (jivho  ivas  Patron  of  the  Benefice)  being  hi  his  Hands  and  that  A.  fa'd  clfe- 
the  Clerk  and  Incumbent  accepted  another  Benefice^  by   which  this   Bene-  where,  that 
fice  is  void,  and  remained  void  quoufque  &c,  and  it  was  admitted  lor  ^hlleT'^'*" 
a  clear  Yoidance.     Br.  Quare  Impedit,  pi.  98.  cites  24  E.  3.  32.  ,tf'^  J'"/"' 

r  T-  Ililhop  or  the 

Metropolitan,  and  that  it  is  no  I oiAame  in  FaB  till  he  be  de^riieH  ly  tie  Spritual  Law,  and  it  is  01  ]y  a 
Voidai-.ce  in  Law  before,  ibid,  cites  1 1  H.  4.   57.   59.  '  ' 

9.  If  a  Man  prefents  one^  who  has  a  Benefice^  and  is  admitted  and  indti[f^ 
ed.,  this  is  a  Celfion  without  more  ;  But  in  .^tiare  Impedit  the  Court  /bail 
not  take  thereof  N^ot ice  before  it  be  certified^  becaufe  it  is  a  Thing  ipiri- 
tualj  Per  Brown  Serjeant.  Br.  Quare  Impedit,  pi.  87.  cites   14  H.  8. 

i6.  17. 

10.  "N^^herethe  King  prefents  by  reafon  of  2.  Plurality  and  want  of  Qua- 
lification, and  Verdict  is  found  tor  him ;  inaj  muchas  the  firlt  Benefice  is 
abfolutely  void  by  the  ta.king  a  2d.  the  Vcrditi  ihall  be,  tliac  xhQ 
Church  was  full  of  the  King's  Prefeniment  Modo  &  Forma,  as  was  al- 
ledg'd,  and  now  is  void  ■,  For  Crook  fays,  that  il  it  be  found  that  the 
Church  is  lull  of  the  Defendant  by  thePrefenta\enc  of  the  King,  that  it 
Ihall  be  intended,  that  it  was  void  by  the  2d.  Benefice,  and  that  the 
King  prefented  him  anew.  Lite.  R.  i.  Hill.  2  Car,  C.  B.  the  King  v. 
Frank  well, 

5  B  (L.  b.  2) 


374-  Prefentation. 


(L.  b.  2)  Avoidance,   by  not  rendt?jg  the  Artkks  &c. 

APreientec  I-  ^3  ^/'^-  12.  T^Nafts,  thzt  every  Perfon  hereafter  to  be  admHted  to 
read  Che  Ar-  \   3-  L^  a Emcjice  with  Cure  jh all ^  *'  withm    two   Months 

lii  "V  wl  "^T  ^\'ut  r^  ^'^'"^^^'  r^^  '''"  ^^^"-^^^  °f  ^^h^on  m  the  Church 

I'o  -Vi- "  Zf'"^  f  ^^'^  ""'  ?r'  '"  Cmn.wn-pray.r  tune,  zvtth  Declaration   of  his 

ur.iothanfo  ^f"t  thcminto    and  bc  admitted  lo  adunnijlcr  the  Sacraments  -xtthin  on" 

favjorth^s  fear  after  hts  faid  Induilion,  (if  he  be  nut  admitted  before)  w  Pam  umn 

tU)  agrn  evcry  f  uch  Dejault  to  be  deprived  ipfo  fado.  ' 

^wJ(;.,/.^f'-7-.  ^''^^^';#o^",  i'>Jhtutions,  and   Induams  to   Benefices,  and  all 

It  was- ad-  Tolerations,  Dijpmfations,  Jf)uali/ications,  vnd  Licences  -ic hut: oever  to  th^ 

jiirii^.-d,  contrary  hereuj^  Jhall  be  void  in  Law.  ' 

Thjt  this 

v;a.s  not  luch  unfeigned  Aflcnt  as  the  Statute  intended  ,  but  that  it  ought  to  be  abfolute  and  without 
Condition.     Cro.Ji   25Z    pl-  19-  M>ch.  5;  &  54  Eliz.  B  R.  Smith  v   Gierke  '^  ana  without 

*  Upon  a  Trial  at  bar  u,  Quare  Impedit,  the  Phint .ft" proved,  that  he  read  the  Articles  «*.„  ,he  ,th 
t    T    r'  'f'f-''/f'^'^'^'"''^'^^5Se?U',jer-,   This   was  ruled  inCufficient,  becaufe  not  with  n  two 
Months  after  the  Induction,  computing   iS  Days  io  the   Month.     Lev.    loi     Pafch    ikcZTr    u 
Brown  V.  Speice.  '      '         •  ''■  "•  -K- 

In  Quarc  Im;edit,  the  Plainrifi" proved,  that  he  read  them  in   a   Perch  of  a   Chatd  of  Fi,r,  o,-;t    .z. 
/.:..  r.r,p  .  ul.i.  a  Month  after  h.  Induaion,  the  Key.  of  the  Chapel  beuig  daaS^f  hTm  tt  fe' 
Defendant    and  this  was  adn:med  by  the  Court  to  be  a  Efficient  Reading  Sf  the  Articles  whhin  t  e 
■Statute.     Lev.  loi    brown  v.  Spence.  "numtne 

]nT.-.cdiately  ujon  Not  J<eadirg  the  Articles  according  to  the  Statute,  the  Incumbent  is  deprived  info 
facto,  and  ;I>e  Patron  may  prclcnt  upon  uch  Deprivation  prcfently   if  he  will,  and  his  Clerk  ou?ht  m 

be  admitted  and  inftuutcd.  V.ugh.  i  52,  m  Calc  of  Shute  v.  Hi-den. [But  no  Lao'-^il  ""g'^' to 

till  alter  Koticc  to  the  Patron,  i ;  El.  1 2  S  3.]  "  '■  ''^'^  *"''  '''"'^'•"e 

A  Man  h.Kf  a  Benefice  Compatible    and  without  fufScient  Difper.fation  took  another  Benefice  Com 
paf.ble,  but  did  mt/Mhjcnhe  the  Articles  as  required  by  thi.  Statute,  and  yet  he  ^-.u  adrmttedi^tifffT 
,,„d  M,.lhd  to  Ac  hcond  Benefice,  [and  died  ]  And  upon  Iflue  whether  the   Cinirch   v^dcd  ot  M      ' 
tern  &c.  a  fpccial  \  erdict  fourd  as  above.     And  the  Opinion  of  the  Court  was    That   the  fi  -If  R       fi  ~ 
voided  yer  Mortem;  and  not  by  the  taking  the  2d.  Benefice  ;  For  he  never  was  lawful   Par'fon  thereot 

bv   realon  of  this  Statute.  D.  377,  b.  pi.  51.  Mich.  2;  Sc  2'  Eli?     ^non S  C     ■'    d  V      ^  • 

in  Cafe  of  Shute  v.  Higden.- In  futh  Cafe  the  Admiffion  and  Inrtitution  are  voidj^ib  that  he  nMr 

««J  feK^??/)ew/ f/f>-f,  and  conlcquently  cannot  be  deprived.     And   6^    nj    t-^a  Trln  -.  ua     ■    ,•    ■     c 

the  CLu.en  v.  Hifhop  of  Lincoln   and  Cock, Rclblved  by  all  tlie'fulhces    abfrtel^n  nm    Tl 

Cafe  of  the  P.-elentee\s  not  Reading  the  Articles,  the  Church  beconies  void  Jre'^ntly  a^nd  he  -  '" 
votary  Depnv.U!^,;  for  otherwilc  the  Statute  would  be  defrauded  at  tlie  Pleasure  of  the  Ordi^'' 
If  he  wou.d rot  deprive.  Cro.  £  679   6S0.  Trin   4,  Eli^.  B.  R    hak.r  v.   Brent  aM  Robinfon  ri^' 

The  Church  in  fuch  Cafe   voids  prelently,    without  any  Sentence  declar-ttorv  •  W^^  ^l,.   t. 

vides,  that  he  fhall  be  ipfo  facto  Seprivei,'  and  the  A^.^R^on"  Inlfitub      a  d'  I  id  v.ctn  armefT" 
void  in  Law  ;  A-d  Vo.dance  by  A.t  of  Parliament  need  not  have   any    Se^-epce   dec  a"  arort     Tu    ' 
b.  Trin.  44 Eli-i.  B.  R.  Green  V.  Bakrr  Seal.  '       "^ '^'•^^   '^'-^'a.' atory.     6  Rep. 

z.  In  Debt  &c.  the  PlaintifT count?,  that  H.  Dean  of  Lincohi  by  In- 
denture dated  24  July,  deir.iledto  the  Deiendunt  the   P.eftory  oVm 
^u    ^ho  therein  covenanted  to  hnd  a  fufficient  Priell   to  lerve   in  the 
Church  ot  AL  to  be  approved  oiby  the  Dean  and  his  Succellor^'  ind  to 
pay  him  40  Marks  per  Annum  at  the  Icall^  and  then  fets  forth  the  Sti 
tute  29  Ur.  2.  tor  perpetuatmg  Augmentations  to  poor  Vicarages    which 
enafe,  That  every  Augmentation  made  payable  to  any  Vicar,  Curate    'sc 
fl^ud  continue  payable  to  than;  and  that  tloty  might  recovr  the  fd^iuU 
DiJheJsorAltmiofDebt,  then  he  fays,  that  5  Juiy,  ^2Ctr  2    bv  thi 
Approbation  ot  the  Dean  at  the  Nomination  of  the  Defendam,  andvv   h 
the  Licence  o    the  BilLop  he  was  admitted  ;  and  from  that  t  me  to  this 
was  Curate  ot  the  Church  of  AL   and  for  40'  Marks  Penh:^  Xe  tor  a 
^  ear,  he  brings  this  Adion.     The  Delendant  pleaded  in  Bar,  and  con- 
icffedthe  Leale  and  Covenants,  but  iays,  that^he   Plaincih  wa   noml 
nated  |:c     5K0V.    1677,  and  had  Poll  el  Ron ,    but  further  flysZt 
the  Ml  ojConJcrmity  13  Car    2.  by  which  it  is  enafted,  ThatJZlZt 
Jicrs  &c  Pall,  withm  fwo  Months  after  the  acliud  Poljeffiln  of  thr  vZ- 
age  or  Curacy    declare  their  yi^nt  and  Confent  to  all  iVfitte^s^in Ihe  Ck 
01  Common  Prajcr,  and  npcn  Negktl  thereof JljalJ  be  ipfo  fa  Jo  d^^d\ 


29 


(i.nd 


Prefentation.  '^-7/- 


and  that  the  Patron  may  prefent  Sc  as  if  ths  biaimbent  was  dead  ;  And 
rhiic  the  Plaintiifdid  not  within  two  Months  after  his  Podeiiion  declare 
his  Adcnt,  and  that  at  no  time  alter  the  ^ch  ofXovember  the  Defen- 
dant did  nominate  the  Plaintiff  to  the  Dean  to  be  Curate  dec.  the  Plain- 
tilfin  his  Replication  conleli'ed  the  Nomination  5  Novemb.  and  that  he 
continued  in  PoHeflion  till  the  5th  of  July  lollowing,  and  being  in 
Polielfion  by  the  Conlent  and  Permilfion  oi  the  Defendant,  and  by  the 
Approbation  of  the  Dean  and  Licence  of  the  Bilhop,  he,  within  two 
Ajonths  after  the  laid  5  July,  declared  his  Aflent  and  Confent  accord- 
ing to  the  Statute  The  Delcndant  demurred  ;  the  Court  agreed,  that 
fuch  Stipendiary  may  be  within  the  Aft  of  Contbrmity,  tho'  that  is 
that  the  Patron  Ihall  prefent  as  if  he  were  dead,  and  here  was  no  Pre- 
fentation requisite  in  this  Cafe,  hut  only  a  Nomination.  And  that  tho' 
he  was  ipfo  laclo  deprived  for  his  Negletl:  in  not  declaring  hisAllent 
within  two  Months  after  his  firll  Nomination  and  Polielfion,  yet  this 
Statute  not  difabling  him  from  being  nominated  De  Novo,  and  he  con- 
tinuing always  in  Polfeliion,  and  performing  his  OtHce  by  the  Allow- 
ance of  the  Defendant  and  the  J3(;an  till  the  jth  of  Julys  this  amounts 
to  a  new  Nomination,  and  therefore  his  declaring  his  Alient  within 
two  Months  after  the  jch  of  July,  makes  him  a  Curate  within  the  Sta- 
tute, and  enables  him  to  bring  Action,  and  Judgment  was  given  for  him 
by  the  whole  Court.  3  Lev.  82.  Mich.  34  Carr^.  C.  B.   Carver  v.  Pink- 


nev 


(M.  b)  *  Di-prhntion.     [And  of  Caz>cats    to  prevent 

Inftitution  &c.1  *  Dcpiivan- 

■^  on  is  a  Dil- 

l.TJftljC  Encumbent  be  deprived,  tljC  CfjUtC!)  KS  IJOlC  l3})  It*  iiW^'^flt,. 
4-  6q.  b*  77.  bent  of  his 

.  Dignitv  or 

Wmsltry,  when  fufficient  Caureagainft  Iiim  is  conceived  and  proved  ;  foi-  by  this,  he  iol'es  the  Name  of 
his  firft  Dignity,  and  herein  two  Manner  of  Ways,  either  by  a  Particular 'Sentence  in  the  Spiritual 
Court,  or  by  a  General  Sentence  by  fome  pofitive  or  Statute  Law  of  this  Realm,  ift.  Deprivation  is  m 
the  Spiritur.l  Court  for  that,  that  it  is  grounded  upon  fome  Defect  in  the  Party  deprived,  although  it 
be  by  Act  of  Law,  yet  it  is  deemed  as  the  Act  of  the  Party  himfelf  The  CauVes  of  Deprivation"  by 
Cenfurein  the  Spiritual  Court,  are  to  be  referred  to  the  Common  Law.  ii\.  If^nnt  of  C^facity.  idly, 
*  Contempt.  _  5dly  f  Crime.  As  concerning  the  firft,  although  by  the  Common  Law,  if  a  Lay  I'erfin  be 
prefented,  inftituted  and  inducted  to  an  efpecial  Benefice,  which  Curate  is  altogether  uncapable  of  the 
fame,  yet  the  Church  is  not  therefore  to  be  faid  void  as  if  no  Presentation  had  been,  but  it  is  Hill  full 
of  an  Incumber.t  de  faBo  tuet  71011  de  Jure,  until  hy  Sentence  declar.itory,  for  his  Want  of  Capacity,  the 
Church  be  adjut^ged  void,  and  upon  this  no  Lapfe  fhall  incur  againft  the  Lay  Patron,  without  Notice 
(of  fuch  Incapacity  and  Sentence  of  Deprivation  thereupon;  to  him  given.  Dod.  of  Adv.  -5,  T4. 
Lect.  14. 

♦  Contempt  may  lilcewife  be  a  Caufe  of  Deprivation,  as  if  the  Parfon  or  other  Incumbent  be  ?xccnt- 
munk.ue,  andhc'.h  i-f«;awj  in  liis  OblHnacy  for  the  Spaccof  40  Dnys,  he  is  for  this  deprivablc  of  his 
Benefice,  and  yet  tlie  Church  is  not  void  in  Fact,  without  Sentence  of  Depnv.ition  given  againft  him  ; 
and  if  before  fuch  Deprivation  the  King,  as  flipreme  Ordinary  and  the  Head  of  the  Church,  would  <;ive' 
a  Difpenfation  to  the  Incumbent,  that  for  all  the  Sentence  of  Deprivation  for  his  Contempt  had,  he  ftiall 
hold  his  Benefice,  fuch  Diipenfation  were  void  [good,  Ql^^rc]  and  fliould  reftrain  the  Patron  from  his  Pre- 
fentation accrued  to  him  by  Means  of  fuch  Deprivation  after  enfuipg    Dod.  of  Adv.  76.  Lect.  14 

t  The  qd  Caufe  is  Crime,  within  which  may  be  eomprclicndcd  Dil.,pid.,tiin,  or  Spoil  of  the 
Church  Benefice,  once  in  our  Books  worthy  of  Depriv.ition,  likcv-ife  .*-<■/;/«  or  Herefy;  for  the 
which,  or  if  for  Ton  e  other  Caufes  the  Incumbent  were  deprived  in  ancient  Time  inthe  Court  of  Rom.e 
upon  fuch  Deprivation  coming  in  Queftion  in  our  Law,  the  IlTuc  fhould  be  upon  the  Avoidance,  and 
it  fhould  be  tried  where  the  Church  or  Dignity  is.  Dod.  of  Adv.  76. 

[So  that]  ift  our  Law  adjudges  not  the  Church  actually  loid,  without  a  Senter.ce  of  Deprivation 
as  has  been  before  proved.  2dly,  That  though  fuch  .SfK/f^w  of  Deprivation  be  merely  c-towpj;i/,  yet 
the  Dignity  is  void,  a'd  x\\c  Sentence  retuains  inh\s  Force  la.tilhha  relecifed.  qdly,  and  laftly,  If  the 
Party  deprived  v/hhin  Tim.e  require  by  this  Law  an  *  Jppea/,  (upon  luch  Sentence  of  Depriv.ition 
given  againft  him  at  the  Court  of  the  high  Jurifdiction)  iiich  is  the  Nature  of  an  Appeal  that  it  Iddi 
{the  Sentence  upon  w  hich  it  wos  firft  hvouyhiMn  Suipence  ;  bccaufe  in  the  Common  Law  it  is  faid  to 
have  Elfectum  fulpcnlum  prioris  Pronuntiati  ;  and  therefore  if  it  be  brought  upon  Deprivation,  it  voids 
the  Vigour  thereof,  and  revives  the  former  Dignity;  for  Inch  Church  fliall  not  be  void  unti'l  the  firft 
Sentence  of  DeprivHtion  chance  to  be  afErmed  in  the  Appeal,  and  thus  much  of  Deprivations  in  the 
Spiritual  Court  lliaU  fuffice  at  this  Time.  Dod.  of  Adv.  -,6,  77.  Lect.  14, ♦  The  Ciiurch  is  not 

•S,itd 


37 


76  Pixfentation. 


'vcii'.*^tri':i>tf;f!-eJnetxl\  for  it  the  Sciucucc  be  vcvtM-red,  he  fliall  not  be  inrtitutcd  and  induftcd  again, 
Br  (kpofino'.^,  pi".  15  cites  z  R.  z    a.  d  Fi/.h.  Quare  Impedit  145. 

If  a  P.rfon        2.  Jf  aU  [JUCUmDCnt  be  deprivable,  pct  tijC  CJjUrCl)  f6  UCt  1)0(5  l3C= 

takes  ii:vcr;d  fotc  Dcpn^jiittoiu  Coiuva.  1?  <i£»  3-  59-  L". 

Benefices  In-                                                .            .    .         ,  ^ 

compatible  w  ithout  T  icence  or  Plurality,  this  is  a  I'oidance  in  Laii,  but  mt  in  Faff  ;  For  he  ought  frfi 
to  ic  iiepiived  by  the  Bifliop,  and  tlien  the  Pan  on  n\n'  prcfcnt,  and  the  Patrai  may  J 111:  fir  tie  De frit  alien. 
Br.  Quare  Impedit,  pi.  51.  cites  11  H.  4  57.  59  ■ Parfon  took  a  2d  Benefice  above  8  1.  per  An- 
num bv  which  the  firft  was  void.  ^ur.  by  Pntroi's  Cm'fent  ccntiiiucd  Pojfeff.on.  Per  Richard fon  J.  He 
cannot  beany  way  removed  till  Lapfe  incur.  Hei    116.  Fou let's  Cafe. 

If  a  Church       3.  Jf  alter  Caveat  CUtCrCll  fC*  ^  Clerk  be  prefented,  inllituted  and 

Canon  Law,  J)£t  tlje  CljUrCt) 

3nftitution  tiOiQ*  ai)icl>  15 
vithtieRe- QTau  tttuxEU  i/^/>f J  drjd  Ha)ttr^  per  (LuruiUK  auti  Ji'ro{)it!mon 
^'■'>'"'/'"Bi\intctitoitapa^ui£iut(jc  ^rclje^  nfttt  tijc  ^iQucfiou  toaijoiir. 

none"be\r-    tlj?  lUilltUtlOU  tOC  XW  CaU!"C» 

ftitutcd  to 

that  Church  until  he  be  made  Privy  thereunto,  and  the  Bi^i->op  before  that  he  have  Notice  of  the  Caveat. 
itipitmes  an  hciimhevt,  \.hc  Inftitution  is  m.erely  void  in  the  Sj^iriiual  Law  ;  for  the  Kegiller  ought  ta 
notifv  the  Caveat  to  the  Bifliop  ;  and  his  Megligence  in  that  Ik  all  not  prejudice  him  that  entered  the 
Caveat ;  And  if  the  Biiliop  have  Notice  of  the  Caveat,  and  gives  Day  to  him  that  puts  it  in,  and  be- 
fore that  Day  he  inftitutes  an  Incumbent,  this  is  merely  void  ;  for  the  enterinrr  of  a  Caiieat  is  at  a  Stiber- 
fedeas  in  our  Law.  Goldsb.  146  Hill,  4;  Flii.  cites  it  as  _  fa  id   per    Dr.  Amias   in  the    Lord  Zouch's 

Cafe. Inllicution  and  Induction  ftaiid  good,  tho' a  Caveat  was  entered   before;  and  the  Ecclefi- 

aftical  Court  cannot  meddle  with  it    Litt.  R.  165.  Stephens  v.  Crifp. 

A  Caveat  was  entered   \\  ith  the  Bifliop  not  to  admit  without  giving  Notice,  yet  Admidion  is  good  ;  but 
if  he  admits  ore  tiiat  has  ro  Right,  he  is  a  DiHurber,  but  otherwife  the  Caveat  does  nothing  but  only 

tomakethe  Bifliop  careful  what  Perfon  he  admits    1  [5rownl.  119.  Anon A  Caveat  is c/ i-or^e  for 

5  Months,  and  any  one  may  fafely  prefent  after  the  End  of  5  Months,  as  if  no  Caveat  had  been  enter- 
ed ;  Per  Dr.  Talbot.  Cro    |.  464  Hutchings  v.  Glover 

The  King  was  Patron  of  the  Church  ot  D  and  B.  Incumbent.     If",  entered  a  Caveat  in  the  Life-time  of 
B.   then   lying  in  Extremis,  viz.  Caveat  Epifcopus,  _ne  quis  admiitatur   &c.  nifi-Convocatus  the  laid  W, 

B.dics.     J.  S.  a  Stranger  prefented  -U.  uloii-as   inftituted  and  incticfed,   and  li".   prefented   lis  Clerk, 

iiho  K-<!j  likewife  inftituted  and  induced,  ihe  King  likeivifc  prefented^  his  Clerk  a-^o  cr^j  inftituted  and  iyt- 
drcicd,  aid  it  beirg  a  Qiicftion  in  the  Spiritual  Court,  which  of  thofe  Clerks  iiad  the  bcft  Right;- 
Sentence  was  given  there,  that  the  firft  Inftiiutjon  was  void  by  re.i!bn  of  the  Caveat,  and  then  tlie 
Church  being  full  of  the  id.  Incumbent,  the  King  was  put  out  of  PolfeiTion,  and  lb  his  Prefcntment 
void.  But  it  w.isrefolved,  ift-.  That  the  Caveat  was  void,  it  being  ♦  entered  in  rhe  Life-time  of  the  In, 
cumbent.  idly.  That  the  Church  was  full  by  Inftitution  againlt  all  Perlons  but  the  Kirg,  and  theti 
the    Prelentation   by  V\'.  was  void,  by  reafon  of  the   Supcr-inftitution   of  the   Clerk  of  the  Stranger  ; 

and  fo  the  Presentation  of  the  Kir g  ^4 as  good.     Poph.  19;.  HiU.    15  Jac.   B.  R .  Morgan  v.  Icoun. 

*S.  P.  per  Mountague  Ch.  J.  Cro.  J.  464.  Hutchings  v.  Glover. 

4.  If  the  Patron  prefent  one  that  is  merely  a  Layman  'Vjithw  the  Jgi 
cf  25,  and  he  upon  this  be  admitted,  inftituted^  and  indnthc^  end  at- 
terward  a  ^ua.  Imp.  be  brought  ag;ttnlt  the  Patron  and  che  fame  In- 
cumbent, whereoi  Jitdgmeiit  is  given  by  the  Dejault  of  tks  iit^.mnlent^ 
lilkere  indeed  the  Incumbent  was  never  at  any  time  duly  7//»iJ/.o.*/fr2' accord- 
ing to  the  Law,  by  reafon  of  which  Judgment  the  lame  If'.-.-'dxftf  is 
rethovedi  if  upon  this  atterward  the  laid  Incumbent  ^^'>ye«fc;;f(;d.jrlanitory 
be  deprived  in  the  Spiritual  Courtyor  want  of  Capacity  in  Suit  ti^ere,  to'r  .' 
the  Caufe  of  his  Incapacity  exhibited  againll  him,  fuch  Sentence  is  good,, 
and  available  in  the  Common  Law,  although  the  laid  Incumhenc  were 
before  removed  from  his  Benefice  by  the  Judgment  given  againft  him 
in  the  Qua.  Imp.  For  though  fuch  declaratory  Sentence  given  againil  him 
by  the  Spiritual  Law  cannot  remove  him  that  is  removed  already,  yet  it 
fliall  make  this  Incumbent  anjweral'/c  to  the  nest  Incumbent  for  all  the  mean 
Profits  recei\ed  by  him  that  was  the  firll  Incumbent,  from  the  time 
of  his  Induftion.  Yet  if  the  firll  Incumbent  lb  deprived  will  afterward 
bring  a  Writ  of  Deceit  upon  the  Judgment  given  againll  him  in  tho  Quare 
Impedit  by  Default,  becaiife  he  zvas  not  fummcned  us  alorefaid,  iic  Ihall 
have  Judgment  herein,  and  the  fame  Deprivation  had  in  the  n.'.-.ia  Sea- 
Ibn  in  the  Spiritual  Court /j»o  Impediment  thereunto ;  fox  in  the  liidSuitof 

De- 


Prefentadon. 


377 


Deceit  the  Incumbency  (hall  not  be  in  Queftion,  but  only  the  Dillurb- 
ance  ot"  the  Plaintirt"  in  the  Qunre  Impe3it.  Dod.  of  Adv.  74,  75,  76. 
Left.  14. 


(N.  b)    Entry  into  Rdtgion. 
I.  Tif  an  litciiinlient  cntcrjs  Into  i:icI(Q;toit,tI)cChi:ivh  is  a  oid  ttcrcbp.  ^ ,-,  a  ruIc 

II  \),  6.  60.  i)»   76.  _  oftheC:moii 

Law,  that 
Beneficium  non  vacat  per  Religionis  IngrefTum  ante  Piofeffionem,  nifi  tie  Conrenfu  Ingrefli. 

2.  Eut  OtljerlUifC  UJljCrC  tlje  Difpenfition  is  afcer.   COtltta*  n  l|)» 
4.  60. 


(O.  b)  Lapje.      fj-ljat  it  is,  and  the  Commencerpent. 

1.  ^\i\),  3-  €*  I.  'B^Eot,  105.  @tntf»  CJ)C  'Btfljop  of  Co^cntrpanu 

LitCiifiClD   pleaded  a  Coll.iiion    by  Laplc  Auiorirace  Concilii   ilgtlUlll 

tlje  i^riot  of  laiitin  to  tlje  Cljuvclj  of  patinglmuK 

2.  6  e*  I.  Eor,  Piitcntmm  SQcaib*  25-  3i".  a  Ciuare  non  dOmifit 
lip  tf)C  iibbct  of  ^t,  searj)  eboriim  againlt  toc  'Buljoa  of  r^'or^ 

UJlCl)    tl)C   IdllljOp  made  1  itle  Up  lapiC,  f£lIlC£t,  ti)at  tje  colSatcD 

Autoritate  Conciiii  poll  Lapium  lemeltre,  fCUlCtt,  ttlll  iOlC  $C*  ailU 
tijerc  after  in  tIjC  3:llOSUlCnt  it 'S  faiD,  Quia  tempus  iemeltre  Autonca- 
te  Conciiii  non  incipit  \erius  Patronum  nili  a  tempore  Scientise  Mortis 
&c.  (Qusre  what  Council  10  inteuCCtl)  P*  9-  €♦  i-Qe^EOt*  5i-  It 
appf ar0  tljat  lapfC  UiaSi  given  per  Concilmm  Lugdunenfe  polt  tCUV 

pu0  %zx\mxt.   S\\\  a  r©rit  \\\  tOc  time  of  <i5*  z.  citcD  Co.  6.  Cates- 
h  62.  accorBinc;* 
s^iorafton.  libto  4*  foU  241*  lapfus  tentponis  de  Conftitutionezind  2-;. 

Lateranenii.  mtheCom- 

4.  "Bntton.  fot.  225.  3f  tl}e  Clrurclj  remamjs  tJifcaunfdlen  beponn  Trl^^l^^ 

6  Cl^Ontl)^,  ti)Cn  aCCOrlmtn;  to  tlje  Council  ot  Lyons  bPttie  DifCOrD  of  Bigam'iscap. 

tl)C  [Parties  tljc  3injop  flji^.ll  be  \\\  tlje  |'i)!acc  of  a  Coinireiior,  aiiU  fijall  5  takes  no- 
%m  tIjc  Cijurcb  to  anp  Clerk  fabiug  e^efP  onE'0  Eudjt;  X'^iit  lii9af  '^^^/^^^^ 
ux,  ^cincn,  in  ijts  isooit  of  ©tijce,  390.  (an  tijat  tije  Mauuicrip:s  of  J;'.';^;^^^^ 

Breton  have  tOt  OC  Lions  CC  Latt.  luljirl)  10  iCltljOUt  iDCUbt  fOt  5e Bracton  and 
Lateran.  Bnton,as  to 

s-  %tM\\  in  !jt0  i3ooli  of Citl)e0  foL  3 ss.  boin0  tbat  lapfc  Uia0  re-  t^e  councu 

ceived  in    the   Laws  of  England  Irom  the  ^^CllCtal  Council  ot  Lateran  Lo„,^and 
5elO  \\\  ^raiO  25  H.  2.  Llteian"ar.d 

6. 3n  J^otjctien,  foL  326.  tljctc,  among  tIjc  Canons  of  tlje  Council  %s  that 

of  Lateran  held  under  Alexander  the   Third,  l^lHUO  DOUlini    1118.  inFleta  lib.  i. 
Cime  OfHUin:  I).  2.  tljerc  10  fllClj  Canon,  Cum  vero  Pr^bendas,  Eccle-"^;;^^^^^ 
fias,  feu  quslibet  Oi^cia  in  aliqua  Ecclelia  vacate  contigerit,  vel  li  etiam  Lyons ;  He 
Modo  vacant,  non  diu  maneant   in  Snfpenfo,  fed  infra  lex  Menfes  Perlb- adds,  That 
nis,  qui  digneadminiltrare  valcant,  conferantur.  Si  autem  Epifcopus,  ubi  t'^c  Pope  en- 
ad  eum  fpedaverit,  confere  dillulir,  per  Capituluin  ordinetur.  ''T^aw'^i'^  ^° 
7.  Before  the  faid  Council  tijC  PatCOtt  lua0nOt  IlUUtCB  tO  anp  CilllC  iL^PrTicn- 

but  migbt  prcfcnt  at  l)i0  -vleafnrc  iuitijout  ain>  iiapfc*  ©ciucntanonsfvom 
m  lji0  "BooU  of  2Litl3C0  ssv-  3racton.  lib.  4. 241.  princes  and 

Lay  Patrons 
to  piefent  bv  Lapfe  ;  For  that  the  Conftitution  fays,  Qiod  Colhtio  Beneficii  efl:  Res  Spiritualis  Sc  alitcr 
Ctedentcs  effent  Hjercii.'i ;  And  :he  Common  Law  fays,  Th.i:  a  Prefeatation  to  a  Bcicrtce  i^  temporal, 

5  G  aU 


37^  Prcfcntation. 

A  ontlis,  and  v«  .fatter  the  6  Months  the  Pa  on  prStVh.f  .  .'v  '^*^"l"'^'-  i"du!,um  after  6 
ccive  his  Clerk,  .>ot..uh(landing  the  Genera  Cnu  c  I  R,  ^1  'u'J-^'''^'!^"  ^■°='^'^'  '^«  '^"gl^' '"  re- 
Coronas  bv  Lapfethc  Re;;ifter  Uith,  J^ullu^  W,  'of;^,  t  Keoi'  ^'^^r.^^':"  '^^"'-  'o  prell-„t  Jure 
F  egno  AnpH^  ,  fo  as  the'Council  did  not  bn,d  the  R  rh  of  the  K?n  ^"^'""^^^'^^haftenas  obtcnta  in 
L.pfc,  until  itw..6eiindulti,m;  that  is  untH  t  u  t^W  H  ,  K  *^;L"?' ^''"''^ ''''^  ^'""'^^^ 
Linntations  and  Rcarictions,  and  vvi  h  b:nd  r  1  ,  ^  '".^  Ca^rt  ^'  ^°"'^"^"'  '^'  Kcalm/withluch 
and  reafonable  in  Subjefts  Calbs.  for  the  better  Se"ic  yCn^  ai  fl"'  """"•'•  '"'  ^'^'  ''^"^"g^t  juft 
K.n.    vvhoisSupren/us  Dominu's,  lofetrno      is  PrXntio^^^^  the  People ;  IntL 

nouvuhrtand.ng.  -  Ante  Condlinm  Lateranenfe  nuTlumcune  /r  T^  ^  "'  ^">  ^'^'f '^''i  Conftitutioa 
Blfhop  uas  to  prov.de  one  to  fervc  the  Cure  in  th"  ^"a^t^me  Ln''  """■^P!■*''="tantes,  but  the 
vould;  butourLapreisnotacco,d.n^to  the    tLTs  a^id  P  ' r  '  ^'rT  ™'-''^  P''^'="^   ^'l^^n  he 

give  four  Months  to  a  L.y  Pat.-on.  and  t  MonS::^^J^cS^^;'^f'tZ ''-  ^anon. ;  For  they 
any  luprcnie  Title  by  them  to  confer  by  Lapfe  •  And  bv  ,h^  r  "i  -^^  ^  ^^f'  ^^^^  '''"'^'"  ^'^e  King 
ed  per  Dies.  &  non  'per  Menfc.  Anni ;  V,  d  thJrefo  elVfoId    Tl        r^-^'  ^"'"'^^''  '''  "^  ^'^  ^'^"""^^ 


_       ---J  fe 
2  lail.  ;6i. 


Ord.aryis   Hob.  x,^.  Mich,  xojac.  iathebatj^Sv^GloJer'  "  "''  ^''''' 

^'^^^'b!::^^'^^,^^^^^^^^^'  -^'^   -^  '^e  Reafonthat  Rotne  d.dnotclal. 
W.7^  but  a  Truft  or  Ad,.tni'ftrari;;,'  Pe^Hlbart  Ch     "Roh^R^i^r  ■°V"r'^  Mudet^t  — _•  T.  no: "" 


(P.  b)  By  ^-what  Tme  the  Patron   may  prefent  before 
Lapje  lliall  /W^^r. 

watf  coirp.  ^  Rl^  tSc  CoinmDn  Laiu  of  enttliinu  as  wew  riorto     r 
'.«5  cap.  iz.  aim  g)tuQcnt.  1 16  h  '^  "^"^  '^'^^'^^^  ^'^^^^"^  ^-^^^'^  '""'i^-  £>octoc 

cites  &.  C.  * 

2.   l^p 


a 


Prefcntation  379 

2.  "BptljCCainmOnLaUJOf  Scodand  Laid  Pacroni   quadrimertre  Codol  ,h 
feu  quatuor  Ak-nlium,   P^cclclialtici  vcro  fex   Mcnliuin   Sputiuin  IjabCnt  Kcp  245 

fiji  conccmiiu alt  prxfciitautmrn  l-Jcrfonaminoncam ecdcri-e  ua-  "p"  s'2. 
cantt.  ^i^cnc  Ixcryiani  cpaicfiatcui,  10.  tn  Jv  p.  dees 

3.  Butija.  6.  pU  I.  cnu.  7-  pU7»  cap.  102.  pi.  12.  cap.  119-  158  tVrLa 

Concedic  Patrono  Laico  Spatium  fex  Mcnfium,  (ilfra  tiuan  prxfcntiirC  Ciys  we  need 
HCbEt  13)UI)C  Pt>ncCLiltomsol"Norniandv,  tljePatrOllijaSUlCUlLaiCU  notimiunq 

a«3  Ccclcnafricl^  Ija^c  fir  a9oiit!)!j  to  prcfcnt  after  tUc  Ocatl)  of tlic  lail  '"'"  '^^^'^■'- 
jS)oacnoi%  Quoti  Viioc  Cljaptcr  of  patronage.  ^,  70.  S^ncc 

Of  Diftirvportinn  ;  let  it  (iitfice  the  Laietv,  Tliat  it  was  the  Canonill's  Pleafure  to  have  it  To,  for  Rea- 
ons  bed  known  TO  their  own  Intereft;  the  Cominoa  Liw  impardally  levels  them  boch  to  one  and  the 
fame  equal  Standard  of  fix  Months. 


(P.  b  2)    Hozv  the  Six  Mjf/ths  Ihall  be  mh?/d. 

I.   QU  A  R  E  Impedit  againft  the  Eifliop  of  A.  who  juftified  for  Lapfe,  ^«'  ^t'"-"''- 

^  The  Plaincitf  replied,  That  before  the  6  Months  ended,  he  pre-  ;.£gfi,"/' 
fenced  &c.  The  Defendant  rejoined,  That  the  Church  to  which  the  Pre-  chmch'  '^ 
fentment  was,  is  a  Church  with  Cure  of  Souls,  and  the  Parilhioncrs  there  voicied  by 
are  Welchmen,  andlpeakand  underllandno  other  Language  but  Welcr),  deprivation 
and  that  the  Prelentee  could  not  fpeak  or  underitand "the  Welch  Lan- "^'l^'-' ^"" 
guagej  For  which  Cau(i;  he  refufed  him,  and  gave  notice  of  the  Plain-  w^Tad^udt^- 
tiff  of  the  Refufal  and  Caufe  thereof;  and  it  was  agreed  and  reJblvsd  by  ed  that  the  6 
the  whole  Court  that  the  Computation  of  the  6  iMonths  in  fu^h  Cafes,  Months 
onght  not  to  be  according  to  the  Ka/cfidar  ja.na-dvyy  February  &c.  l^at  fe-     °^^'^^^ 
ciiHduw  manerumjiiigiiluntm  Dieriim,  allo'xiug  28  Djj's  to  every  Month.  Le,  acconiimr  to 
31.  Trin,  27  Eli/,.  C.  B.  Albany  v.  theBilliop  of  St.  Afapn.  the  Kalen- 

dar   (ix 
Months,  ard  not  according  to  28  Days  to  a  Month,  And  this  Judgment  was  affirmed  in  Error.  Ren.  61. 

CateiW's  Ca'c.^ Yelv.  loi  S.  C.  by  Name  of  Catesby  v.  the  BilTiip  of  Peterborough. Cro  J. 

141  Trin.  4.  Jac.  S.C, Jenk  282   pi.  2S2.  pi.  8    citesS.C. S.  P.  2  Inll.  ;i^i,  and  favs  it  was 

foreolvcdin  theTimeofE.  2.andinthe  Timeof  H.  8.— Verba  Accipienda  funt  Iccundum  fubjectam  ma- 
teriam,  ard  therefore,  becaufe  this  Computation  of  Months  concern  thofc  of  the  Church,  there  is  great 
Re.ifon  that  the  Computation  fhould  he  .^ccorilini;  to  the  Computation  of  the  Church  ivhah  they  Left  know. 
6  Rep.  62.  Mich.  5  Jac.C.  B.  Catesby 's  Cafe  — S.  P.  2  Inlt.  5151. 


(Q^b)  How  the  6  Months  fhall  be  Reckoned.   From 

<v)hat   Time. 

I  I.  npCmpllSi  €>EniCffre  Autoritate  Concilii  UOtt  tnCfpit  IjerfUS!  liPa-Gcdoiph. 
X     trOnO0  nifi  a  Tempore  fcientige  Mortis  Perfons  i^tljat  IS  tO  tiip  ^^''P  ^4^- 

oftljc  lau  Incumbent.  6.  c.  i.  Rot»  ipatentium  gjcmbrana.  ^j.^""?  "*>■ 
aojimgco  fn  a  i©rit  of  tIjeCimc  of  €♦  2.  citeD  Co.  6.  catesby.  62.  nc= 

COlOlUglp,  anU  fap9  P«^r  legem  &  Confuetudinem  Regni  hatlenus  Uli- 
tatas. 

2.  As  if  tije  Incumbent  dies  beyond  Sea,  tljC  6  {^0ntlj6  fljall  nOt  bcGodolpJi. 

recfeoneu  from  tljeDcatf),  but  from  anoiDlcQge  of  tt)c  Dead)  bp  tljcf  "p^^^^^- 
IPatcon.  6  e.  I.  Rot.  t^itentiim  q3cnibtana  25.  between  tlje  ab*  ^  " 
bflt^t.  ^arp  v£bofimt  anQ  tije  OSifljop  of  l^ociuiclj,  aoiiiiiffcD  m  a 
I  fiiuate  non  aomifit. 


3*  Clje  fie  ^ont!)£i  fljall  not  be  reclioittu  from  tljc  Deatfj  oftljc  laft  ^^t\ 

Incumbent,  but  from  the  Time  that  the  Patron  might  by  Compuca- ^,_j^  22  S 
tion  per  Kationabiles  Dietas,  (jatlinU  ECgarD  tO  t!jC  ""DlITaitCe  Of  tOC— As 
lp)lace  Ibljete  IjC  was  at  the  Death  oi  the  Incumbent,  il  he  was  within  the  Not 


cap.  22   S.  ^. 
to 

otice 

the 


^8o  Prefentation. 


in  liich  the  Realm  at  tf?C  Cinif,  come  to  the  Knowledge  of  the  Death  Of  tl)C 

r v;.  r„n-  j,^ft5„,j3j.,it- .  fy^  {jg  o({g(3t  aftcTtDarngi  to  tal^c  Jl^oticc  nt  ijtis  ]3m\, 
nno  *  not  before,  inafimict)  a0  Ijc  was  in  other  Couatv  tlian  luljercttic 
^  .  ^  COurcij  id,  am  tijan  uiljere  tijc  Encumbent  men,  s  €.  u  ns*  ab^ 
fidera»ion     )ubgcb,  »£^'ff«  Ekatior^  Caft*  Contra  Co.  9.  c^^^i^;'  62*  D, 

oupht  to  be 

had  to  the  Diftance  of  the  Place  where  the  Pan-on  is.     D.  ^27.  b.  Maig.  pi.  7.  cites  S.  C.   Mich,  j  E. 

1 .  Rot.  ICC.  Lib  Record,  fol.  14   (^ueen  Eleanor  v.  Bilhop  of  Lincoln. 

Godolph.  4,  So  a  JOrtiOri  it  tDOUlb  be,  if  tlje  Patron  were  over  the  Sea  at  the 

cH^f'^  6  '^ii^eOftljeDcatijOftijC  JnClimtieilt,   5  C.  i.   ^:ieenEUamr'^(t{Xk 

^       '    75*agrceti 

5»  Apud  Scotos,  bj)  tlje  coninion  Laiu  of  tde  Hcalm  tbe  Cinic  U'= 
nnteb  for  tijC  l^^ntroh  to  prcrcut,  10  to  be  fouiputcio  a  tempore  Suen- 
tvx  non  autem  a  tcuipore  Vacationis  bencfiuu  i^J^eiic  Eeffiaui  i^a^ 
jcffatent  10.  b. 

6.  %tZ  tijC  Petit  Culloms  of  Normandy,  CbaptCt  Of  Patronage. 
%.  10.  Cbe  6  ¥)3ontij0  fljall  be  counted  from  the  Day  that  the  Death 
ol  the  laft  PoHtllor  is  commonly  known.     3jn   tlje  ailttCnt  QoOOh,    foU 

40.  b» 
7*  Ecgiflruni  ©riginale,  fou  42.  Jntcc  proijibittone^.  Quia  fc- 

cundniii  Legem  &conluetudineni  Regni  noitri  Anglrie  Epifcopi  dec.  Be- 
neficia  &c.  vacantia  per  lapfurn  temporis  ante  fex  Alenfes  a  tempore  Va- 
cationum  eorundem  tranfa6ios  conierre  non  debent  nee  conferre  confueve- 
runt  temporibus  retroa£lis  &c. 

8.  Jf  tIjC  ©rbinan'  rciule  a  Clerk  becaUle  Ije  is?  Criminofus,  in  tl)i0 

f .  ^  ''7,,  Cafe  tljc  patrcii  flj-ali  not  Ijalie  6  ^pontijs  to  prcfent  after  Notice 

7^9    Mich'"  aibClt,  but  from  the  Voidance.     14  Ip,  7,  zu  CUtia  i3  ^.  7.  mil  So, 

;'w.  8c     b.  i^u^re. 

M.   BR. 

Hele  V.  the  Bifliop  of  Exeter.   For  the  Crime  is  as  much  in  the  Conufance  of  the  Patron  as  the  Bifliop. 

Godolph.        9,  jf  tlje  ©rbinarp  rcfufe  a  Cleric  for  Caiife  of  lUicerature,  tlje 

Rep.  249       pittron  fijail  not  IjallC  6  f^OntbS  ftOni  tijC  Notice  thtreol  but  Irom  the 

!!L"sa!k  Voidance.   '£),  15. 16.  ci.  *  227,  7,  per  Cun;iiitu 

539  favs  th.it 

the  La'pie  fliall  incur  from  the  Refufal.     Per  Cur    B.  R.  Hele  v.  the  Bifhop  of  Exeter. *  Thi^ 

fhould  be  517.  pi-  -. 

*  S.  P  lo     Jf  a  CljlirCf)  ^Oibd  by  Refignation  or.  *  Deprivation,    tlje  6 

AuTinVt'i  e  ^19untSj0  fljaH  be  rrchonet»  from  the  Notice  thereof  to  tlje  [Matron,  anb 

Biftop  of' ""  "O'^  ^'™''^  '^he  Voidance.  t  i  Ip.  7-  9-  b,  D.  ij-  16.  CI.  32".  n.  £>r.  (t 

London.  ^JtUBCnt  1 16.   5  C  4.  3»  b. 

S.  P.D.  ;27 

b.  p!.  7.  Mich  T5  &  i^  Eliz.  Anon. Godolph.  Rep  249.  cap.  22.  S.  6. -f  Br,  Quare  Impedit, 

pi  16'5-  cites  S.  C- S  P.  Br.  Qiiare  Impedir,  pi.  Hp.  cites  Dod.  &  Stud.  lib.  2    But  ;;;>o«  the  Death, 

Creation  and  CeJJton  of  the  l):rur,ibe;U,    the  6  Months  fhall  be  accourited  from  the  'time  of  the  Death,  Creation 

And  Ceffion- — ^S.  P.  Godolph.  Rep.  245.  cap.  22    S  2. S.  P.  By  Lord  Dyer,  Becaufe  it  may  be  done 

fecretly  in  the  Chamber  of  the  Ordinary  ;  and  therefore  the  Bifliop  is  to  give  Notice  tliereof  to  the  Pa- 
tron.    5  Le  45.  pi.  66.  Mich.  15  Eliz.  Anon. 

II.  In  Quare  Impedit  the  Time  of  the  Lapfe  fliall  be  accounted /r<?w 
the  Voidance^  and  not  from  the  'Time  of  the  Prefentatwn  made.     Per  Cur. 
Br.  Quare  Impedit,  pi.  90.  cites  14  H.  7.  21. 
The  ft.":  12.  The  iix  Months  fhall  be  accounted  from  the  Time  of  the  Jdwi [Jtcn 

Months  fliall  ^^.^^j  Injiitation  as  to  an  Ufiirper^  and  not  from  the  Time  of  the  Void- 
ed  from'^the  anccj  buc  the  Bijbop  as  to  the  Lapfe  Jh all  count  the  6  Months  from  the 
InlHtution  Tu/te  cif  Vacation  ;  and  againji  a.  Common  Perfon^  it  is  full  by  Admtffion  and 
between  ]nfitiitio,i  without  lndu£lion,  and  Irom  the  jnduftion  r.he  6  Months 
Common  '^yxW  be  accounted  there  i  and  lb  where  the  K.'gprefents  he  ftall  account 
harThsr^idn  ^''^  ^  Months  j'fyw  the  •time  oj  Injiittition.     Br.  Prefentation,  pi,  46. 

P.itron  of 

his  Quare  Im;''cdit  by  the  .Statute  of  Weil  2     Fin.  Law  Svo.  loiJ. 

13.   If 


Prefentation. 


381 


13.  If  the  Incumbent  dies,  and  xha  Patron  prefcnts -.mother,  and  the  ^;  P- Y'"'' 
Bifi'cp  upon  Examination //wrt'j  biju  unable  for  Literature,  in  this  Cafe  j,°"'P;g"'^" 
the  luilices  were  oi:'  Opinion  that  the  6  Months  lliould  he  accounted  a  cap.  zo  — 
Tcnmn:  mortis  &c.     D.  327.  b.  pi.  7.  Mich.  15  &  16  Eliz.  S.  P  Bccaufc 

the  Patron 
oup;ht  to  prefent  a  Clerk  that  is  qualified,  othcrwifc  his  Prefciuition  is  void,  and  fhall  not  prevent  the 
Lai-lc.    4  Mod.  140.   Trill.  4  VV.  &  1\1.  13.  K.  in  Cjfoof  Helc  v.  the  Bilhop  of  Exeter. 

14.  If  an  .Avoidance  be  caiifed  by  an  Union  (for  fo  it  may  be)  then  tlio 
6  Mo'.iihs  Ihall  be  computed /ro;«  the  'fi me  of  the  Agreement  upon  than 
Union  ;  tor  in  that  Caie  the  Patron  is  not  ignorant  of,  but  priiy  to  the 
Avoidance  s  for  there  can  be  no  Union  made,  but  the  Patron  muil  have 
the  knowledge  thereof  j  and  then  it  is  to  be  appointed  who  ihall  pre- 
fent alter  the  Union,  as  whether  one  or  both,  cither  jointly,  or  by 
Turns  one  after  another,  as  the  Agreement  is  upon  the  Union.  Godolph. 
Rep.  24^.  cap.  22.  S.  2. 


(R.  b)    Lapfe.    Notice.    In  what  Cafes  Lapfc  iliall  incur 
without  ISlotice,  and  where  ^vith  Notice.  Rcfnjal  [$sf^,] 

Br.  Quare 

I.  T  jf  tijc  OrQinavp  rcfiifc  a  £letlt,  bccaufc  !jc  *  ts  Cnminofus,  Ije  impedu,  pi. 

1  omjijt  to  mi  jeotice  tijctcQf  to  tije  patten  -,  ctljctiutfc  no  ^4- cites 
laple  njuti  mcuu    3s  ^.  3-  2-  Finch.^ 

S.  p.  Per 

Billing,  quod  MeedhamconceTic.  Br  Q;iare  Impcdit,  pi.  i;o.  cites  S  E.  4.  2— D.  20;.  b  pi.  ;.  cites 
Fit/.h.  N.  B.  Tit  Quare  Impedit. *  .-ds  for  being  a  Heretick.  Dal.  51.  pi.  19. V\'_herethe  Or- 
dinary, after  tiuit  the  Patron  has  prefcnted,  inquires,  a,id  fads  the  Clerk  Q-Miinofiis, !ir\d  the  Time  of  L  pfe 
by  this  palVes,  there  he  fliall  not  mal<e  Collation  by  Lapie,  but  mull  firll  give  iNotice  to  the  P.t/jw  it  h- 
be  a  Lmriuti!  ;  Cchtra  if  he  be  a  Spititiuil  Man.     Kote  tlie  Difference  ;  for  be  ma-j  hmnr  his  cf^n  Ctcrk.  Br. 

lsotiee,''pl.  6.  cites  14  H.  7.  21. Br.  Qiiare  Impedit,  pi  90.  cites  S.  C. -S.  C.   Cited  by  Mounfon 

J.  ^  Le  4-.  Mich.  1 5  Eli.'..  Anon. VVatf.  Comp.  Inc.  Svo.  579.  cap.  20.  cites  S.  C. But  2  .Salk. 

5^9.  lays.  That  if  the  Oidmary  refufe  Qiiia  Criminolus  he  need  not  give  Notice  of  his  Reful'il  ;  for 
tl-lc  Crime  is  as  much  in  the  Lonulance  of  the  Patron  as  of  the  Bifliop.  Per  Cur.  Mich  3  VV.  6c  M. 
B.  R.  Helev.  the  Bifliop  of  Exeter. 

2.  Jf  tijc  ©rBinarP  refiifc  a  Clctfe  for  a  private  Caufe,  as  if  tIjc 
Clcrit  upon  tije  €;cauun:itiou  of  tijc  OtQinarp  confeffes  himfeit  to  be 

a  Common  Adukerer,  or  that  he  conies  to  the  Prelcntution  byUluryand 

the  like ,  g^u  tfjis  Cafc  ti)z  ©iQuiaiT)  16  bouuu  to  mt  il3oticc  tijcreof 
to  tljc  patton,  ot  ctijerjuife  no  Lapfe  fljall  incur,    is  ip,  7, 

3.  So  j^OtfCC  CUn:i;t  to  be  iri^jen  of  a  llCillfill  for  a  Notorious  Crime, 
as  bCfilUOv  ijZ  10  'd  Common  Atiuiterer,  or  a  Common  Murderer.     i8 

D.  7.  iUSLjo.  ii.  Contta  pet -f  rou)icU» 

"  4.  %t'  a  Lay  Patron  ptCfCUtS  i\  Clerk  U)|)0  10  tCfUfCtl  bCCaufC  fjC  iS^  ?•  F.N  d. 
not  well  letter'd,  UO  lapfC  U^i  tUCUC  UMtljOUt  J^OtfCC  ffl^Cn  tO  t\)tll;/Jl~^ 

IMlQW  Of  tljty  JAtfUfai,      1 8  fp,  7.   m\U  49-  b*  LapCe  fhali 

be  to  the 
Bifliop  if  the  Parfbn  does  not  prefent  another  within  the  6  Months  after  the  Clutrch  became  void.  And. 

50.  pi.  70    Pafi.h.  5  Eii7.    Anon If  I  prefent  my  Qerk  to  the  Bifhop,  and  he  fiiirls  him  Xot  Jh'e, 

and  refufcs  him,  there  if  he  gives  Notice  to  me,  and  I  drt  not  prelent  within  C,  Months,  he  may  prefent 
by  Lapfc  ;  but  if  he  does  not  S^ive  Notice,  but  prcfents  by  Lapfe,  there  after  the  6  Months  I  may  havs 
Quare  Impedit  againft  him      Per  Newton  and  Palton.     Br.  Qiiarc  Impedit,  pi.  85.  cites  22  H.  6.  25. 

5.  3if  a  Spiritual  Patron  prefents  a  CtCtlt  tUl;0  IS  tCfUfCtl  IbrDefiult  See(T. ..) 

of  Literature,  tftevc  Lapfc  (Ijall  iucut  UHtftout  i!2otJCc,  bccaufc  tljcf'  '•  ^ 
tm  internes,  'eijat  \)Z  min;}jt  imt  fufficiciit  lUiouJlcBsc  of  Oi.s  €)Uf' 
fiacncc  bctorc  ijc  prefcntco  i)im.    i  s  p,  7.  XacU.  49-  b, 

5  D  6.  3f 


3'82 


Prefentation. 


But  it"  the  6.  Jif  iin  Incumbent  of  a  Church  with  Cure  of  t\)t  3?ilUlC  Of  5  1.  per 

^l'V"^^       Annum,  takes  a  2d  Benefice  which  is  not  within  the  Stature  ot   3iKl. 

the  i\«ron  tl)0'  110  lopfc  lljall  menu  to  tlje  £Drliittarp  bi'  tl)i£i  Doionncc  1)d  tl)c  Ca= 
muft  take-     noil  ticforc  Bonce  mm  to  tOe  ]i)ati-on,  pet  after  Jl^ottcc  Laptc  Qjall 

inctir  ifOc  Boejs  not  *  prefcut  luttoin  6  d5ontl)3»  Ctuu  14  Car.  05.  U» 

ni  Bahhiics  Cafe,  bp  Jones  ann  laarfelep. 

Notice  lit  his  Peril  ;  for  it  is  void  by  Act  of  Parliament,  and  the  Words  are,  That  h  paU  he  v.vd  as  if  the 

Ji.iim.lient  zi-as  dead.     I'cr  Jones  J.   Jo.  405.  S  C. If  a  Man  be  prefentc-d  to  a  Benefice  of  61.  per 

Ann.  and  after  to  another  of  20  1.  if  he   is  Deprived  for  Plurality,  rhe  Blfhop  mult  give  Notice  to  the 
P.ttron  ;  for  'ti.s  at  the  Common  Law,  and  'till  Deprivation  'tis  no  t'ellion.  Godb.  25.  Pallh.  26.  El.  C.B. 
V\'iicre  an  .I'loidr.rce  is  hy  Statute  no  Notice  need  be  given  to  the  Bifliop.     Brownl.  16. 

s  P.  Br  No-  «.  jf  a  Reiignation  i3c  niaOe  to  tfjc  X^tfljop,  uo  lapfc  fljall  incite 
nee.  pi  .0.  juitijoiit  jT^otice  tljcccof  gmn  to  tljc  l^roii.    i  s  ip.  7.   lAclU  49-  b. 

;'_Br.  I«eU€>.347.    I- 

Qu2:e  Inipe- 

dit.  j'l.  11-,  cites  S.  C. The  Patron  fliaH  take  Notice  of  every  JVnlwce  of  an  Advowfon,  except  Re- 

fqnatiiH,  and  of  thib  the  Ordinary  fliall  give  Notice  to  him.     Br.  Notice,  pi.  27^  cites  Frowick's  Kead- 

i.-.g^  1 1  - , If  the  Avoidum  e  of  a  Church  is  by  Refi^nation,  or  fuch  like,  ivhere  the  Bijhcp  is  priny  or 

P.irty  to  the  Cau/e  0}  ti  e  .Jieid.xnce  &c.  Notice  muft  be  given  of  fuch  Avoidance  to  the  Pacron,or  other- 
wit  the  Ordinary  fhall  not  take  Benefit  of  the  Lapfe.   D.  295.  b.  pi  5.  Mich-  1 2  &  1 5  Eli?.,  in  the  Cafe 

of  Bedinfield  v   Pickering. If  an  ['fmper  pre/etits  ivithin  the  6  Mcnths,  and  the  Prcfentee  is  in  for  6 

JJoi.'tls,  710  Sctiie  beihg  given  of  the  Refienation,  yet  that  Ihall  bind  him,  and  he  fhall  be  put  to  hisRight 
ot  Advowfon.  Secus  if  the  Ordinary  iiad  collated,  hecaufe  the  Induction  is  Notorious  to  the  Country, 
and  the  Patron  ought  to  take  Notice  of  it  at  his  Peril  to  prevent  the  Ufurpation  of  a  Stranger.  Noy  65. 
Servien  v.  Bifhop  of  Lincoln. 

8.  ^0  if  tbC  Biiliop  dies  who  took  the  Reiignation,  ^Ct  LapfC  fljall 

not  incur  to  ijts  succeifor  UJitljout  Ji^ottce  wijen.  is  ip.  7.  i^eil.  49-  b. 
In  Cafe  of  9.  ^Q  jiffcv  tutij  Reiignation  no  lapfe  flJaU  uictit  to  tbc  i^mg  after 
S'S".-  ^  ^'^'^'^  '""^^  ^  ^^'"^'^^  ^^^  Default  of  tlje  SDrotnarp  anD  93etcopoUtan ; 

i'hn  f!o'La""fc  bCCiiUfe  no  Lapie  Ihall  incur  to  the  King  where  no  Title  ot  Lapfe  was  to 
fliallincur     tne  interior  Ordinary.     £!).  i8d.  348.  12. 

to  th.e  King, 

hut  a:;er  Noiice  given  to  the  Patron.     Jenk.  244.  pi.  2S. 

*  S.  P.  For  10.  t'^^o/z  *  T^f/Jiv'i^^^/o;/ the  Ordinary  fhall  give  Notice.  But  it  is  fiid 
itLsaSpiri  elfevvhere,  that  of  Fti/^^/va',  Ct^^w/,  and  Creation.,  the  Patroji  Ihail  take 
oTwiiich'the  ^*'"tice  at  his  Peril ;  and  the  iame  Law  of  Rejignation  as  of  Deprivation 
Patron  is  not  Br.  Notice,  pi.  24.  (bis.)  cites  5  E.  4.  4. 

bound  to 

take  t'orufarce  before  Notice  given.     Br.  Quare  Impcdit,  pi.  ii",  cites  S.  C. The  Notice  of  Li- 

privati'-^n  or  Reji^7:ation  ought  to  be  given  by  the  Ordinary  himfelf,    and  >iot  by  a  Stranger.     Br.  Notice,  pi. 

2  5.  cite.s  Dctt  ard  Stud.  lib.  2.  cap.  5 1 .  If  a  Parlbn  be  deprived  by  the  Ordinary,  or  reads  not  his 

.Articles,  in  which  Cafes  the  Church  is  void,  yet  Notice  niufl  be  given  to  the  true  Patron  jor  the  I'lmey  [or 
Turn]  orelfe  tl'e  Lapfc  incurs  not,  (which  is  inconvenient  for  the  Church,  and  a  Prejudice  to  tlie  Or- 
dinary) for  how  Ihall  he  in  this  Cafe  aflure  himfelf  of  a  fufficient  Notice  ,  for  if  he  give  Notice  to  him 
that  IS  not  Patron  for  this  very  ^urn,  his  Notice  is  vain,  and  the  true  Patron  perhaps  knows  not  of  the  Da- 
privation  ;  or  if  he  knows  it,  needs  not  prcfrnt  without  Notice  given  him  In  this  Ca!"e  Sir  H.  Hobard 
Ch.  J  holds,  TUaX  his  U  ay  is  to  a^u. ard  a  fure  Patronatus,  with  folemn  Premonitions  Q;.loruni  Interell ; 
and  then  Inouiry  being  rrvade  who  is  Patron,  to  give  him  Notice  ;  and  if  he  prefents  not  within  6 
Montiis,  tlien  the  Ordinary  may  collate,  tho'  that  jhall  not  bind  the  very  Patron,  yet  it  fliall  excufe  the 
Billiop  from  Dillurbance  upon  fpccial  Matter  fliew'd;  but  if  the  other  fuppofed  Patron  prefent,  and  the 
6  Montlis  incur,  Ou*re  if  the  true  Patron  be  bound,  fince  there  was  no  Notice  given  liim.  And  the 
Ot'inion  of  Hobart  is.  That  tho'  without  Notice  the  Patron  is  not  bound  by  the  Lapfe,  yet  that  i?  no- 
Thing  to  iiive  the  Ufurpation  of  another  pretended  Patron,  who  is  not  Subject  to  give  Notice  Godolph. 
Kcp.  iSi.  cap.  16.  S.4.  cites  the  Cafe  of  Elvis  v.  the  Arshbilhop  of  York. 

II.  In  Quare  Impcdit  againft  the  Bifliop  and  his  Collatee  the  Bifhop 
pleaded.  That  ^i.  prefented  J.  S.  to  him  at  B.  and  he  being  getting  onHorft' 
laok^  commanded  J.  S.  to  attend  him  at  N.  -juithin  the  J'atne  Diocefe  'within  3 
Days,  that  he  might  ex  vnine  him  and  inquire  of  his  Ahilit)' ;  bat  f.  S.  same 
not  then  nor  in  6  Months  after,  by  which  he  collated  by  Lapfe  Abfqne  hoc, 
that  the  faid  IV.  L  [as  the  Plaintiff  had  counted]  gave  thefud  Alanor  to 
K.  L.  ill  Tail,  Prijl  ^c.  And  it  was  at  length  held,  that  the  Ordinary 
Ihall  have  Time  to  be  advis'd  j  tor  in  Examination  he  is  judge,  and  no'c 

Officer, 


Prefentation.  ^83 


Officer  i  And  that  the  Time  and  Place  given  were  convenient,  and  that 
he  need  not  give  Xotice  to  the  Patron,  that  f .  S.  came  not  be  examin'd 
becauie  he  had  not  retus'd  him.  Br.Quare  Impcdic,  pi.  91.  cites  14  H. 
7.  21.   15  H.  7.  6,  7,  8. 

12.  If  the  Biihop  refufe  a  Clerk  hccaiife  he  is  a  Villein^  as  he  may  do,  Br.  Notice, 
he  Ilia!!  gi\'e  Notice  thereof  to  the  Patron,  whether  he  be  Lay  or  Spiri-  J^'-^-'^'^" 
tual.     Br.  Quare  Impedit,  pi.  92.  cites  14  H.  7.  28.     Per  Brian  and  the 
greater  Part  ot'  the  Julti^cs  and  Serjeants. 

13.  Patron  prefents  a  mere  Layman,  who  is  admitted  and  inftituted,  S- C.  Bendl. 

Notice  mull  be  gi\en  beiorc  Lapfe  Ihall  incur.     And.  16.  pi.  ^4..  Pafch.  '9v  P':f54- 

12  Eliz.  Eenncfield  v.  Pickering.  ^     ^  ^ C  D  29! 

b  pi. I.  Mich. 

i:  &  I  5  Eli7„  Adjudg'd. 2  Show.  114     Per  Scro{;gs  Ch.  T.  P.ifch.  ■:t  Car.  2.  B.  R.  in  the  Cife  of 

Hill  V.  Boomer.  S.  P.  t.o  J  ) 

14.  13  FJ.  1 2.  EnaQs  that  No  Lapfe  pall  accrue  'till  6  Afontbs  after  No-  Where  one 
ticeof  Di privation  for  heing  under  Age,  Not  reading  the   39  Articles,  or  ""'^^''p''^, 
Oppugnirg  the  fame,  given  to  the  Patron  by  the  Ordinary.  yII\°  w« 

prefented  to 
a  Benefice,  the  Qiieflion  was  Whether  the  Patron  fhould  have  Notice,  or  that  Lapfc  otherwile  fhall 
not  incur  to  the  B:lhop,  whicli  is  grounded  upon  thi.s  Statute.  And  it  was  lield  clearly  by  Mallet, 
Heath,  and  Branipfton  Juflices,  That  the  Notice  ought  to  be  given,  or  otherwife  that  Lapfc  fliall  not 
incur.  But  they  agreed,  That  if  the  Act  liad  avoided  the  Prefentation  aUb,  a.s  well  as  the  Admiffion, 
Inftitutiop,  and  IndudHon,  that  in  fuch  Cafe  thz  Patron  ought  to  have  taken  Notice  at  his  Peril,  being 
an  Avoidance  by  Statute,  if  the  Provifo  help  it  not.  Mar.  119.  Mich.  17  Cir.  the  Bifltop  of  Here- 
ford V.  Okcley. 


(S.  b)  In  what  Cafes,  and  in  what  not,  Lapfe  fhall  in- 
cur without  Notice  for  Collateral  Canjc^  where  De  Jure 
Notice  ought  to  be. 


I-  T  J^  fuel)  Cil?^C£j  where  of  itfelf  no  Lapfe  would  incur  witi 
^  tice,  if  the  Ordinary  tUljO  OUffljt  tO  fft^C  tljC  MQXltZ  die 


ithout  No- 
ies  before 

Notice,  m  no  laprc  fljall  mcui:  to  tl)e  Succeiibr  luitfjoitt  J^oticc.  is 

13,7.    BCU.  49ti» 

2.  i^ljece  jliOtlCe  tS  to  be  (XiUm,  nilU  none  is  given  within  a  Year 
and  a  Half,  llj)  lUl)iCl)  InpfC  OlllTOt  tO  tUU  tO  tljC  King  tf  J!30tice  IjtlD 

been  (xiisni,  vet  no  Lajjfe  fljall  incur  to  tfje  £\lnn;,  becaufc  *  no  lapse  *  s  p  Hob. 

flhlll  fun  to  tl)C  UUUJ,  lUljCte  no  Title  of  Lapie  Was  to  the  interior  (Jr-  '54  '"  the 

dinary,  mafuuicl)  as  Ije  coniesj  to  fuppli)  tijctc  Default*   D,  18  €L  rnd'cLS' 

34S-    12.  V  theBuhop 

of  Coventry 
and  Litchfield. S.  P.  Cro.  J  95.  in  the  Cafe  of  Lancafter  v.  Lowe. 

S-  Jf  BOtiCC  OUljIjt  De  Jure  to  be  ^\\A%  the  Temporakies  Of  tf)e  WatfComp. 
£Dft!inarP  being  in  tne  Hands  of  the  King,  pet  it  fteUVS  tljat  UO  Lapfe  itr-'-Svo.  5a. 

fljiill  riui  to  tOc  smz  untljout  Notice  to  tlje  li)atron ,  foe  it  fecius  tbat  ^^^-  '^■ 

tlje  Guardians  of  the  Spiritualties  OUgijt  tfl  fflUC  Jl^OttCC.     D*  22  ^U 

369.  54.  mil  proijc  XW* 


(T.  b) 


3H 


Prcfcntation. 


(T.  1))  l/'hat  fliali  ht  ju fjlciciit  Notice  where  it  is  requliite. 
*  s.p.  2     I-  T  if  iin  ©rtimarp  refufe  a  Clerfe  for  iiiicerature,  anil  notifies  it  to 

Sa!k.  5^9.  in  tljG fi'iltVOn  bV  l^ublick  Intinmdon  fix'd  on  the  Door  ot   the  Church 

the  caie  of  to  w  hich  tlje  Cleru  rons  pvcfcntec,  it  is  not  goon  luitljout  JQotice  *  to 

Sw,?    the  PedonOf  tljCli5QtV01L     D.   16  CU  S^?-   7-  SiltJjUDirtl* 

Exon  2    J'.uc  UiijCrC  t!)e  Patron  cunnot  be  lound,  pCtatiUCntlirC  ftlCl)  pllWiCfe 

Tnc  Biniop  sintiniatioii  fljaU  b  cfufficicnt*  D*  i6.  (£l.  327, 7. 

rcfu'ed  a 

Clerk  becaufe  the  Service  lo  he  reaA'w  the  Church,  to  which  the  Prefentment  was,  »;///?  ht  in  the  Ifekh 
lorfftie  -And  l\tc  Prejentfe  cci'.ld not  fpe/tk  li  ehh,  and  tWat  ihtParijInonersujiAerJlooii  vot  tlie  £■;:,;■  Aj;;,  and 
thcictDrc  he  ret'uftd  hhn  ;  And  all  tlie  julHces  held  tliis  a  good  Caule  of "Ketufid,  for  be  cannot  in  itrutt 
his  Flock  accordini;  to  his  Duty  and  Charge;  but  in  tliis  Cafe  the  Pl.'nitiff  had  prefe};teii  i6  Days  uithin 
the  6  Movlhs,  ar,d  the  Bifliop  gave  t.o  No'ice  of  the  Inability  of  the  Clerk,  til!  ;  D.;\s  after  the  6  MrKitt 
expired  •  And  the  Court  iie^d  tliat  notice  ought  to  be  given  to  the  Patron  himfclf,  if  he  be  re/idtnt  in  the 
Countv',  and  if  not,  a  publi.k  Intiiration  ought  to  be  on  the  Church  Door,  and  notice  of  this  Matter 
ought' to  have  been  given  immediately,  when  he  was  prefented  and  examined,  or  within  futh  conve- 
nient Speed  as  mi'ht  he;  But  v.  lien  the  Bifhop  is  to  enquire  ot  the  Behaviour  of  the  Clerk,  he  fhall  have 
]i,  •cr(;r']'iine  •  And  for  tiiis  Cauie  Judgment  was  given  for  the  Plaintiff  Cro  Eliz.  1 19.  Mich.  50  8c  ;(. 
Eliv?  B.  R-  Albany  v.  Bp.  of  St  Afaph. — Le.  ;i.  pi.  59.S.C.  And  And^rlon  faid,  that  22  Days  between 
the  Prefentment  and  the  Notice  v/as  too  large  a  Delay,  and  the  Defendant  has  not  fliewn  in  his  Plci 
anv  Cuufe  for  the  Juilifvi"g  or  Exxufe  of  it,  and  therefore  upon  his  own  Shewing  we  adjudged  him  a 

Dillurber. S.P.  Cavth.  512.   in  the  Cafe  of  the  ©ifljOp  Of  CjCittTi).  irliiC,  where  not  giving  notice 

till  "1  Days  after  Refufal  was  indited  to  be  too  long  a  Delay,  and  to  amount  to  a  Difturhancc  Iplb 
F..tfo  becaufe  in  I'uch  Ca^e  the  Bifliop  is  bound  to  give  notice  to  the  Patron  with  all  polTible  Speed. 
J-iui  ilie  Court  gave  no  Opinion  in  this  Point. 

3.  The   6  Months  flmil  be  accounted  up'M  the  Death,    Creation,    and 

Cc[/i(m  oj  the  Incumbent  J  jrciH  the  Tiriit:  oj  the  Death,  Creation  and  C:[[ion -^ 

But  upon  Rejiguation  or  Deprivation,  it  fliali  be   accounted  jrojn  the  Time 

of  the  Notice  given  iy  the  Eijkvp;  and  ifanochcr  Bilhop  gives  Notice  tlvisis 

void  as  it  leems.  Br.  Quare  Impedit,  pi,  159.  cites  Doit.  &  Stud,  lib.  2. 

But  fee  F.  N.E.  thatlS'oticeoi  Relignation  Ihall  be  given  bv  the  Bilhop, 

where  he  intends  to  prefent  by  Laple^  C^uod  vide  ibid.  fol.  35. 

The  Statute       ^    In  Quare  Impedit  &c.  the  Billiop,   as  Ordinary,  entitled  himfclf  to 

tlnt^Lapfe     prelent  by  Lapfe,  by  reafon  of  a  Deprivation,  for  not  fubfcribing  the  39 

fliall  notac-  Articles,  and  on  Illue  taken.  If  notice  of  the  Deprivation  wns  given  by  the 

ciue  without  Ordinary  to  the  Patron,  it  was  found  that  the  Bijhop  notified lutheChnrch, 

Notice,  and   ^j^^  ,^qj  lubfcribing  by  a  certain  Intimation  feakd  by  him,  viz.  R.  Epifcopus 

tho'diePa-  C-  Univerlis  ReStoribus,  Vicariis,  Curatis,  non  Curatis,  Clericis  &  Lite- 

tronmadcno  ratis  qttibufcunque  intra  Diocefim  nollrani  C.  Salutem.  Cam  R.T.Si^c.non 

Pre'er.tation  fnbfcripjit  &.c.Ji/xta  Statnt.  &c.  comnunding  them  all,  and  efpecially  the 

v".''-"''r°     ^urateof  C.  to  declare  in  the  faid  Church  of  C.  the  faid  Non-fubfcribing 

DepHvatTon  ^'■-    This,  tho'  found  to  have  been  pnblickly  read  in  Englijh  in  the  Pttlpit 

of  this  Pre-    ot  thc  Church  8i.c.  and  ajtertvardsjixed  at  the  Charch  Door,    vias  held  by 

fentee,  for    all  the  Juftices  in  Cam.  Scacc.  except  Harper   and  Mounibn,  Abfente 

'^''' v"^' h    Gawdy,  to  be  infufficient  to  prejudice  the  Patron,  becauie  it   is  upon  a 

Artidef  'yet  -^^'^''^  Statute  to  the  Incumbent,  and  alfo  to  the  Patron,  to  make  him  lofe 

no  Advan-     his  Prefentment,  and  therefore  fuch  Notice  to  the  Patron  ought  to  have 

tage  can  be   been  Perfonal,  and  the  Intimation  oughtto  havenotified,  that  tlie  Ordinary 

taken  of        \^^^  deprived  him  by  declaratory  Sentence  for  his  Not  affenting  and  fub- 

eamftthe      fcribing  to  the  Articles  according  to  theStatute^   For  otherw.le  it  fhali 

Patron.  And.  be  intended,   that  the  Ordinary  is  contented  to  permit  him&c.D.  346. 

fi2  pi.  15(5.    pi.  7j  8.  Hill.  18  Eliz.  Bacon  v.  theBifhop  of  Carlifle  6c  Vvitton. 

The  Queen 

v.  the  Bifliop  of  Lincoln  and  Cock. S.  P.  D,  569.  b.  pi.  54  Pafch.  22  Eliz.  feems  to  be  S.  C.  and 

that  itfccmed  te  the  Court,  that  the  (>deen  fhouldnot  prelent  by  Lapfe,  though  the  Patron  had  notice 
of  himielf  of  the  Not  Reading  of  the  Aiticles  by  his  rrelentee,  notice  not  h.iving  bjen  given  by  the 
CrJiiiary. 

5-  li 


Prefentation. 


ttufidiicu  tne  ricn-'niuiiuu  iiiviii    uu   mavi^  ..i.x_y  .....  ^  ^. >....-,  _  

the  i'r.ic-iudtion,  and  not  inB's  Name  that  huth  the  Nomination  ;  there 
lore  if  the  Ordinarv  ll.ould  refiife  the  Ocrkfor  Dtjabiltty,  notice  Ihall  bi 
give'nonlybyhim,  to  him  that  hath  the  Prefentation,  and  not  to  hm 
that  hath  the  Nomination.  Dod.of  Adv.  66.  Left.  12. 


in 


(U.  b)     hi  ^johat  Cifes  Lapfe  fhall  hcur  to  the  Ordimry.  Seec3.c.  z) 
1  TiT  ti)c  Church  i)c  litigious  mwtw  tlw  patrojtd,  nnU  tl)c  onc=  j,^ .,  ^,,^^„ 

1    tmilXd  11(0  Qaare  Impedit,  or  ^ffl^C  Of  DiUrCin,  PrCfeUtmcnt  in,,,,cirr,' if 


;::  by 


tiuiiu^'^*  i5.6e-  uRot  I?atcntmmf0cmt!.25.  tctluccn tl)c abbot Cpfe' if th. 
%m\t  c^iup  Cbornm,  anXitIJe^^lflJ0l)0t"■JI5anmci)aDur.ttcn»  33  (L%  6  Months 

3. 2:iuarcl.mpct!iti94-  mZ:: 

But  bein-r  named  he  cannot  take  Advatitage  of  any  LapC.-,  but  ou<;ht  to  fee  that  the  Cure  be  firmed  bv  Allow- 
ance oi't,,f  the  I'rohts  to  be  taken  by  Sequellratioa.  and  as  he  can  take  no  Advantage  ot  the  Lapx»  !a 
"the.- can  the  .l/.^.^;.^«.,  o>-  the  L,  ;  For  no  Laple  b^ing  agatnil  the  '^'^^^'J^J^^^  '^- 
any  LapCe  againft  them,  and  oneBufef;^  (Laft,  was  cited  by  Coke  to  have  been   lo  adjudged.  Uo.  J. 

^^lh?±°^i:^"?f  tL^ve^^^irT;^  Oe  Ju.  Patronatus     And  ifd,e  ... 

be  L:/£  Z  /v  //  .»  ,  .-.rf  tie  Cher  hy  ,!  e  other,  there  theChurch  is  ht.g.ous.  ard  if  thc.r  Tidesa.e 
notKff^d  within  the  6  Months,  the  ^ifliop  may  preient  by  Lapfe.  Br.  Quate  Impedit.  d.  So.  cue. 
21  H  6.  44. 

2.  But  if  tllC  ^ifljOp  refufcs  mi»  €\a\  without  CauCe    and  after  the 
Church  *  becomes  litigious,  HO  LiipfC  lljail  iitCUr  tO  t.jS  Jbi'ljOp  ;    JOC 

tijis  corners  bp  1)10  own  Act.  5  e»  u  75-  Ciuccn  eicaiiac0  Cafe*  33 
s'snaouureimpcditapma  aOmitbcr,  tbc  BiHiop  not  beiiw^i .„  ,,^^^^.„^ 

named  in  the  VVrit,tf  tijC  ptajntlff  recovers  within  the  6  Months  J)et  It  ,,  ^areh:- 
tbC  6  ^"Bnntl'iS  incur  before  the  Writ  to  the  Bilhop  tafeCU  OUt  tljC  Lupie pdn  after  6 

m  mcut  w  ti)c  ©remark  17  e,  3. 75.  ifit^i).  Ba.4^.  b.  s  ^.  x.  ;£fg;^;;-;;t 

75,    !3lIUUtttCM*  reinnins 

-uei^,  ^vhen  Writ  to  the  Bifhop  comes  to,  him  he  ought  to  receive  Ifis  ^'e^k^  Per  Hill  quod  nullusnega- 
vit.  Contra,  where  h-e  had  made  Collation  by  Laplebefore.  Br.  Qua.e  Impedir.  pi  53.  cues  1 1  H.  4  ho, 
I;  a  Ma!,  brings  ^.r.-e  f.^tedrt,  ar.A  6  Mo.ths  p.fs  before  Keco-p  and  after  he  recovers,  He  can- 
rot  have  Execution  bl^'Force  ot  hi.s  Recoverv,  and  yet  the  Law  adjudges  this  Advowkn  m  h,m,  and 
Writ  of  Right  of  AdVowlon  fiiall  be  brought  againft  him  that  recovers,  and  Jet  he  fliad  w.^,  ^a-.i 
Executiiti.  Kelw   ic^'.  ph  iS. 

4    So  If  after  the  Recoverv  within  the  6  Months    tljC  DcfCUMllt 
bruise  '^^'■'1^  of  Error,  and  the  6  Months  pafs  Pending  it,  lapiC  tljAli  IIV 

^"^  f Inir'Bii:^-^  be  fiSiii  Jrtr,  no  lapfefball  run  bp  m  DtSurbancc, 
tbcimb  tOcCburci)  bctjoinbp  6  ^mxm.  Cr»  3*  U^  "B*  K.  bctuiccii 

6.  As  !ft!)Ci£!atrCUi3rcrcntSl  to  tlje  Bilhop,  anp  ijCwiIl  not  examine 


the  Clerk    butdeia\s  him,  by  which  the  6  Months  pais,  pet  UO  La 

fljau  m\  to  tbc  Xiiljop ;  OSccanre  be  10  a  Dmurber,  ann  tbj^  coinc^ 

7.  Lapfe  ma\'  be  ot  a  Vicarage  append.mt  to  a  Prebend,    J^r,  i  relcnta- 
tion,  pi.  26.  cites  24  E.  3.  26. 

5E  ^-^^ 


^^6  Prefcntation. 


8.  Of  zChafitrry^  which  has  not  Cure,  the  Ordinary  fliall  not  have  Ad 
vantage  oi  Laplc,  iiiikfs  it  be  cxpnjfed  tn  the  Fotindatwn.    Br.  Quare  Im" 
pcdir.  pi.  131.  cites  13  E.  4.  3.  ^- 

9    n  a  \-xv:xc  Layman  beprefented  and  inilituted,  and  no  Sentence  of 
Is  ullity  or  Deprivation  gi\  en,  the  Ordinary  cannot  collate  by  Lapie   Fin 
Law.  &UX  89.  J       V    •  •■  <". 

10.  \i  in  a  (^uare  Impedit  againft  the  Ordinary,  heconfefTes  the  Diffnr 
banco    he  cannot  alterwards  have  Lapfe.  Br.  Ouare  Impedit.   loa    cii... 

39.    E.  3.    15.  ^  r  3-    >-ii.<.a 

ir^  NoLapfe  can   be  after /;;/?;Y/,/;o;/,    the'   there  be  no   Induaion, 
Per  Popham  Ch.  J.  Gold^b.  164.  in  the  Cafe  of  Robins  \ .  Prince. 


(X.  b)     Lapfe.      In  what  Cafes  it  lliall  be  pfc-jental  by 
the  Niimh/g  of /-/>/  }/i  a  ff^Vit. 

prJ'L^o-  ''I^otSSrlfJiT^^^  ^''^  bDtijcDcat^  Of  tijc  Encumbent oc 

[is  T        WfUJlIC^  mm  tIjC  Patron   within   the  6  Months  brings  a  Quire 

Inipedit  aga.nft  the  Bilhop,  and  after  6  Months  pafs  without  any  Prdcnt- 

Hob.  197.    "lent  Up  tijc  l3ntron  to  djc  X^ifljop,  iLapfc  niaU  ntcut  to  t\i  'Kinimi 
Pi ,  ^50      notuntljannDinD;  tOc  Idtmm  if t jc  mux  S     i"  not  toftifS 

^^  -       5.""^?^ ""  fraiimi  f  itt  Action  of  tl;c  patron  uiitOoitt  Cauft  b5  iS  iS 
...ci.biftop  tt'C  ©rfiinarp  fljal!  be  mit  to  erpcnccs  toitJjoiit  Caim: ,  a  no  In,  a  rb 

1^9^  S^^gUbl^llctSt^^"  "^^^  '^^^  ^^^  ^^"^^  ^^^"'^^ 

ccvc  either  of  i,cm  at  his  Penl    yet  receives  neither  (as  he  may  lawfully  do)  till  the  R..  u  be  irui/d' 
TV  .thou:  dom^  hi,n  elf  any  Aftof  Difturbance  ;  in  this  Cafe  \iAbnnoj  hfs  d'-re  S'S  <lt%  /  «/v' 
tile  Biihop  may  collate  by  Lapfe  without  Ouellion.     But  in  that  Cale    ,r  4^«ar<,eVlTnf  ^    ,\     ^' 
d.r.t,  togctl.er  with  the  Difturber.  and  thtn  the  Bifliop  comes  and  plV/ds1hrtrchim  l:nrl^t^*'''"' 
Ordinary  &c    a,.d  ,he„  the  P,a,„,^  ..,,  .  /,,,,  ,  ,,,  5%„,  .,.,,,  ^  ^^^  1  ^^Tna  t.^^^,- 
agamil  the  Difturber,  and  the  B,JIhJ>  in  the  mean  Tin-,e  cclLues  by  Lapfe  ;   in  that  Cafe  perhaps  the  B 
fliops  Cl.rk  may  be  removed,  for  it  d.fcrs  much  from  the  former  Cafe,  for  here  r^-as  TtllTJr  7" 
iei,,.ADipurh»:ce    wherennto  the  Ordinary  gave  Way  fb  far.  that  the  Pl.intirt  could  not   "t  hk  Ckrk 
T'lt  nndTl"  i;?^^" '°  "-^  <i"-Yf  ^'^;P- 1^'  'f  ^  h=«l  proceeded  to  liis  Jure  Patronatus  w1  hou  Ou  re 
Jmpedit,  and    heT.mehad  incurr'd.   the  B.fliop  might  have  prclbntcd  to  Lapfe  rcmedUe™d£e 
fore  fmce  he  did  his  Endeavour  to  prefent,  and  was  interrupted  by  a  Stranger,  and  the  d;dintv  ,  fi' 
refuM  his  Clerk,  for  which  he  had  rather  have  aa  Excufe  than  /jM!Hhca?ion,  and  now  fiVii: 
made  Defendants,  and  the  PamfH  s  Title  w  proved  againll  them  b'cth,  as  if  i     had  been  So.,   h» 
Beginning,  it  (hould  be  hard  that  the  Bifliop  Ihould  muke  Advanti^c  of"  this  Refulkl    wh!,  ^  t 
nl'^t''   been  again,!  Right  and  [hej  L  Party  to  the  iuit.  Hot  To,  'mI^  '  5 'jac 'b    ckrad^v" 

ArchbiOiop  of  York Ibid,   in  Marg.  there  is  the  foUouinc  Note    rviz    Thar  u  ic  n.V   ■  u 

the  Prefcntation  of  tl>e  Dilh.ber.  .,  the  skop's  Refufal  'of  the  I^.t^i-s'c^S  tl  rprefe  ts     v  ricTif 
titles  him  to  the  (}n.vc  Impedit  ;.«id  therefore  it  is  enough  for  a  B.fliop  to  efcape  the  CharVo  '.d' 

Iturber,  and  not  alfo  to  make  Advantage  of  a  Lapfe  caufed  by  himlelf If  5)„,,,  /.„^,>,:"i:         , 

agairtft  the  BiH^op  -^ntout  ..v  P./.„..^.„  made  to'  him,  or  LZL,„g  l^Z^'t^  XX- 
■where  vo  D,pnba>,ce  nvas  „,^de,  in  this  Cafe  tho'  the  Bifliop  was  Party  to   tL  Ouare  ImneHr    Tr'  K 
ftan-t  lole  his  Lapfe;  for  Fiction  fliall  not  take  a^fay  Right     Jenk.  281    p]   7.^  ^       '  ^''  ''" 


2.  :jf  a  Q5ai1  recovers  againft  J.  S.  in  a  Quare  Impedit  within  the  fix 
Months,  and  Defendant  brings  mKlt  OfE^rcu:,  and  Phiintiff  fucs  aOuare 

i.Kumbravft  aLTauii!  tije  OBiRjop,  ann  after  ttje  6  Months  pafs,  per  no 
i^rSn,??"  '"^"fr^"^  ^^'^  ^'^^"^'^'-'^ '  """^^  f'J^  ^"^^^^  :jiicu!nbr.rjit  m 

I.  Jf  a  ^l^an  bnttg^  a  Quare  impedit  againd  Patron,  Ordinary  and 
Incumbent,  ,\WQ  ff-JC  Ordinary  pleads  that  he  chiims  norhin<^  but  as  Or- 
dinarvs  miD  after  tIjC  Plaintiff  recovers,  anH  tbC  P«ron  and  Incumbent' 
bring  XBnt  Of  Error  m  13.  E.  pending  which  the  Bilhop  dies,  aifil  mm- 
tfjCr  1.3  maae  BUljOp,  ami  titter  tl)C  incumbent  takes  a  2d  Benefice,  t)i 


Prcfentation.  287 


tefjicl)  tlje  firft  i&  ijam  bp  tlje  Statute  of  piiirnllticsi,  6  Months  pafs, 

and  alter  the  Judgment  is  atfirni'd,  nO  ILapfe  fljaUmCUt;  tO  tlje  OcOl-- 

itiirp.  p»  3  31a*  T3*  K*  bctiuccii  7^?/zo-  .?//^/  £j/(;«  aimiCijcD,  tljis 
93artcr  bcinn;  vcttirncD  bp  tijc  nctu  Ocifljop  upon  tljc  llBnt  to  tlic  loi- 
fijop  to  Ijim  DitcftcD* 

4.  A  Church  is  zwid  for  a  Tear^  where  a  J^tjare  Impedit  was  brought 
•within /is  Months  agamji  a  Bifloop  and  a  D ijl iirt'cr  ■■>  neither  the  Metropo- 
litan nor  the  King  ihail  have  any  Lapfe  j  for  the  Bilhop  being  made  a 
Party,  has  no  Lapie  ;  and  where  the  Bilhup  jliail  not  have  a  Lapfe,  nei- 
ther the  Metropolitan  nor  the  King  )hall  have  it.  Jenk.  281.  pi.  7.  cites 
1  Inlt.  344.  b. 


(Y.  b),     ^gahjl  njohat  Perfon  being   Patrof?,    Lapfe    'p^T'^fiO 

fball  incur.  Oor\; 

!♦  Tif  an  Infant  pattou  tioe0  not  prcftnt  Uiitljin  fie  ^ontf)i3,  Lapfe  waff^Comp 
1  (ball  incur.  33  <i5»  3»  Siuarc  3mpc5it  46,  ^^-^  °;*'.^^- 

2.  «)a  Lapfe  iljnli  incur  aijainft  a  Feme  Covert,  if  fljc  nociS  not  pre= "  c   " ""'' 

ftnt  UJitljm  fijc  ^ontl)g(»    n€.i,  £iuarc  3impeoit,  46,  f.  n.  b.  54 

(T)  S.  P. 
3.   17  K.  2.  8.   Ena6ls  that  Lapfe  for  /is  Months  pall  not  prejudice  the  IftheAVw^  • 
Kmi's  Prcfentation  to  a  Church.  per-nits  a 

^  ■'  Lapfe,   the 

Ordinary  canwt  prrfent  by  Lapre,  hnx.  fetjuefter  the  Profti,  and  find  the  Cure  till   the  King  will  prcfc.it. 
Br.  Quarc  Impedit,  pi.  90.  citcb  14  H.  7.  21. 


Cr 
El 
t.itiun,  pi  s^-  cites  the  Regilter,  iol  31.  AnnoSE.  3. 

5.  VVhere  the  King's  'Tenant  grants  Prcxtniam  Pr^fentationetn^  and  dies  ; 
this  fhall  hold  Place  againft  the  King,  and  the  Billiop  may  prefent  by 
Lapfe  upon  the  King  before  Office  toiind ;  but  when  Office  is  found,  the 
Kin^  Ihail  have  the  Prefentment,  and  the  Incumbent  ihall  be  removed. 
Br.  rreleutation,  pi.  24.  cites  14  H.  7.  21, 


(Z.  b)     Lapfe.     To  njohnm  it  lliall  accrue   [for  a  Col- 
lateral  Refpeci.] 

I*  Tir  a  Q5CtrOpOlitatt  Archbifliop  vilks  an  inferior  Bilhop,  and  inhi-  Watr  Comp. 
•  y  bits  nim  during  the  Vilitation  H^  Hfual,  aUQ  aftCt  DUtniQ;  tIjC  I"c.8vo  194. 
©ifltfltlOn  anD  JnijibltiOn,  ann  before  any  Releale  made  by  the  Arch-  "F,'^  "^"^ 
bilhop,  -a  Lapfe  incurs  to  the  Ordinary  ;  tf)0'  tlje  !act0  Of  JUtiSirilCtlOtt 

Of  tl)c  £)rDuiarp  are  fufpcnocn  ouririo;  tlje  ©ifitatian,  fo  that  fjc  can= 
not  niftEtutc  W  Cicrfe,  j^ct  I)c  tljall  ija^jc  15cncfit  of tbc  lapfe  anu  not 
tIjC  Ctrcijbiflicp,  but  \)t  fijall  collate  to  tbe  accljbiUjop,  aiiD  Ijc  ouuijt 
to  inffitutc  1)10  Clcrlw  Cnn.  13  Car*  15.  E.  bctuiecn  Dodfon  a»<i 
i^yan.   ^recti  bp  tljc  €ii3ilwn0  \\\  tljctr  argunientss* 

2.  3f  a  QSllljOp  Die0,  bl)  UlljlCO  tlje  Temporalties  are  in  the  Hands  of  i,- the  Lapfe 
the  King,  if  during  this  I'ime  Tempus  Semcltre  pailes,  bP  tUljtCi)  a  incur,  and 
Lapfe  Ijappend,   tbC  King  fljall  XyC^t  it,  anu  not  the  Guardian  of  the  then  the 
bpiiimahies.     "i^VaftOnj  lib*  5,  fCl,  404*  <©,  10.  ]X^ZXZ\\\  1)10  WX\t  It ^f  k f' '''"' 


'^Jftfentation. 

and  not  "the ''i^,'"*^*^"''   ^'"'"  ^obis  &tniiver/Is   dc  R  r^rm      K'a ^ ~— 

Rep.  £44  3»JftfjC  Patron prefents  and  hJc  ri^  i   •   r    ,. 

J^Ietropoiitan.     Hob   r,-i    \r,  .\  t 

S  p  Br  Pie  ir    i 


fy,  pi.  1 5. 

cites  Doer 
&^tud.   lib. 
2.514. 

S.  P.  Be- 

csufe  it  is 

bat  a  incer 

Trull  in 

Law, and 

ba'inoRc-  "  ■^-  "/•  pi.  103 

'y)  c.ip.  12.  ctcs  s.  c. 


Hhoioeverhebe.     Noy  69.  Anon:  Culs^Dl/^f '^^^  ^^'^^^  P-^enr 


fA,  c)     Lapfe.     In  what  Cafes  aJf^r   T      r    • 
man  be  A7/(;t7/  ^w^;. 

i4edS"pi!  '^  I"?f  "tctirs  to  tt)t  SDmnm  vet  imr  p 


pretends   to  be  Patro'n  ;  Cn^L     It}'^'  \'  ^""^''^  "-fo^t^e  Vrif  uTch    .■^^■'''  ''"^^  %-^' 
10  Elr.  Anon -Vfeb  f  ."'"'f '  "'^^'•^'-  ^''"'^  P-J"'-t  rh^g  nV  f  D  "  '^'^--^'i.  ^"S'^' 


2*  Bur 


les 


Prelentation.  ^bp 

2    But  if  tIjC  Ordinary  collates  lip  lapft,   ailH  flftCr  und  belbre  In-  n^y^.^^ 
duaion  the  *  Patron  prclents,  tl}€  ©rDlltarP  tjS  UOt  DOllltn  tO  rCCCfoe  ^J^^^^^^ 

ftinu  D»  10  (£U  277. 56. 

3.  3if  pending  a  C)uarc  Impedit  Lflpft  mCtir0  tO  tl)e  Ordinary  tUljO  Br.  (^uare 
tg  not  named  in  the  vV  rit,  flnD  tl)C  Pimntlff  6ill3  VVrit  to  the  Bilhop,  Impcdit    pi. 

iit  UJljicij  timetI)cCi)urcl)id  not  full,  j^ct  if  tije  OuUitiarj)  collates  55  ^«*-^i><- 

before  the  Receipt  ot  the  V\  rit,  1)13  ClCCU  fljilU  ttOt  Dc  IXmCiUCO*  n 
f),  4.  80.  p    p. 

'  4    Jf  InpH:  in^^urs  to  the  Inferior  Ordinary,  atltl  within  his  6  Months  j^  s'^''^  , 
after  the  Superior  Ordinary  collates,  bj?  lUljlClJ  tljC  CljUtC!)  IS  fill!,  VZt  53.  ci-l'^ 
if  the  Parron  prefents  his  Clerk  within  thole   6  Months,  IjC  OUgljt  tO  DS  C — WaiC 

receiUrti  i  jfor  tijc  Collation  of  tfjc  q^ctropoUtan  is  tortious,  ann  a  p'"'?-  if- 
Collation  fijall  not  put  tiic  pavtp  to  a  ^nuntj;  Impcoit,  aiio  ti)m- ^l^\l^%, 
fare  tW  tortious  collation  agaitut  t(je  liJatron  is,  as  it  nj  Co!la=  s.  c. " 
tion  Dan  beat.    Dubitatur.  n  p.  +  ^°-  uiljcrcit  is  objmxo,  tljat 
tbc  Cort  is  bct'iuccu  tijc  iDrDiiuui'  anQ  tIjc  q9ctropoitta?t,  ano  not  to 
tlje l^Jatron.  ,   .      „^    , 

5-  Jitljt  Ordinary  collates  within  the  6  Months,  and  after  6  Months 
pafs    vet  tljC  Patron  may  prefent  betore  a  new  Collation  bP  tljZ   iDtUU 

narpi  for  tiic  ftra  Collation  mas  bp  'STott,  ann  tosrefore  cannot  iH' 
come  Emijtfuli  ann  tlje  ficit  docs  not  puttljc  j^ucon  to  ois  QXUd^.z 
3mpenit,"bccaurcitU)asbut  nprobtrion  for  ttje^iaiv,  mi\}  tiy:ct'- 
fore  tijere  ougljt  to  be  a  55eio  act  bcrore  it  Rjail  be  a  ijooa  Ciiiia= 

6.*3if  tlje  Ordinary  collates,  and  his  Clerk  is  inftituted  and  inducled  WatfComp.- 
within  the  6  Months  of  the  Lapfe  incurred  to  the  .Metropolitan,  ailD  \'^;^^^.^„  ,, 

after  his  6  CBmitbS  toljicb  Ije  Ijimfeif  Ijan  arcpalTrbi  tbougi)  tDiSc.  's/c.- 
Coiiation  be  tortious  ta  tijc  ^Metropolitan,  petit  leems/djisfi  toss  u,- fi'it<j 
fiiall  take  auiap  tije  J^refcntatioti  of  tlje  patron  fa  tm  l)t  fijail  not  ;^i;i;;'^'-7'e 
prelcnt.   ^unmier  vacation  at  tlje  amies  in  tlje  Couiity  ci€>a>£;?^;° 

nierfet,  between  Sir  Francis  Pcpham  J^laiUtlft,  diid  the  Bijfjrf  of  B^-th  ■Yn]^  to  pi-e- 

aiidn'eiis  and  his  Son  Defcubants  iu  »  duate  Iniproit  t!)is  loas  a  fcnr  i.de-  . 
Ciueilion,  but  fo  bclo  bv  tlje  loro  ifincij,  tlje  %mt  of  tbc  afOa:s  i  ^f'ii^f 
for  tl)ere  teas  a  Eigljt  of  Collation,   anb  tljouBD  Ins  iii^une  m^-^^t'S' 
paRfO,  pet  this  refts  onlp  betuicen  Ijim  anb  tljc  iijetropoUtan,  aub  Kir.g  if  the 
an  iirutpation  onlp  to  tljc^  cpetropolitan.  Bipo^coUates 

^  thkii^h  the 

Riffhi  he  p^feil,  and  His  Incumbent  be  in,  the  Patron  by  Quai-e  Impedit  fhall  not  remove  him  ;  bccaufe 
hi«  Poflcfficn  is  not  taken  away  ;  for  the  Collation  does  not  toll  the  PolTcQion  of  a  Patron,  as  a  1  refcnt- 
ment  ftiall  do,  forbv  this  the  Wrong  is  done  to  the  Metropolitan  or  the  Kin;;,  ard  not  to  the  Patron 
Asifthe  Jrrhbfpopprefetits  within  the  6  Montis  to  the  Bijlop  hi  the  Phtce  of  the  }!'Jhp,  the  Patron  Ihall 
not  have  Quare  Impedit  thereupon,  becaufe  the  Church  is  full  by  one  who  does  it  Jm-e  Epijiop.ili  -k  C)f- 
ficer  and  bv  Colour  of  this  ;  bu:  if  any  Sf.-antier  who  has  no  Colour  prefents,  it  ^^  ocherwile  ;  tor  by 
tliis  the  ITia'l  be  put  out  of  Poffeffion  ;  Per  Dyer  ai>d  Walfhe  J    bat  Wefton  and  tlu-  Ser- 

jeants contra  in  bnth  Cafes  ;  for  by  prefenting  an  Autcr  Temps  they  are  Dillurbers  as  atiy  Strangen 
Dal.  50.  iJl.  9   6  Elii.  Anon.  ,  -    ^    ,,  ,  ■   _,   i      a     l 

The  JrM'M  has  a  Title  to  collate  hy  Lapfe ;  the  Bipof  collates  h^jore  him,  tins  ihiU  bind  the  Arch- 
tifliop-  for  at  Common  Law  when  a  Clerk  was  once  admitted,  he  was  not  removcable  ;  and  Collation 
nmain's  at  Common  Lanv.  Weft.  2.  helps  only  in  Cafe  ol  Prefentation   Jenk.  281    pi.  7. 


(B.  c)  Lapfe  to  the  K/v^.     [In  what  Cafes ;  And  in  what 

Cales  taken  away.] 

I-  T  rJDC  in  Caftoftbe  Kinn;  toben  lapfe  mav  be  taken  away"  ifthe  Ar,«? 
V   ^taniforo  3  prcrosatibc,  title  aouoiufonv  h.s Tuie to 

'  prclcnt  by 

Lapfe,  or  by  Outlawry,  or  Wardfhip,  and  does  not  prefent  in  his  Turn,  he  Ihall  lofe  it.  Cro.  J.  54. 
the  King  v    BiiTiop  of  Wirtton  and  Campion. 

5  F  2.  K 


Q^o  Prcfcntation. 


ThePatmn-s    2.  Jf  tiipfc  towt^  to  tijc  ^(115  fot  Dcfault  of  tijc  ©rHinnr)?  ann 

Title  con-     ^BCttCpOlltilll,  if  tIjC  Patron  prcieius  lo  the  King  belore  any    Peilon  is 
tiuucs  a-       prtiented  by  him,  VCt  t\)t  I^UIO;  Id  UOt  fcOUnt)  tO  rCCClUC  1)1111  ;  JfOt  tlje 

ordinlrv    prcfcntiUioii  bcmg  once  fcttlcn  in  tt)e  iaing,  fljaU  not  be  DeUellcii, 

a,.athe         OUbltiltlin     D,  ioeU277.  55. 

King  till 

the  Lapfe  is  executed.  Hob  nz.  in  Cafe  of  Colt  v.  Glover. But   Doderidf^e    J.   f.iid.  That   the 


Pati-on  canr.ot  pi-clcnt  atT,,in!t  the  King,  bccaufc  he  has  the  Lapl'c  not  as  Ordiiiavy,   but  as   Patron.  Mo 

ooo.  in   Cafe  of  Colt  v.  Glover. Though  the  6  Months  pafs,  yet  if  the  Patron  prejeiils,  the  Bifh- 

OP  oucht  to  admit,  though  it  be  after  'title  devolved  to  the  Metrofchtr.r:;  and   this  the  Court    held  clearly  ; 


s.c  cited      V  Sftcr  a  Lapfc  incurrcn  to  tijc  jt^ing  for  Dcfiuilt  of  tlje  Qt^im^ 

Boll.  R        tP  nntl  JgCtropOiltan,  tf  tljC  Patron  prclcnts,  and  his  Clerk  is  induit- 

460,  in  Cafe  ^-^^  };ct  tljiis  ttjail  itijt  tofl  ti}£  iapfc  ftomtljc  jtxing,  but  (je  maprc= 

Glover  ~  tlUJ^C  !)»«  J^P    ^^I'i^-^^  3mp£5lt*     Co.  7-  Baska-vtli  28.  aHuilttCO.  27 

i\io.  260      e*  3-  ^5-  aouogco.  Dubitatur*  D*  277-  ss- 

cites  it  as  fo 

adiudged  inthe  Cafe  of  Rirdleton  v.  Thornwcll.. D.  i-v  Marg.  pi.   5^.  S.  P. Gibb.  57.  m 

the  Iloufc  of  Peers     The  King  v.    the  Archbifliop  of  Arm.igh  and  Whaley. 

The  ^teen  had  .1  Title  toprefetit  hy  Lapfe,  but  before  flie  prefentcd  a  Clerk,  the  Patror? pre/eated  E.  who 
ni-.TS  admitted,  inllituted  and  indncied,  and  died.  The  Qiiecn  has  loft  her  Prcfcntation,  becaufe  fhe 
bad  I'n-.'m  &  I'ricam  Prx'eriatioreni  hac  \'ite,  which  cannot  extend  to  the  lecond  Avoidance,  other- 
^ifc  Ihe  may  fufter  one  or  more  Strangers  to  prefcnt,  and  take  her  Turn  when  (he  pleafe  ;  and  the  i"/;?- 
tiite  de  PrercgalivaV.ccS'^,  which  enafts,  that  Nullum  Tempus  occurrit  Regi,  »i«/?  fe /K/fWerf  whan  the 
K  ing  has  an  Intercfi  permanent  and  certain,  and  not  when  it  is  ftecially  limited  'U.-hen  and  how  he  pal!  take 
Ahd  net  ctleiiiijp  ;  For  the  Time  is  the  iubftance  of  hjs  Title  ;  and  in  fuch  Cafe  Tempus  Occurrit  Re- 

"i,  -  Rep.  zS.Trin.  z-  HH?..  Ba.skervills  Cali, Ibid,  fays  the  fame  was  ad/udged,  Pafch.   ;8  E- 

hr..  C.  B.  between  Beverley  and  Cornwal. S.  P.  Mo  269.  Beverley  v  Cornwall And.  148 

i.e. S.  P.  Arg  Show  425. 

If  the  Dean        4    Jf  lapfC  COn*C0  tO  t\jt  I%mD;  to  prefent  a   Prebendary  of  his  free 

cfijeistng-s  Chapel,  bciatifc  ti)c  Dean  tijercof  laotjis  not  collate  tfjcreto  mim6 

free  Chapel     c^onfljS,  0110  aftCt  before  the  King  prelents  the  Dean  collates,  pff  tlie 

IhePnfZ,  laing  fijall  Dabc  It,  ann  fljall  remote  ttjc  Cieck*  27  €.  3  HX  sS* 

rxithtnfix     juogeo* 

Months,  the 

King  fliall  give  them      Br.  Prerogative,  pi- 129.  cites  F.  N.  B.  fol.  5; .■^wrfif  the  Temporaitiis 

cf  a  Bifliop  are  in  the  Hands  of  the  KiY.tr,  and  Advowfon  becomes  void,  and  the  Bifhop  and  Patron  do 
not  prefent  within  6  Months,  the  King  Iball  prefent  as  the  Bifliop  Ihould  do  if  there  was  a  Bilhoi* 
there.     Ibid. Br.  Quare  Impedit,  pi.  156.  cites  F.  N.  B.fol.  34.  S.  C. 

iftheKi«g     5.  jf  a  Lapfe  incutjiX  to  tbel^ing  for  Dcfault  of  tlje  €)rliuia^ 

has  a  Title  xX>  anti  ajetropolttau,  ann  after  tbe  Ordinary  collaces,  and  his  Clerk  is 
l°^7   ard    i'lltituted  and  induaed,  tljC  UlfjICl)  ClCtl?  fO  dies  feifed  of  the  Church, 

th'^patron  itfccni0  tljc  IRtnff  map  prefent,  for  tlje  lapfe  De^olbeti  to  liim  i  Jfot 
prefents,  vet  It  fcciti0  tljc  Cljutclj  Uia0  ucbcr  fuU,  ncitbcr  againft  tbc  patron  not 
the  Kingrnay  aixnuift  tljc  l^tnD;,  ui  assnnicb  a0  tlje  coilation  of  tljeS^rcinan)  gnni0 
^^12  ""J  i?ofl"cifton  asainft  tlje  ming,  but  tlje  ming  niigbt  babe  ptcfcntco 
as  that  Pre-  Untljout  bclug  put  to  W  ?!M\m  Jnipemt;  ano  it  feenis  tlint  tijc 
fentce  is  In-  cijurclj  UJajs  HOt  full  afiauiil  tlje  {Matron.   CBut  £iua;re  tljisf.) 

eiimhent  Cro. 

J.  216.  Hill.  6  Jac.  B.  R..  Cumber  v.  the  Bifhop  of  Chichcfter  and  Groen. 

6.  When  the  Queen's  Prefentee  by  Lapfe  has  loji  the  Incmnhency  hy  ill 
f  leadings  which  he  may  do  as  well  as  by  Relignation  or  Depri\ation 
yet  the  fame  Ihall  not  turn  to  the  Advantage  ol;  the  .Siieen  ;  For  v\here 
the  Qiieen  prefents  for  Lapfe,  and  her  Clerk  is  inliituted  and  inducted 
flie  has  no  more   to  do,  but  the //;f//;«/r«f  nitif-  Jltft  as  well  as   he  can 
for  the  holding  f^ftt  ;  For  by  what  Manner  foever  h'e  lofes  his  Ineumbeitcy 


Prefentation. 


391 


tht  ^leen  ftjall  not  frcfait  again.     Otherwile  it"  the  Queen  be  Patron.  Le. 
194,  Alich.  31  &  32E]iz.  C.  B.Arundel  v.  Bp.  ofGlouceller  andChaffin. 

7.  Quare  impedit  i  the   Cafe   was,  alter  Lapfc  incurred  to   the  ^>^!ieen  Mo  259.pl. 
the  Bijhop  hdng   Patron    prcfented,  and  afterwards   the  .Sitcce[Jor  of  the  4-''-  ^- <^- 
Eipop  certified^  that  this  Licianbent  had  refttfed  to  pay  the  Te>iths,  and  that  Bifhop  bdnc 
the  Bilhop  collated  the  Defendant  who  was  tndiKled  ;  the  Queen  brought  l'atr..nand 

a  Quare  Impedit,  and  it  was  adjudged,  that  the   Queen   Had  not  loit  Ordinary 
her  Frefentation,  but  if  the  Incumbent  had  died  it  were  ocherwife  -,  for  J"";''''^  '-*• 
here  the  Church  became  \uid  by  the  Incumbent's  own  Aii ;   fb  ii'  he  had  took  ^noti^'*' 
religncd  or  been  deprived  ;  and  it  v\ould  be   inconvenient  it'  the  Queen  Benefice 
fhould  lofe  her  Prelentment  by   the  Incumbent's  own  AcV.     Cro.  i£liz.  without 
119,  120.  Mich.  30  &  31  Eliz.  B.  R..  the  Queen  v.  the  Bilhop  ot  Lin-  Q.'-*'''''"- 
col»^ndLigh.  --;],-- 

avoided  ;  but 
nothing  was  done  thereupon  till  iS  Eliz.  when  C  Bifliop  of  Lincoln  prefented  again  one  ii.  but  Non 
Conrtat,  whether  by  Dc.itli,  Avoidince,  or  Refignation.  Afterwards  E.  being  in,  C.  was  removed 
to  \A"incherter.  F.  the  Succcffor  Bifliop  cenihcd,  that  E.  did  not  pay  the  Tenths,  whereby  the 
Church  avoided,  and  theieupon  F.  collated  Lee.  The  (>iicftion  was,  if  the  Qjieen  mi<'ht  now  re- 
move Lee,  aud  fo  have  her  Prefentment  which  accrued  by  Lapic  upon  Avoidance  of  D.  who  took  an- 
other benefice  without  Plurality  [Qualification]  ?  In  arguinj^  this  Cafe,  the  Ca*e  of  HniDtetOll  U, 
2Cl)0riUtl'ill  was  agreed,  Th.u  if  Lapfe  is  devolved  to  the  Qiicen,  and  a  Strjneer  f  rejects,  and  the  if- 
cumbent  dies,  the  Queen  fhall  not  take  the  next  Prefentation  ;  But  fonie  faid,  there  was  a  L)  tilrence  if 
the  Incumbent  ♦  religns,  becaufc  Refignation  may  be  by  Cnhi  to  defraud  the  (.^ueen,  As  if  Lapfe  ac- 
crues to  the  Queen,  and  then  the  Paaon  prefcnts  by  Covin,  that  the  Incumbent  ih.jll  refign,  ^nd  fo 
Prefe>itnie>it  ihM  atcriie  U  the  P.itnn  upon  a  nciu  Jvoidancc,  atid  the  ^<een  he  barred  oj' her  old  Lapje 
which  is  not  reafonabble.  Others  faid.  That  in  fuch  Cafe  the  Covin  ought  to  be  averred  ;  But  tlijy 
agreed,  That  no  Cotin  is  intendahle  upon  this  Certificate  ;  bccatife  it  is  a  'judicial  JH,  which  tiic  Bifliop 
niuft  make  by  Command  of  an  A£t  ot  I'arliament,  as  of  Deprivation,  which  he  muft  do  by  the  Laws  of 
the  Cliurch  as  Judge.     And  the  Jurtices  inclined  againft  the  Queen      Kotwithllaidici' which,   it  was 

afterwards  adjudged  for  the  Queen  againft  the  Bifhop. S.  C.  Goldsb.   5;.   pi.   f  •%.  pi.  10.   Sj 

pi.  4.  and  S6.  pi.  9.   Judgment  was  given  for  the  (.Jueen. Ow.  S9    (;o.   S.   C    adjudged   for   the 

Queen 4Le.95  pi.  195.  S.  C.  adjudjred. *  In  the  Cafe  of  v^mnbit  ;;.  fl)t  ©itljOp^Of  i_:)i:l!ft 

tcr  ailD  OrtnU  Cra  J-  ii6.  pi.  2.  Hill.  6  Jac.  B.  R.  It  was  held,  that  by  Death  or  Rell-natiori  be- 
fore the  King  in  fuch  Cafe  has  prefented,  his  Prefentment  was  lolf,  unlcfs  it  be  by  Covin  to  takea- 
way his  Title,  in  which  Cafe  he  fhall  have  his  Prefentment.  But  that  if  the  P.ir/c.w  dies  or  rehar.s  the 
fii-fl  Benefice,  and  the  Patron  frefents,  and  this  PfefeMee  rejigm  upon  Csii/i  or  dies,  the  King  has  loll 
that  Prefentment ;  for  Lapfe  is  but  Unica  I'roxima  Vice. 

8.  P.  was  7t:/W/7?/br  Z//e  of  an  Adv'owfon,  Remainihr  in  Fee  to  A. 

P.  prefented  his  Clerk,  who  was  admitted,  inllituted  and  iudatied  i  but 
by  the  Statute  13  Eliz..  the  Benefice  was  void  lor  want  of  reading  the 
o^<)  Articles ;  however,  he  continued  in  the  Churchy  and  by  Reputation 
was  Parfon  during  his  Lite ;  Afterwards  P.  died,  and  then  the  Incum- 
bent died;  then  t\it  .^leen  reciting  her  Title  to  prelent  by  Lapfe,  pre- 
fented her  Clerk,  who  was  admitted,  inltituted  and  tnduSed ;  and"  A. 
prefented  his  Clerk  who  was  admitted  &c.  No  Notice  -was  ever  given  to  P. 
of  the  Avoidance  for  Not  Reading  &c.  Adjudged,  that  the  Queen's  Pre- 
ftntation  was  void,  and  that  the  other  was  good,  though  ii  wa^  object- 
ed, that  it  belonged  to  the  Executors  of  P.  becaufe  as  to  P.  himlelf, 
the  Church  was  full  till  Notice.  Yelv.  7.  Trin.  44  Eliz..  B.  R.  Grendic 
V.  Baker. 

9.  If  a  Chtirch  becomes  void  by  Acceptance  of  a  2d.  Benefice  with  Cure,  Jo  ^^4.  S. 

and  continues  void  feveral  Years  by  Lapfe  ;;/  the  Tune  of  one  King^  who  ^ ^^^^• 

dies.,  the  ■^ueccfor  of  the  King  may  prefcnt,  and  is  not  retrained  by  the  \^^^  Re^'~" 
Statute  25  E.  3.  I.  For  by  the  exprefs  Words  of  the  Statute,  All  Rights  z-^y  -oi  S. 
and  Titles  to  prcfcnt  in  his  own  Time  until  before  this  Statute,  and  m  hisC 

'Time  after,  and  all  his  Heirs,  after  the  Death  of  K.  3  are  ftved ;  And  it 
Ihall  not  bar  the  Titles  which  the  King  had  in  another's  Right  lallea, 
or  to  tall  in  his  own  Timp,  or  in  the  Time  of  his  Heirs  ^  And  that  there 
was  fuch  a  Sa\iiig  appeared  by  the  Copy  out  of  the  Parliament  Roll, 
and  by  an  ancient  Book  in  the  Exchequer  wrote  in  Parchment,  which 
hjs  I'uch  a  Saving;  Per  all  the  Jultices  and  Barons  bclides  Vernon. 
K\.d  they  held,  that  the  Words  in  the  faid  Statute  (of  old  Tales)  is  in- 
tended in  the  Time  of  the  Progenitors  of  £.  3.  and  not  of  any  Titles 

of 


^92  Prdentation. 


ol  pjelciitir.cnts  to  ikll  in  the  time  of  E.  3.  or  of  any  of  his  Heirs,  but 
iiuended  toexcludeE.  3.  and  all  his  Heirs  from  Tides  otPrefentution 
in  othtrs  Right  laJIen  before  tlie  Time  of  E.  3.  whereof  any  Church 
was  tull,  and  which  Title  is  only  in  Another's  Right;  and  thattlie 
esprcfs  Intent  nftkat  Statute  was  to  take  away  the  Statute  of  14  E.  3.  cap. 
2.  i»  this  Po.'fjt.  Cro.  C.  354.  Hill.  9  Car  in  Cam.  Scacc.  The  King  /, 
Prylt   and  the  Archbilhop  of  Canterburv'. 


(B.  c.  z)  In  what  Cafes  Lapfe  fhall  be  to    the  King  or 

O thers  •  and  c:/.v?^  mi)'  be  dom  ajttr. 

1.  T"  TIDE  iTiany  Precedents,  that  by   Determination  of  Commendams 
\     Rctifure,  be   it    by   Deaths  kep gnat  ion  ^  'tranjlation^  or  Promo- 
tion^ it   belongs  to  the  King  to  prefent.    Noy.  138. And  it  is 

faid  there,  that  there  are  infinite  Numbers  oi  luch  Precedents.  '  ^ 

2.  In  the  Time  of  H.  3.  there  were  in  Com.  Northampt.  2  Reilories^ 
fc.  Maid  well  and  Kclmarlh,  whereof  there  were  2  Pirr/ro^j ;  Afterwards 
the  Patron  of  M.  in  the  Time  of  H.  3.  purchafcd  the  Advowfon  or  K.  and 
always  after  they  were  come  into  one  Hand  the  Purchafer  frefented  only  to 
the  Church  of  AJ.  cam  Capella  de  K.  it  as  appears  by  the  Biliiop's  Regif- 
ter.  The  Queen  preiented  B.  who  brought  Bill  in  the  Exchequer  againlt 
the  Incumbent  ot  Maidweil,  who  occupied  the  Glebe  of  K.  'Twas  de- 
creed for  B.  that  iho'  the  Patron  of  M.  alter  his  Purchafe  had  prefented 
only  to  Maidwell,  yet  K.  remain'd  a- Church  in  Right,  and  the  Frank- 
tenement  is  in  Suipence  and  not  in  the  Patron  of  AJ.  as  a  Diileiior.  For 
Entry  of  the  Patron  in  the  Time  of  Vacation  is  no  Tort  nor  gains  any 
Franktenement.  Per  tot.  Cur.  Savili7.  pi.  46.  Pafch.  22EI1Z.  Lewis 
V.  Predrech. 

3.  If  after  Alienation  in  Mortmain  the  Church  voids,  and  the  Abbot 
prefents  and  6  Months  pafs,  the  Lord  at  any  Time  within  the  Year  inay 
remo\e  the  Incumbent ;  for  the  A£l  of  Parliament  gives  all  this  Time  to 
the  Lord  to  enter,  and  therefore  when  he  ptirfiies  the  Statute  no  Laches 
ftall  be  imputed  to  him.  D.  2j.  b.  Marg.  cites  it  adjudg'd,  Mich.  19. 
Jac.   C.B. 

4.  When  a  Lapfe  is  in  the  King  he  is  not  compellable  to  prefent,  and 
'till  he  prcfciHs  the  Ordinary  has  the  Cure  De  Animis,  and  he  Ihall  pro- 
vide for  it  i  fo  the  DiHerence  is  between  the  Ctirajiniuiariim  and  zhQ  Pa- 
tronage. Per  Dodcridge  J.  Roll.  R.  464.  Trin.  14  Jac.  in  Cam-Scacc* 
in  the  Cafe  of  Colt  v.  Glover. 

5.  The  King  can't  gratit  over  a  Prefentation  which  he  has  by  Lapfe. 
Per  Croke  J.  Roll.  R.  467.  in  the  Cafe  of  Cole  v.  Glover,  cites  D.  18 
Eliz.  239.  and  4  Eliz. 


(B.  c.  3)     Pleadings  in  Cafe  of  Lapfe. 

InQuarc       I.  2$  E.  3.  Stat.  3.  TT^NACTS  that  when  the  Ordinary  prefents  hy  Lapfe, 
Impedit  ^^ap.  7.  f' j  and  the  King  takes  the  Suit  agatnji  the  Patron.^ 

-^d^N  ^      '''^^°  "^  Deceit  fuffcrs  the  King  to  recover  ;   In  this  Cafe,  when  the  King's 
theA'/M^.and  Right  is  not  tricd,the  Ordinary  Or  Incumbent  may  counterplead  the  Kings  Dtle. 

coienttd  that  n  p  1  rr 

•T.  was  [eifeA  of  the  Manor  and  AdvoKfon,  and  prefented  one  P  and  f  mm  T.  H  defcended  to  R.  as  Son  and  Heir, 
avd  that  R.  adl^er'd  hiwfelf  to  the  Enemies  of  the  King  in  Scctiavd,  by  -which  he  was  otitla'i^'d  ;  and  theClmch 
ded  by  Reti^nalicn,  and  the  Kinj^  fei/ed  the  Manor  and  Jdvowfm,  and^efented  &c.  and  is  aillurb'd.  Chelre 
■'      ■'^  demanded 


at: 
vol, 


Prefentation. 


393 


demanded  Judgment  of  tlic  Count ;  for  it  does  not  appear  if  the  Aiw,?  had  Tevure  of  the  Manor  a>u{  Mvon-- 
fon  or  Aumim  et  Faflitru  et  non  Allocatui-.  Chc-lre,  Judgment  of  the  Count ;  for  it  docs  not  appear  if  tht 
Jii'vo'-j-fon  was  apferidarit  or  not,  ct  non  Allocatur.  And  after,  Jll  except  If.  pkaeieci  Ke  i^i/liirba  pas,  and  W. 
tie  hicunibevt  pleaded,  That  the  fame  R.  •whoivas  onttaiivd,  a  lon^  'Time  before  the  Otirlar'-xry,  leas' d  the 
Manor  and  the  Adwtifon  to  J.  S.  for  Life,  the  Remaitider  to  T.  in  Fee,  and  A.  prefentcd  this  fame  U' .  ivho  lias 
received  and  mfliiiiied,  Ablque  hoc  that  R .  had  any  Thing  the  Day  of  the  Felony,  or  after,  Prilf,  Judg- 
ment if  any  Dillurba!-.ce,  Prill  &c.  The  King  pleaded  Efioppel,  that  it  was  pound  h)  Ojfcr,  that  R.  was  feifed 
■the  Day  oj  the  Fi-lsn\  ;  And  fie  in  Reniainder  after  the  Death  of  A.  travers'd  the  Office  in  this  Point,  and  found 
a^^ainfi  him.  Judgment  if  agaiiill  thi;,  Matter  found  ngainft  the  Patron  he  fhall  be  received  ;  and  becaufe 
the  Statute  dees  not  oive,  that  the  Inciimhent  Jhall  Le  received  hut  where  the  Patron  fleadi  faintly  ;  and  when 
he  traverles,  and  it  i';  found  againrt  him,  this  is  not  faintly,  and  lb  he  and  the  Incumbent  ertopp'd ;  and 
becaufe  that  which  is  fourd  againll  the  Patron  fliall  be  try'd  by  tiie  Incumbent  again,  and  he  claims  by 
the  Patron,  therefore  he  fliall  be  bound  by  tiiat  which  binds  the  Patron  ;  by  which  it  was  awarded,  that 
the  King  have  Writ  to  the  Bifliop.     Br.  Qiiare  Impedit,  pi.  66,  cites  58  E.  5.  31. 


(C.  c)     Vfirpatiofi.     The  EffS. 

I.  TT^  il^IJO  UfUrplS  gains  the  Fee  tljcrcbp*    9  ti.  6.  30.  b.  3U         Watr.Comn. 

|~1  Inc.  Svo. 

-■-  -^  284   cap.  1;,    cites  S.  C. •  Ufurpation  ^/j;?;i  the  Church,  fo  that  the  Adi'owfon can't  be 

granted  over.     Cro.  E    81 1.  in  the  Cafe  of  Leak  v.  the  Bifhop  of  Coventry  and  Babi-^gton. .  Jj  [» 

Watf  Comp.  Inc.  Svo.  zzz,  cap.  13. 

2.  If  an  Infant^  fetfed  of  a  Manor  with  Jdvowfon  appendant,  ftiffers  Ufnr-  So  if  the  ^e- 
pation,  and  after  he  makes  Feoffment  oj  the  Manor  cum  ^crttnenUis^  nci-  «•""./'"■/-(,'(', 
ther  the  Feolfee  nor  the  Feoffor  has  any  Remedy  of  the  Lfurpation.     Br.  V""     '""^'T" 

_,..,-.,„  ^  ■  r  der  over,  fui- 

Prelentation,  pi.  62,  cues  16  £.  3.  jers  Cfurpaii- 

on  and  dies, 

he  in  Remainder  is  without  Remedy  of  the  Ufurpation.    Ibid. 

3.  If  I  grant  jidvowfon  to  a  Par  fon  and  his  Siiccejfors,  and  the  Church 
voids ^  and  a  Stranger  prefents  his  Clerk^  who  is  mfiititted  and  tndiitted^ 
and  the  6  Months  pafs,  he  has  loll  the  Advowfon  for  ever  ;  for  the  Par- 
fon  cannot  ha-ve  Writ  oj  Right ^  becdiije  neither  he  nor  any  of  his  Predecijjors 
•were  thereof  feijed ;  and  he  can  not  have  .Ghi  are  Impedit,  becaufe  the  6  Alonths 
are  pafs'd ;  and  he  can  not  have  Alhze  ot  Darrien  Prejentment,  tor  he  never 
prefentedy  and  this  Lachelle  lliall  bind  the  Succellbr  for  ever.  Br.  Prelen- 
tation,  pi.  20,  cites  19  H.  6.  40.  Per  Afcue  J.  Quod  non  Negatur. 

4.  If  the  ¥s.iu^  confirms  the  Fcztrunage  of  an  Ufurper  that  has  prclenced 
feveral Times,  and  the  leveral  Clerks  indutted,  fuch  Contirmation  is  void, 
for  the  Ufurper  has  no  Patronage  ;  but  if  the  King  confirms  the  Inciim- 
Ipent  'tis  good  to  the  Incumbeni,  lor  he  is  Incumbent  de  fatto,  and  the 
King  can't  remove  him  without  Quare  impedit  by  the  Stat.  2j  K.  3.  13 
R.  2.  Jenk.  312,  pi.  96. 

5.  ll  a  Man  prelent  by  Ufurpation  to  my  Advowfon  within  6  Alonths, 
\  may  hd.vt  3.  Ji)jiare  Impedit ;  hni  after  the  6  Months  if  the  Church  be- 
come void,  I  c^n't  prelent,  but  am  put  to  my  JVrit  oj  Right  ot  Advow- 
fon. And  if  a  Man  ulurps  on  the  King,  he  ia  put  to  his  Quare  impedit 
within  the  6  Months,  and  that  a  double  Ufurpation  on  the  King  puts 
him  to  hi.s  Writ  of  Right.  Godb.  263.  pi.  362.  Mich.  13  Jac.  C.  B, 
Anon. 


5  G  (C.  C.  1) 


394 


Prefentation. 


(C.  c.  2)     Ufurpation    at    Common   Ln<vo.     Ho'U}  ;    A72A 

Remedied  by  Statute. 

\  An  Affile  I.  13  YJ_  I.  JTfJHEREJSofJdvozvfniJs  of  Churches  there  le  but 
ofD;ui-eui  cap.  5.       VV    three  Onguial  Writs;' that  is  to  faj,    one  Writ  of 

no  Mancan"^  Right  afui  tivo  of  Poffcjfion^  ivhich  be  t  Darrein  Preientnienc  cuid  C^are 
luvc  witliout  Impedit. 

Prcjentweiif  ill  hi]  Kin  Time.      2  Inft.  556. 

It  appears  y///^/  hitherto  it  hath  been  tifcd  in  the  Reahu^  that  I'chen  any  having  no 

by  tins  Sta-  jj^^f^  /-^  prefent,  had  *  prefentcd  f  to  any  Church,  is:hofe  Clerk  ivas  ^  admitted^ 
cvc'-'v  Pre-  ^'''  ^^'^^  ^'''^■^  '^'^0'  P'^tron  could  not  recover  his  yidvo'-jujon  \\  bat  only  by  a  W'ric 
fcntiiiein  of  Right,  which Jhould  be  tried  by  Eattaii  or  by  Great  Afjtfe  i,  "whereby  Heirs 
which  was  within  ylge,  by  Frauds  or  elfe  by  Negligence  of  their  Wards,  and  Heirs  both 
admitted  ^f  Qy^^f  ^r;/^  Mean  KJtate,  by  Negligence  or  Fraud  ofT'cnants  by  the  Coiirtefy, 
thc^very^Pa-  J-Fowen  Tenants  in  Dower,  or  otherwife,  for  Term  of  Life,  or  for  2  ears,  or  m 
ti-onoutof  FeeTatl,  were  many  Tunes  diperited  of  their  Jdvozvfons,  or  at  leajt  (which 
PolTtOion  at  ^xias  the  better  j or  them)  were  driven  to  their  Writ  of  Right;  in  which  Cafe 
Common       hitherto  they  were  utterly  dilherited. 

Law ,  aiid  to  -'  -"      ^ 

his  Writ  of  Right  of  Advowfon.     Br.  Prefentation,  pi.  46. Br.  Plenany,  pi.  \6.  cites  S  C. By 

tlic  Order  of  thcConwion  Laiv,  if  ow?  had  prefented  to  a  Church  whereunto  he  had  m  Right,  and  the 
Billiop  had  admitted  and  inlf  itutcd  his  Clerk,  this  huumhert  could  not  be  removed  for  divers  Reafons  ; 
I  If,  for  that  he  c.itne  in  to  the  Church  by  a  judiciaUH  from  the  Bifhop,  C who  the  Law  intended,  Scrutaris 
Archivis,  to  do  Right)  the  Incumbent  could  not  he  removed  neither  by  Writ  of  Right  of  Advowfon,  nor 
AlTile  of  Darrein  Prcfemmcnt,  nor  Quare  Impedit,  only  the  Patron  fhould  recover  his  Advowfon  in  a 
Vv'iitof  Right  of  Advowfon,  which  by  the  Ufurpation  was  diveikd  from  him.  2dly,  That  by  the 
Common  Law,  in  every  Town  and  Pari  ill  there  ought  to  be  Perfona  Idonea,  and  this  appeaieth  by  the 
Words  of  the\^'ritof  Quare  Impedit  &c.  <^uod  permittat  prefentare  Idoneam  Perfonam  8;c.  And  <when 
the  Biilcp  had  admitted  him  Jh!e,  which  implied  that  he  was  Idonea  Perfona,  then  the  Law  had  its  final 
Intention,  viy..  That  the  Church  fhould  be  fufficiently  provided  for,  and  then  the  Church  ivas  /aid  to  Le 
Plena  &  Confulta,  5dly,  That  the  Incumbent  having  Curam  Amraarum  might  the  more  etfectually  and 
pcaceablv  intend  fo  great  Charge  the  Common  Law  provided.  That  aftir  Injtitution  he  jhculd  not  tefuLject 
to  a?:y  J^-lio>i,  to  be  renioved  a:  the  Suit  of  any  Common  Perfon,  t/ithout  all  Refpedt  of  Age,  Coverture, 
lmpriroi;ny--nt,  or  Non  fane  Memory,  and  without  Regard  of  Title,  either  by  Defcent  or  Purchale,  or 
of  anv  ElKite ;  wherein  you  may  (as  often  it  hath  been  laid)  oblerve,  what  Inconveniencies  follow  when 
the  ri'(f lit  InlUtution  of  the  Common  Law  is  not  oblerved.     a  Inli.  5  5  7 . 

*  By  this  Word  {frefehted)  it  appeareth  that  no  Ptenarty  doth  put  the  Patron,  that  hathTitle  to  prefent, 
out  of  Puflcffion,  but  only  PIcnarty  by  Prefentation  ;  but  Plenany  by  Collation  doth  put  him  that  had  Right 

to  collate  out  of  Polleflion.     2  Inft.  357. S.  P.  6  Rep.  9c.  in  Green's  Cafe. S.  P.  Cro.  E. 

20-.  Smallwood  v.  Bifhop  of  Coventry  and  Marfh. 

li  Ttihivt  for  rears  or  Guardian  m  Chrjalryhnu^  a  Quare  Impedit,  altho'  the  Defendant  hath  a  Writ 
to  the  Bifliop  acainft  the  Termor  or  Guardian,  and  his  Clerk  is  admitted,  inftituted  and  indudled,  not- 
withftanding  the  Tenant  of  the  Freehold  of  the  Advowfon  is  not  put  out  of  PofTeffion.  Note  a  Diver- 
fity  between  a  dfere  I'fr.rfation  and  him  that  comes  in  by  Courfe  of  Law.     2  Inft,  357. 

t  This  is  intend.-d  of  a  Church  Prefentattve.     2  Inif.  357. 

±  Albeit  that  .-Idniiffus  in  its  proper  Senfe  is,  When  the  Bilhop  upon  the  Examination  findeth  him  Able, 
("that  is)  Idonea  Pcrlona,  yet  here  it  is  taken  for  Infiituticn ;  for  here  is  implied  ad  eanderr.  Ecclefiatn,  and 
therefore  of  NecelTity  it  mud  be  here  taken  for  InlUtution,  and  the  rather  for  that  before  Inftitutioil 
the  rightful  Patron  is  not  put  out  of  Polfeflion.  And  it  is  to  be  oblerved,  that  by  the  Inltitation  the 
Church  as  to  all  Common  Perfons,  is  Plena  &  Confult.i  as  to  the  Spiritualty  ;  that  is  to  lay,  the  Cure  of- 
.Souls  •  for  when  the  Bifhop  doth  inftitute  him,  he  faith,  Inftituo  te  ad  tale  Bcneficium  £c  habere  Curam 
Animarum  &  accipe  Curam  tuam  &  meam ,  but  before  Induction  the  Parfoii  hath  »ot  the  Tewporaltits 
belonging  to  his  Rcdory.     2  Inft.  3  5S.  _  ,  .  ^.         ^ 

Put  the  Ciiurch  is  net  fall  againfl  the  King  before  Induftion,  becaulc  in  the  King's  C/c  Plenarty  ista 
be  intended  of  a  full  and  compleat  Plenarty  as  well  to  theTemporaltses  as  to  the  Spiritualties.  And  nota, 
prelent,  [Prelentations]  Admiliions,  Inftitutions  8cc.  are  the  Life  of  Advowfons ;  and  therefore,  if  Pa- 
trons fuVpcci-  that  the  Regifter  of  the  Bifhop  will  be  negligent  in  keeping  of  them,  he  may  have  a  Cer- 
tiorari to  the  Bifhop  to  certify  them  into  the  Chancery.     2  Inft.  35S. 

II  This  is  to  be  undcrftood  where  the  Patron  had  a  Fee  Simple,  and  that  he  or  fome  of  his  Anceftors 
had  prefentcd ;  hut  if  the  Patron  claimc.i  the  Fee  Simple  of  the  Advowfon  by  Purchafe,  and  had  never  fre- 
/«««',  tiiere  he  could  have  noWrit  of  Right  of  Advowfon,  but,  before  this  Statute,  had  loft  the  Advow- 
fon ;  And  likewife  if  Tenant  in  Tail  or  Tenant  for  Life  had  (uftered  any  Ufurpation,  they  had  been 
Bcniedilefs  bv  the  Corrmon  Law,  becaufe  they  could  have  no  Writ  of  Right.  2  Inft.  5  58 At  Com- 
mon Law  //  'Tenant  for  Life,  or  by  the  Courtefy,  or  in  Do^xer,  or  the  Guardian  or  Tenant  tn  Tail,  had  fuf- 
fcrcd  L'rerentnicnt ,  tho'e  put  him  in  Reierfloii,  or  the  Heir  to  his  If  rit  of  Right  of  Jdicivfoii ;  and  fo  as  to  the 
Fcn.e-,  .■•  the  Bc.rcn  haJf::^'eved  [Jiirpati.n ;  and  Ju  if  the  Difrop,  Jrchdeacon,  Parfon,  and  the  like,  had  fuf- 


Prefentation.  op^ 


fercd  Uiurp.ition;   and  thole  arc   remedy  Vi   by  tills  Stature,  and  that  the  Heir,   or  he  in  Rcver/iOT 

or  the  Feme  ov  SuccciW  Jhit/l  have  :^i,are  Impedit  at  the  next  JvcictaKce.     Br.  Prefentation   pi  a6  ! 

Br.  Plenarty,  pi.  K),  cites  S.  C  S.  P.  6  Rep.  50.  Mich  5  fac  BR.  in  BofwellVs  Cafe.     "     "*  ' 

If  a  liif.)ot,,  .Mot,  or  Prior  &c.  punhafe  an  Advowfon,  a»d  'jhffey  an  Ufurtation  before  they  prefent 
they  and  their  Succctlor.s  arc  barr'd  for  ever,  unlefs  by  force  of  tliis  ACt  the  Uftirpation  be  avoided  in  a' 

Qiiare  Impedit.     2  Inl}.  5  58. So  if  a  Man  pnchafes  a  Manor  with  the  Advowfon  appendant    ami  f,,'- 

fers  (Jtirpaiicn  at  the  hvW  Avoidance,  he  l.s  luithotit  Remedy  for  ever  ;  for  he  cannot  Iiavc  Qu  ire  rmpedit 
after  the  6  Months,  and  he  cannot  have  Writ  of  R  ight  of  Advowfon,  becaufe    lie  never  Hd  PoOl-inon 

Per  Thorp.     Nota.  Br.  Quare  Impedit,  pi.  29.  cites  4;  E  ^  14. A  Purchall-r  k  not  within  the  Aid 

of  this  Statute  ;  for  he  cannot  have  an  Adtion  Pofledory,  becaufe  he  cannot  allejje  a  Prefentation  in  him 
fclf  as  he  oii<;ht  to  do  in  his  Count ;  and  he  cannot  ha*e  a  *  Writ  of  Right,   becaufe  he  cannot  ai.e -e 
Seilin  in  the  Elplccs  as  he  ought  to  do  by  the  Law.  Per  Doderidge  J.  5  Bullf.  40    Trin    1  -   fa  -'b  R 
Harris  V.  AulHn^  ♦  S.  P    But  he  may  have  a  Ouarc  Impedit,  and  nUei^e  a  P,-efe„tathr,  in' him  trom-ivhom 
teptrcha/cd  the  lame  ;  and  to  that  end,  faith  Britton,   was  the  Qtiare  Impedit  provided,  for  Rem-dv  of 
ftich  /■imhafiri  ;  but  the  (^uare  Impedit  is  mo:r  ancient  than  the  lime  of  E  I.  as  appear'eth  by  Glanviie 
ainft.  ;5<5.  —  In  S  E.  I.  it  appcareth  C^uod  funt  tria  Brevia  de  Advocatione  Placitabilia    Srevia  dc 
Recto,  (^uare  Impedit,  &  Ultinne  Pr*fentationis,but  yet  the  Original  \Vrit.s  of  Dower  and  'CcfTa-jH  &c 
do  lie  of  an  Advowfon,  and  fo  doth  the  Judicial  Writ  of  ■S'f/re/mM.f.     zh\{[  -^^6. 

*  It  IS  pro-vide,^,  that  ftich  Prcfeniments  (hall  not  be  fo  prejudicial  to  the  *  The  Prc- 
ri^ht  Heirs,  f  or  to  them  unto  ■whomfuch  Advowfons  ought  to  t  revert  after  ^^^^^ 
the  Death  of  any  Perfons.  "•."■^'^^  "."'7 

J        -^         J  to  Heirs  m 

Fraudem  &  Negligcntiam  Cuftodum  &c.   And  the  Words  of  the  Body  of  the  A(ft  are,  Qiiod  hu  ulrnodi 

Prifent-Jtiuncs, (_/«(- ;>  P,-efe7itations)h\it  thcfc  Words  are  to  be  expounded.  Such  Prefentations  as  be  in  the 

fame  Mifckief ;  ai.d  thcretorc  this  Act  extends  to  Heirs  of  Advowlons,  tho'  thcv  be  out  oj  iTard.  z  Inff  -■  "S 

And  rliisb-jing  a  Law  that   fupprclfech  Wrong  and  advancoth  Right,  doth  bind  the  King,  tho'  he'  be 

notnarredin  tlie  Act.     2ln(f.  559.  — The  King  being  informed  that  he  had  Interell,   prcfented 

duripg  Non-age  of  the  Patron  ;  and  on  another  Avoidance,  tlie  Patron  pre'ented,  and  the  Kir.i  brought 
C^uare  impedit,  and  he  pleaded  as  .before ;  and  it  was  held,  .hat  the  Statute  of  Weftminller  z^  does  not 
aid  tiie  Defendant,  tho'  he  be  an  Infant ;  for  the  Statute  mentions.  Where  Ufurpation  is  had  upon  an  lutant 
Feme  Cioverr,  Termor,  Tenant  for  Life,  or  the  like,  hy  negligent  Keeping,  that  he  fhall  have  the  fame 
A6ion  ard  E\-cepti(jn  as  their  laft  PredcceiTor  might  have  had  ;  and  tin  of  Heirs  ivh  come  in  by  Lefcer.t 
wiio  may  b;  in  Ward,  or  have  Adtions  as  Heirs  of  their  Anceff'or.  Hut  **  Infant  Purcha/or  has  no  Guardian 
orjciicn  yJr.eejlrel  of  that  which  is  purchafed,  and  therefore  Ufurpation  had  upon  him  now  fliall  liiiid 
him,  as  ;*  jbaiid  hate  hound  an  Injnnt  or  Fcrr.e  Coicrt  at  Comnicn  Litiv,  by  the  Opinion  there  and  this  im- 
mediately widiin  6  Months  ;  j-f  for  the  6  Montiis  is  given  by  the  Statute  to  bring  the  (Jijare  Imnedit  to 
rtfoim  it.  Br.  Qiiare  Impedit,  pi.  18,  cites  ;  5  H.  (>.  59.  —  ♦'*  S.  P.  2  Inll.  ;  58.  —  +|  S.  P.  Br  Prefcita- 

tiun,  pi.  46.^ Br.  Plenarty,  pi.  16,  cites  S.  C. And  it  v.asheld,    that'if  the  Statute    fhall 

fcrvc  tlie  Infant,  yet  the  King  Jhall  not  be  bowid  thereby  ■  for  where  by  the  ftme  Statute  Prclcntnie'it  had 
a--,d  enjoy'd  6  Months  by  Lapfe  iTiall  bind,  yet  the  King  fhall  not  be  bound  thereby,  but  (liall  iia'vc 
(.^are  Impedit  after  the  6  JSIonths,  by  which  the  Defendant  amended  his  Pica.  Br.  Quare  Impedit  p"l. 
iS,  cites  55  H.  (5.  59. 

A  Prior  was  feifcd  of  an  Advowfon,  and  granted  the  two  next  Prefentations  to  If.  F.  and  his  Heirs.  The 
Church  vcjided.  //".  prefented  and  died.  The  Church  voided  again,  and  his  Son  and  Heir  trefented  -ivtrre  this 
is  oi.ly  a  Chattle  ;  and  it  was  agreed, that  this  is  an  Ufurpation,  which  put  the  Party  to  his  Writ  of  Rii/hc 
of  Advowfon  at  Common  Law  ;  but  now  this  is  exprcfsly  aided  by  this  Statute.     Br.  Qiiare  Impedit  °pl 
14,  cites  :;4H:6.   27.  _ 

f  >sota(.thofe)hcc  efl  illis  heredibus,  to  thofeYieu^ithn  have  the  Reverfion  of  the  Advowfon  bv  I)e- 
fcent  ;,  for  the  P:eamble  faith,  Harretles  etium  five  majorcs,  five  minorcs  &c.  And  the  Perclofe  of  this 
Branch  is,  (^u.tiem  liaberct  ultimus  AntecelTor  hujulmodi  h.-erede.s  &c.  So  as  this  Statute  dotfi  help  tiie 
Heir  of  liim  /;;  the  Reicrficn,  at^d  not  the  Leflbr  himfelf;  but  the  Heir  of  him  in  Remainder  is  not 
Tiithin  the  Purview  of  thus  Act.     z  Infl  559. 


judice  the  Heir  in  Tail  by  Reafou  of  the  Statute.     Br.  <>uare  Iii,pedit,  pi.  ;  i,  cites  43  E.  5. 


T'he  *  faiJie  /ball  be  ohferved  in  Prefetitmc»ts  made  tttito  Churches,  being  of'*  If  a  Feme 
fj^tf  t  Inheritance  of  Wives,  zahat 'Tinie  they  Jh  all  be  under  tie  Pcjuervf^^'^'^^'^^^-''^^^ 
their  Husbands,  i^hich  muji  be  aided  by  this  Statute  by  the  Remedy  ajore-  thn^y^.J^I 

[aid.  .  ch.^.fe,  file  is 

not  ttic'hin 
the  Remedy  of  this  Adt.     2  Inft  560. j  This  is  intended  of  an  Advowibii  ij- Z)(j/f^«/.     zinlt.  ^60. 

Jlih  Rcligioas  IMcn,  as  Eipops,  Archdeacons,  Parfons  nf  Churches,  and  By  this,  Pi-e- 
o'lxr  Sptruual  Aden,  Jhall  be  aided  by  this  Statute,  in  Cafe  any  having  no  'y"**''"'?  ■'"'^ 
Right  to  prefent,   do  prefent  unto  Churches  belonging  to  Prelacies,  Spiritual  j^  yyf/""*" 

Dignities, 


396 


Prefentation. 


F.-cchold       P^<^'^-^("^h '^t'^'^n^i^'gf'itics,  or  Parfoiiagcs  be  vacant.  "^    ' 

and  Inl,crit;m.  e  is  in  Abeyance  in  Gremio  Lcgis,  yet  the  Ulbrper  gainctli  a  Fee-Simple  in  the  Advow- 
fon;  like  as  i  one  cntcrcth  into  Lands  dnnng  the  Vacation,  and  clai,n  the  fame  as  liis  Inherir  nee  hr 
gainctli  an  Inher.tunce  by  Wrong;  but  yet,  as  the  dying  feifcd  of  Lands  in  that  Cafe  .iurin.^  the  vica 
„on  Ihall  not  take  a«ay  the  Entvy  of  the  Succeflor,  no  inore  fhall  the  Uliirpation  during  d,e  Vacation 
take  away  his  Right  of  Prclentanon  when  the  Church  becomes  void;  and  if  he  be  dilturbed  h^.  fl,  M 
have  his  ^iiai-e  Impedit.     2  Inft.  560. See  Supra  pag.  594,  595.  '  '"^  "'''" 


So  great  Re-        Scft.  2 
j'ard  the 


Sc£t  2    Neither  pjalj  this  Atl  be  fo  largely  UriderflooH,  that  fuch  PerfoHs 
Law  h«h  to  4''  ''''■f  ^"Tfi  'n'    'f"^'  -f_as  ordained,  fiall  have  the  Recwcrj  aforLl 
Jud!,„enu,    SurmiJing,  that  Guard attts  oj   Heirs,  Tenants  m  Tail,  by  the  Courteiv    T, 
as  this  Att     nants  tn  Dojer,  for  Term  of  Lrje,  or/or  Tears,  or  Husbands,  -xhichixn-ixXs 
provideth,      have  delendea  Pleas  moved  by  tbem  or  afainfi  them 
That  by  any  o      ^  • 

general  Words  of  this  Aft  they  j7..7//,«/ if  ^^™*^iy  PreUme   cf  Kv„t  Dffehre  ■  quia  Tudicia  in  Curi, 
Regis  reddita  pro  Ventate  accipiuntur;  &  Judicia  funt  tanquam  JurisdicCa      2  Inft   -60 


Law  ;  That, 

"Judicia  in  Curia  Regis  reddita  non  adnihilentur,  fed  ftent  in  fuo  Robore  quoufnue  per  Errorem 
aut  Attinrtam  adnuUentur.  ^        1"^  t^-r  niroiem, 

«'  Nihil  tam  conveniens  eft  >jaturali  ^quitati  unumquodq;  diifolvi  eo  ligamine,  quo  li-atum  eft  " 
"  Intercft  Reipublicae  res  judicatas  non  relcindi."     2  Inlt.  560.  >  H  ^  '  o-'ium  eit. 

Or  by^^/^o/ Darrein  Prefentment,  or  by  Inquejt  by  aTlY't  of  Ouare 
Imped  It  //  It  tepajfed,  or  be  annulled  by  Attaint  or  Certification  -Jbich  Ihall 
be  freely  granted.  '  ^  . 

ClaTil?..-       .  ^.^"'^  fo"'^t"'f,  *  «;>^;«  f  Agreement  is  made  befween  many  claiming  one 
uJ  i:  .^\f''H'"^'''''^  '"'f^^^^  in  the  Rolls  or  by  Fine  in  this 

u  Stmngers    ^'"""^    ^ ^Ht  One  ihall  prelent  the  lirll  Time,  and  at  the  next  Avoidance 
(./■£/W  as  to  another,   and  the  third  Time  another  ^  and  fo  of  many   in  Cafe  there  be 

Coparceners    many ^  -^^  '•'       ," 

that  are  privy 

in  Blood ;  and  if  one  of  the  Parties  or  his  Heirs,  or  any  Stranger  ufurp  in  the  Turn  of  -mcrWy    tN. 
Pany  wrong'd  is  not  driven  to  his  CLuare  Impedit  ;  for  fJ.t  may'-be,  tha?  the  U^l\l,r^\tl 
of  Preicntment,   n^ay  fail,  and  yet  he  may  have  Remedy  by  this  Branch  of  the  Act ;  for  albeit  th-re  be 
a  Plcnarty  by_6  Montlis,  yet  the  Party  may  have  a  Scire  facias  upon  the  Roll  or  Fine,  and  the mr  -e 
cover  the  Prelentatlon  and  Damages.     2  Inft.  562.  ,  inu  uici>.m  .c- 

CH.IkK  a)  ,   "^'"^  "'"^T  '"'  ^^;  Pf  "ted    and  had  his  Prefentation,  -which  he  on^bt-to 
V    ■^^^^■^•)  have  according  to  the  Form  of  their  Agreement  and  plne ,  and  at  the  neZ 
Avoidance    he  to  ivhom  the  fecond  Prefentation  belon^eth  is  dillurbfd  bv  inv 
that  was  Party  to  the  laid  Fine,  or  by  fome  other 'in  his  Steid  '  ' 

It  IS  provided  That  from  henceforth  they  that  be  fo  di/lnrbed  /ball  have  no 
Need  to  fue  a  Ouare  Impedit,  but  frnll  refort  to  the  Roll  .r  Fine  ; 
*u  Jf  ''J,  if,  Concord  or  Agreement  be  found  in  the  Roll  or  Frne^  then 
the  6hertjfjhall  be  commanded,  that  he  give  Kno^.vlcdn  ttnto  the  Diflirber 
that  he  be  ready  at  fome  fhort  Day  containing  the  Space  of  15  niys  or  I 
Weeks  (as  the  Place  happenetb  to  be  far  or  near)  for  tofiew,  if  he  can  alJe 
any  thing,  wherefore  the  Party,  that  i  s  dijiurbed,  ought  not  to  prefent 

And  If  he  come  not  or  peradventitre  doth  come  and  can  allege  nothing  to  bar 
the  Party  of  his  Prefentation,  by  reafon  of  any  Deed  mide,  written  lince  the 
inaeT'  °'  ''''        '  *'' '^'''^^  ''"'"''  ''''  Prefentation  with  bis  Da- 

rnagc"  by  ■  ^  .J;?.  3- .  ^f^  [f  the  6  Months  be  not  pajfcd,  but  the  Prefentment  be  de- 
'his  Act  re>gn  d  ;v  ith.n  the  yxtd  Time,  then  Damages/;..//  be  awarded  to  the  Half 
are  to  be  re-  i  ear  b  V  alueo/  the  Church 

that  if  Impe-  ^^^^  ^^t        /  ^'^"^  ^<'«/^nv^^  by  Lapfe  of  Time,  -hejhallbc  punijkedby  two 

turbn- 


rrefentation. 


,_  3^7 

covered  but  arahifi  \\\m  rliat  is  Iinpediroi-  or  Di ft tir'ier.     z  Inft  56:;. In  a  Quarc  IinpeJit  z^ih^ 

tlic  Patron  and  Incumbent,  the  Plamt-ff  recovers  tie  Jtlvo'u./on  Pofl  feiveftre  lenit'ns  ;  and  becaufe  the  /«- 
cnniic)!t  was  Impcditor,  for  that  he  had  countcrpli-.^iied  the  'Title  of  the  P/.iiiitiff,  tiicrefore  hi  recovered 
the  r,ttue  for  fiuo  Vears  as  well  .7;;.r/«/?  the  IiiciimLeiit  as  the  Patron,     i  Inll.  565. 

Jud  if  the  Jd-vowfoit  be  dereign'd  within  the  Half  Year,  yet  tke  Dip- 
turLer  f^all be  pii/ujbcd  iy  the  Iniprilbnmenc  of  Halt  a  Year. 

2.  7  Air,id\  cjp  1 8.  Forafiitiicb  as  the  Pleading  in  a  ^iiare  hnpedit  is 
found  'Very  dtp'cult,  -jvhercly  many  Patrons  are  either  defeated  of  thetr  Rtghis 
vf  Prefentation  or  put  to  great  Charge  and  Trutible  to  recover  their  Right  ^-iihich 
IS  occ.yioned  by  tire  Law  as  it  ncis)  is  ;  For  Remedy  ivhertof  be  it  en.'.ded  iy 
thej^aeens  incft  F.xcedcnt  Majfiy^  by  and  with  the  Advice  and  Confent  of 
the  Lords  Spiritual  and  'temporal^  and  Commons  in  Parliament  ajjembled,  and 
by  the  Authority  of  the  fame ^  That  no  Ufiirpation  upon  any  Avoidance  in  any 
Churchy  Vicarage^  or  other  Ecclcjiajfual  Promotion -^  fhall  difpUue  the  FJhite  or 
Interff  of  any  Perfon  entitled  to  the  Advowfon  or  Patronage  t hereof ^  or  turn 
it  to  a  Right ;  but  he  orjhe  that  would  have  a  Right  if  m  Ufurpation  had 
been,  way  prefent  or  maintain  his  or  her  .^uare  Imped  it  upon  the  next  or  any 
ether  Avoidance,  (jf  dijfuried')  nvtwithjlanding  fuch  Ufurpation. 


(D.  c)     Vpon  ivbcH  Thi?/g  Ufurpation  may  be. 
i.jjf  a  Don:lti^e  licconicS)  iiotti,  «nn  after  a  S^trnngcr  pi-cfcntsi 

-*-  tIjCrCtO,    anH    ijl?   Clerk   10  aOUllttCn,   imtituced  and    inducted, 

^et  tW  10  »ot  anjj  aUirpatiou  to  tijc  trite  li^atrou  -,  "But  all  tljis  isi 
nicrelp  ijoiti*  Co*  litt.  344- 

2.  Jf  tijE  £>r5inarP    deprives  an  JncmnbCnt  for  Crime  or  other  WatfComp. 
Caufe  in  which  he  ought  to  give  Notice  djCteof  tO  tijC  jiJatrOU,  hi\t\)Z  ^'"=-  ^'"^■ 
does  not  give  Notice  tDClXOrtO  tf)C  iSatUOU,  Ullt  afcCt  a  Stranger  pre-  [^f^l  'l^'^^' 
fents  1)10  CICl'i:,  iilija  10  inftttUtCD  aaQ  inducted,  and  6  Months  pafs^ 

tt  fccin?  tOat  Xi^^":  '.0  an  ururpation  upon  tijc  patron  -,  fur  tijo'  tiic  .^ee  thesta- 
©lOinaru  iijali  liut  tjalis  anp  aribantage  of  anp  Lapfc  U)itl)Out  Bq-  'f  ^  °^  ■ 
tice,  vet  tJjc  Cljurdj  of  iticlf  10  Doio,  ano  aaautft  ^trtiuscr0  ttjc  fs""^;  .^^^ 
i!?atron  10  \y~\Aii  to  take  l^otice  of  tt  at  1310  PcrtU   ^cc  '^xm,  4+  z)  supra.'  " 
€U  15.  £v^  (j>'--"-  anti  acker's  cafc. 

3.  jr ;«)'  C'ak,  bcinn;  niftituten  ann  inliUftcti,  reiigns  into  tfjc 
J3anti0  01  tijc  SaDman)  by  Co\  in  i-ctUicen  l)tm,  tljc  Omtnavi?,  ana 
%  %,  of  i;5urpofc  tfjat  %  ^,  fljall  prefent  3;»  'O,  to  tljc  3'ntciit,  to 

defeat  me,  the  very  Patron,  of  my  Prelentation,  illtU  J.  S.  pielents  (.  Jl 
acc(3rdi:.gly,  and  6  Months  pafs,  pett!n0fljaU  nOt  bC  d.\W  llfltrpatton, 

becaufc  tbe  ©rntnari)  Ijatb  not  ijilien  to  nic  anp  Bottcc  of  tijc  Uciut- 
nation  i  for  otOcraJta  cucrp  one  may  be  tJefratmen  bp  fuci)Co\jenoif0 
2:)caUns.  'cCr.  4o€l«  15,  bctUjeeii  Lacou  ano  tijc  Bipjop  of  Lmcvin. 
]ptt  Ciirtaai, 


(E.  c)     Ufurpation.     injat  Aii  or  Thing  will  make  an 
Ufurpation,  or  put  a  Man  out  of  PolTeflion. 

»•  T  if  a  f^an  recovers  in  a  Quare  Impedit,  and  has  Execution,  f'MXS^  '^''  Q"^""^ 

^  otljec  10  out  of  i^olfemon  tijcrebi'.    9  ^x  6.  57.  "  ;"'i:^J;s.£ 

5  If  2  Jf 


398  Prefentation 

Br.  Quare 


Im,edit 'pl  ^-  3!f  n  St3an  brings  (^uare  imped  it  again  11  the  Incumbent  on!  v  Mtfl- 
6.  citcsS.C- out  tijCj^nti Oil  and  Recovers,  and  by  Writ  to  the  Biihop  the  Incum- 
lieceverya-    bent  is  removed,  and  the  Clerk  of  the  Recoveror  inflituted      tllliS  flwH 

St:.  ..  EttttOcpntE^^^^^^^^  noi^aitpto  m^mu 

againft  the      ^  UtHtatlU  .  9-  iP>  6»  3  2. 

lihiimbent  the  PiXtrcn  not  ;mwc,/,  ftall   not   bind   the   Patron ;    quod   nota    Br.   Qiisre  Impedit    pi   47 

cites  7  H.  4.  25.  r- — \ And  Brooke  fays  it  appears  clfewlicre,  that  where  the  A';«^  or  ihc  Pope  pre.' 

fenti  the  Qtiare  Impedit  fhall  be  a^anilt  the  Incumbent  alone,  and  in  other  Cafes  it  Ihall  be  more 
commonly  againft  the  Patron  and  Incumbent,  or  againll  the  Patron  alone,  unlcfs  in  Special  Caf-s 
Br.  Quare  Impedit.pl.  47. 

3-  M  tlje  Bifliop  be  a  Difturber,  no  JLapftflja!}  \\M\SX.  fcp lug  DiHiir. 
bnuce,  tija'  tijc  Cljurcl)  be  ijom  lip  6  Q3oiitljs.  Cn  3.  Ja.  015*  H»  be' 

tmm  Palmer  and  ^mith.     Ucftlltietl  pCr  CUrUlUU 

4.  Asii  the  Patron  prefenttO  tljC  Biihop,  nilO  IjC  will  not  examine  the 
Clerk  but  delays  him,  by  which  the  6  Months  pals,  VCt  110  ILauH'  (Iiall 

uictic  totDclMiljopi  asecaufc  Ije  10  a  Difturbcr,  aiiD  vm  conies  bi> 
i)is  o'usn  iDuturbaiice>  ®r.  3- Jia*  05,  ja»  bctlDcm  P^/;/m- ^;;^  ^•w///? 
EefdtieD  per  Curiam* 

5-  3fa  StrangerprelentstO  lllj?  ClUirClj  OCUig  \sm  tUItljOUt  aiiP 
l%tO:()r  or  Citle,  mit  merely  by  1  ort,  bUt  IjC  prefCntSS  bv  Simony,  aiio 
his  Clerk  is  aDnUttCO,  tUftitUtetl,  aiin    inducted,  and   6  Month's  pafs  • 

mt\n  10  net  aup  Hfui-pation  to  me^  QSecaufc  tbe  prefentatiaiu 
UBmimon,  ana  j-nftitution  arc  tiiaiJe  '^m  bv  tije  Statute  of  31  ei 

anO  tijC  |j?relentec  tSS  not  incumbent  de  Fado.  CO.  lltt.  120. 

6.  li  \  frefait  my  Clcrk^  -who  is  admitted^  and  alter  another  prefents  and 
oujls  my  Prcfcntec  without  'Title ^  Now,  notwithltanding  that  Pr-'^wrff  w/A 
mt  fue Spoliation^  yet  I  am  not  out  oj  Pcfeffion^  but  ajtcr  the  Death  of  my 
Prejentee  I  pall  prefent  again.    Br.  Conlukation.  pi.   i.  cites  aa  E   a   as 
Per  Tank.  ^^      •  i- a- 

7.  In  Scire  facias  it  was  agreed,  I'hat  if  the  King  feifes  Jdvowfvn  of  a. 
prior  JlienjorlVar  and  Prefents^  and  dtiCT  the  Prior  is'rejlored^  this  rfoes 
not  put  the  Prior  out  of  Poireffion,  nor  iLall  the  Prefentment  of  the  Guar- 
dian in  Chivalry  put  the  Heir  out  of  PolTeliion  ;  For  the  Po/Jej/^on  of  the 
King  affirms  the  J'ltle  of  the  Prior  Alien,  and  of  the  Heiri  But  the 
Heir  nor  the  Prior  Alien,  pall  not  make  Title  by  this  Prejentation  of  the 
King.  Br.  Piefentationpl.  47.  cites  46  E.  3.6. 

8.  Where  the  Defendant /)rf/2;//-j  ;/;  Jure  Uxor  is,  vet  xi'Jhe  has  no  RiTht 
this  does  not  veil  Polielfion  in  him.  Br.  Quare  Impedit.  pi.  loS.  cues 
14H.  6.  23. 

9.  Between  Patrons,  if  one  of  them  be  prefented  and  admitted,  and /;;,f /- 
ftiited  by  the  Ordinary,  and  is  in  hydMuiths,  this  Ihall  gain   PoirefFion  i 

Contra  where  he  prejcnts  a  Clerk,  and  puts  him  in  PoffeJJioa  without  the  Or- 
dinary ^  Js  where  I  have  a  Free  Chapel,  to  which  I  may  make  Collation 
and  put  my  Clerk  in  my  felf  without  prelentingto  the  Billiop,  there  if  a 
Man  at  an  Avoidance  puts  in  his  Clerk  who  is  in  by  6  Months,  this  does 
not  put  me  outot  Polleffion,  nor  if  he  prefents  him  to  the  Ordinary,  who 
admits  and  inftitutes  him  .  So  where  .an  Abbot   \s  PlleHtve,   and  hot  pre- 
jentable,    there  Prcfentation  does  not  gam  PolJeffion,  Per  Markham    quod 
Danby  concelfiti  but  Newton  held  Contra,  and  that  in  thofe  Cafes  of  Pre- 
fentation  to  the  Bifl;op,  where  the  Clerk  is  admitted  and  inllituted   he  is  a 
clear  Gainer  ot  Polielfion  ;  otherwife  itfeems  clearly  to  be,  where'hp  puts 
hira  in  Poifellionof  his  own  Authority,  by  which  he  continues  till  the 
6  Months  pafsi  this  does  not  gain  Poffcinon  clearly  as  it  fecms.  Contra 
of  the  Bill.op  who  makes  Collation  by  Lapfe^  For  there  6  Months  make 
Pollcliion.  Br.  Quare  Impedit.  pi.  83.  cites  22  H.  6.  25. 
It  wa,s  re-  ^°-  ^  -^'■"^''  ^=>s  ^^''^d  of  an  Advowfon,  and  granted  the  2  next  PreCenfa- 

fo\Kd,That  l!^ons  to  If .  F.  and  his  FJeir,  the  Church  voided,  JJ-:  prefented  and  died,  thd 
if(rey,t:„  Church  voided  again,  and- his  Son  and  Heir  prefenud,  wha-e^rs  it  is -only  a 
Mlo-lhh        ^^^^^  '  ^"'^  '^  was  agreed  that  this  Ls  aUfurpution  which  puts  the  Party 


to 


Prefentation.  '^  pp 


to  his  Writ  of  Right  of  Advowfon  by  the  Common  Law,  but  now  this  an  Advow- 
isexprefly  aided  by  the  Statute  ofW^'  z.That  Ufurpations  permitted  by  '"o"  •'«"•"■«- 
Termors  ihail  not  grieve  him  in  the  Reverfion,  by  which  at  the  next  A-  'XWv/'^'^ 
\-oidance  the  Prior  prefented,  and  Jflue  was  talceii  by  the  other,  That  the  t,oII'," f,  aW 
Prior  did  not  grant  Modo  &  Forma  ^e.  and  would  not  Itay  the  Matter  AVj,  and  the 
in  Law.  Br.  Quare  Impedit.  pi.  14.  cites  z±  11.  6.  27.  IiTueentcs 

^  .  ■^  ^       ^  ^^  '  into  the  Ma^ 

tor,  then  the  Grant  is  void,  as  it  fecmed  by  ;  Rep.  Si.   And  altho'  Rich  Grantee  prefe/iti  by  Colour  ot 
fiich  Grant,  yet  thutis  a  Ulbrpation  which  fliall  bind.  Moy.  145.  .\non. 

11.  By  the  PofTefJIoii  of  the  King  by  Prefentation,  or  by  the  PoiTclfion  '■<»  Pnfenta- 
of  any  other  Pcrfon   by  Prefentation^  every  other  is  out  of  Polfellion.  Br. '""  *^,'",.  ^ 
Quare  Impedit.  pi.  i8.  cites  35  H.  6.  59.'  fion^W rL 

pcrfcdr  rre:ent<ition,  ar.A  ivhere  the  hcumlrut  ccnlhmeshy  6  Months;  For  lo  Prcfentments  within  f>  Montha 

flwll  not  gain  Pofl'-flion.   Br  Qiure  Impedit.  pi.  149.  cites  12  H.  8.  la S.  P.  if  all  tlie  Clerks  die 

■within  the  6  Months.  Br.  Prelcntation  pi.  25.  cites  14  H.  8.  2. 

12.  He  v^-\\oprefents  hivifdf  by  afirangeName^  where  he  is  Patron  and  If"  J- N. 
takes,  he  ihail  be  put  out  for  Spoliation  i  For  he  may  fray  the  Ordinary  f!'"'y  '''^  ^''' 
to  admit  him,  but  not  prelent  himfelf  Br.  Quare  Impedit.  pi,  18.  cites  ^|"^'/!y,^'""^" 

35  H.  6.  59.  'nvhkhlUes, 

.         ,-  ^  .  this  does  not 

{;ain  1  oliellion  ;  for  there  is  no  Prefentation;  For  he  cannot  plead  Plenarty  of  iiis  own  Prerentment. • 

Br.  Prefentation,  pi.  23.  cites  14  H.  S.  2. Br.  Quare  Im^iedit.  pi.  S6.  cites  14  H.  S.  2.  29.' 

13.  If  a  Church  becomes  void,  to  which  I  have  Caitfe  to  prefent.^  and  a 
Stranger  makes  Prefentation^  and  his  Clerk  is  inltituted  and  inducted,  againll: 
whom -x  Stranger  brings  ^tiare  Impedit  J  and  recovers,  this  Recovery  llial  I 
not  grieve  me  who  am  rightful  Patron,  and  a  Stranger  to  tiiis  Recovery 
&c.    Agreed  per  tot.  Cur.  Keilw.  49  pi.  4.  18  H.  7. 

14  ll:  a  Stranger  preJcKts  the  very  Patron,  this  will  not  put  him  out  of 
PoUelfion.  Br.  Preientacion  pi.  23.  cites  14  H.  8.  2. 

15.  It  the  Ordinary  makes  Collation  ivitbin    6   Months,  this  does  not 

gain  Pofleifion  to  the  Succelfor  ;  For  he  has  Colour  as  Ordinary  i  Contra,  '^f/'""  '^''^^ 
'ii:here  he  prefents  -jL'ithotit  Colour.  Note  the  Diveriity.    Br.  Prelentation  pi.  fh^di  no" 

23.  cites  14 H.  8.  2.  oull  the   Pa- 

tron ot  his 
PofTetTion  ;  But  Prefentation  leHh  Jdmijjlon  gains  PofTeffion.  PerConisby  and  Fineux  Ch.  J.  arcordinelv 
Ibid 

16.  If  a,  Man  prefents  hi7nfelf,  and  is  induSled,  and  dies,  this  does  not  -^o  it  !.■;  of  the 
toll  the  Aftion  oi  the  very  Patron  ;  But  he  may  havcQiiare  Impedit,  and  '^f''-'"""- 
this  does  not  gjunPolIeliion.  Br.  Prelentation  pi.  23  cites  14  H.  8.  2.  '^'  ' 

17.  h.Cri!cge  v.as  founded  by  the  Name  of  YjkU  Scholarunn  ReginiP  de 
Oxon.  The  Provoft  of  the  faid  College  prefented  to  a  Church  being  void 
hy  Name  of  the  Provofi  ot  the  College  of  the  Queen  in  Oxon,  and  omitted 
the  Uord  (_Scholar!'.nn)  And  it  was /'f/rt' clearly  by  the  Court,  that  thi3 
Prefentation  thus  made,  by  a  contrary  Name  of  their  F"oundati(^n,  Ihall 
make  no  Uftirpatiov,  nor  gain  any  Patronage  to  thcmfelves  ;  for  there 
^vas  no  fuch  Nanic  of  Incorporation  as  they  prefented  by,  and  fo  con- 
fequently  no  Ufurpation  thereby  by  them  gained.  Built.  91.  Mich,  8 
Jac.  Dr.  Ayray  v.  Sir  Richard  Lovelace. 

18.  It  was  held  by  Brampfton  and  Crooke  J.  that  a  Naked  Prefnt- 
ment  iicithout  any  Indutfton,  does  not  gain  any  Right,  and  the  very  Pa- 
tron by  this  is  not  put  out  of  Polfclfion,  but  that  it  is  the  Inltitutionand 
Adniiilion  by  the  Ordinary,  which  is  a  Judicial  Act,  that  makes  the 
Ui'urpation,  and  there  is  not  any  Interell  gained  before  j  tor  if  there  be 
a  Prelentation  wiiliout  Inllitution,  nothing  is  done,  therelbre  if  the 
Ufurpation  is  gained  by  the  Inftitution,  which  is  fubfequent  to  the  Pre- 
fentation, the  Ufurper  in  his  Declaration  cannot  lay  that  he  was  feilcd  in 
Fee  and  prefented,  nhich  is  precedent  to  the  Act   nhich  makes  the 

Liurpation, 


400  Prcfentation. 


out 


urpation,  \iz.  the  InlHtuti(>n,  And  till  Inftiturion  no Eltate is  drawn 
:  of  the  Ufliipation;  that  it" alter  Prelcntation  and  before  Inllitmion, 
the  very  Patron  grants  his  Advowfon  to  a  Stranger,  the  Grant  is  good, 
tho'  afterwards  there  be  Inllitution  of  the  Clerk  of  the  Ufurper.  And 
they  laid  that  in  Truth  there  cannot  be  an  Ufurpatioii  to  gain  the  Fee 
till  the  Inftitution,  and  by  Relation,  which  is  a  Fiction  in  Law,  it  Ihail 
not  be  lb  taken  i  tor  Relation  and  Fiction  is  to  preierve,  and  to  prevent 
Mii'chief,  and  not  to  do  a  Tort,  as  the  Caie  in  Queltion  is.  But  Bark- 
ley  and  |ones  held.  That  the  Prefentation  is  the  fole  A61  of  the  Party 
which  gains  the  Advowfon,  and  the  Inftitution  is  only  a  fucceeding  Ce- 
remony j  and  when  the  Ceremony  is  perlbrm'd,  it  lliall  have  Relation  to 
the  precedent  Act  ;  and  cited  6  E.  3.  41.  b.  chat  Prelentation  in  Time  of 
\\'ar,  and  Inftitution  in  Time  of  Peace,  lliall  be  an  Ufurpation  in  Time 
o^  \\'ar.  Et  lie  pendet.  Jo.  427.  428.  Hill.  15  Car.  B.  R.  in  Cafe  of 
Sir  Henry  Harper  v.  The  Bailitis  and  Burgelles  of  Derby. 


(F.  c)     Ufurpation.     For  ivhow  the  Ufurpation   fhall  be 

faid  to  be. 

Watf  Comp.  i»Tjr  tl)C  King  prefents  in   Right  of  his  Ward,  who  has  not  anv 

incsvo.zo-.     j^  t^ighr  (p  flj^  atilioiufon/t!j!0  Xicm  tlje  Inljcnuince  m  tm 
Same'  Cafes"  tJ^iitii  lip  afurpatioH,  becaiifc  Ijc  Ijas  crprcCsip  pitrcnrcn  in  \m  Hietjt. 
42  e»  3. 4»  b*  43  <£»  3*  i4»  iv  Contra  22  e.  4*  9-  b. 

z.  So  It  10  Of  a  Common  Guardian.     COUtCa  17  ^«  3>  6o»    7  p, 

4*  26.  b» 

Watf  Comp       3*  JfJ  prefent  as  Procurator  to  J.  S.  to  a  Church  of  which  J.  N.  is 

inc  svo.207  f^^iitd  i  tWj  fljaH  ht  an  ufurpation  for  %  g).  if3i  am  fi)rocurator  of 

cap.  13.  cites  %  ^.    17  C£.  ^.  6o» 

s-  c.  4^  So  it  fl)ail  be  if  J  prefent  a0  W  J3rocuratorj  tho'  i  be  not  his 

Procurator.      17  (£.  3,  6o» 
WatC.  Comp.      5.  %0  if  I  mV  fClf  am  leifed  Of  an  ^UllOtUfCn,  and  I  prefent  as  Pro- 

inc.svo  Z07.  curator  to  a  Stranger,  tljijS  fljall  bc  an  ufiirpation  upon  uipfcif  for  tijc 
s"p.  Ad-  ~  €)trangcr»    1 7  e .  3 .  60. 

mittcd  per 

Cnv.  Ow  141  in  C  B.  41  Eli/,,  in  the  Cafe  of  JRllOt)  t).  iTopffl'-  And  upon  the  Reafon  thereof  the 
principal  Cafe  there  was  ruled,  viz.  In  a  Quare  Impcdit,  the  Jury  found  th.it  Edward  C.ipell  wus 
feifed  of  an  Advowfon  in  Fee,  and  did  let  it  to  the  Defendant  for  Years,  and  during  the  Leafe  he  prc- 
fented  the  Defendant ,  and  the  Doubt  was,  Whether  this  was  a  Surrender  or  an  E.>;tinguiniment.  And 
it  was  held  by  all  the  Jufticcs,  That  this  could  not  be  a  Surrender,  but  is  clearly  an  Extinguifhmen:. 

S.  P  Co  6    So  fijall  it  be,  if  I  prefent  as  Attorney  to  a  Stranger  Of  an  !iltSllOlU= 

•^1'.'  ?^  ^  fon  ii3!jercof  3!  m\>  fclf  am  feifeU,  tW  njaU  bc  an  ufurpation  for  tijc 
pu^^ing  my-  stranger,    17  e  3-  60.  t 

lelf  out  of 

Pofleilion,  becaufe  the  P.irentee  comes  in  by  the  Inftitution  and  Induction  of  the  Ordynary. 


(G.  c)  Ufurpation.  //Ijaf  Perfai  [may]  ufurp.  The  K'nig. 

h  R  By  all  i,  rTpj>)  (£  ji^jno;  map  ufurp  42  €»  3*  4*  b,  43  C.  ?♦  15*  D.  t s  (Ci. 

vr^of""'       1    35 u  22.  anti  cites  '€xm,  35  ix  8>  <E\)t  l^mn;  map  pin  an 

Windham  J  3ti\)oujfon  Dp  iprefciitmcut,  auD  i^lchartp  bp  iix  ^outljis  luitljout 

For  true  it     aUP  CltlC*     SllfO  againft  an  Iq^nt  Purchalcr. 

is  that  the 

King  cannot  do  Wrong  to  any  ;  but  that  which  niakcs  the  Tort,  and  cau.'es  the  Ufurpation,  is  the  In- 

ili'UtlOD 


Prefentation.  40 1 

ftiturion  ^nd  Induftion,  which  is  not  propei-'.y  Ton,  becaufe  they  are  Judicial  Afts.     SiJ.  165.  Brown 
V.  Spencc. 

In  (luarc  Impedit  by  the  Kimr,  who  counted  th.it  he  Limfelfw^u  feifed  of  the  Advowfon,  nud  prcfeutcd 
his  Clerk  Sec.  who  was  Infitiited  tzc.  and  after  died,  and  he  prefentcd  again,  and  the  Defendant  dt- 
fturb'd  hiiT),  the  D^'fendart  fiid,  Th.it  before  the  King  pref^rffd,  or  any  TlAnt;,  had,  J.  S.  was  feifed  &c.  and 
trefented,  «>id  his  C.erk  hiffitiitrd  and  indiiBed,  and  ccyivcy'd  the  Advowfon  to  linif'lt  hy  Grant  ct  J-  F.  and 
after  the  Church  voided,  and  If.  S.  infcrw'd  the  King  th.U  he  h.id  fnterefi,  by  which  the  Kinc;  prelentcd, 
and  his  Clerk  was  received  and  inlliruted  Sec.  and  after  the  Churcl>  t:c,ided  again,  and  the  Dejer.d.wt  pre- 
Jetited,  hy  Re.ifonthat  he  was  within  Jge  at  the  Time  of'tle  Prefentation  cf  tie  King  abfjue  hoc,  that  the  King 
had  other  Title  but  by  the  Intcrmation.  And  it  was  held  tiiat  the  King  was  in  PoflciFion  by  Realiin  of  his 
Crefcntation  ;  and  therefore  fee  that  the  King  may  be  an  Ufurpcr.  Br.  O'.iare  Im;-edit,  pi-  i^.  cues  55 
H.  6.  59. Br.  Prerog.  pi.  6.  cites  S.C. 

For  whom. 

2*  !Jftl)C  l^intX  prefents  in  Right  of  his  Ward,  who  has  not  any  ^|^  ^^^^ 

Right  to  tljc  anuouifon,  tl)is  \3Cffs  tljc  Jn!}ci'!tnncc  (n  tlic  t©arti ;  foi: ''  '• ' 
Ije  \m  crpref0ip  piTfcntcri  in  \m  iAiirljt,  aiiB  10  au  ufiu-patiaiu  Crga 
42  e.  3. 4>  li»  43  €.  ?♦  i4»  b*  Contra  22  c»  4»  9*  0. 
3-  So  njall  it  be  in  Cafe  of  a  Commou  Guardian.   Coiitta  7  l^«  4» 

26»b*  17  C  3.6o» 


(H.  c)   IHjo  may  ufurp  /';;  Rcfpeti  of  the  Ejlate. 

i.tJF  a  ^an  fCilltl  of  an  atllOluran  in  jTeC,  grants  the  three  next  Hob  ;i5. 

J-  Avoidances  Of  tljC  CijlU'Cl)  tO  %  ^,  anQ  aftCl'  tljC  Cljlil'Clj  tiDiQS,  TheG^ 
anD  t\yZ  Grantor  himtell  prcients,  and  his  Clerk  Inltituced  and  lndu6ted,  of  the  three 

tljo'  t^E  crrantor  Ijimfclf  Ijas  tljc  Jfcc,  fa  tijat  Ijc  cannot  gain  a  nciu  Avoidances 
jfce  bp  an  Hfurpation,  nt  tljis  fljall  be  an  ufurpatian  m  to  tlje  Q5ran= '?  3"  °"e  in- 
tee,  bp  mljit!)  tlje  tiDO  otijet  nej:t  a^joiuance^  to  Ijim  grantcD  are "''V"-^''^'^' 
turner!  to  a  Hmljt ;  anH  fo  beeauic  be  cannot  baiie  a  il©rit  of  Eisijt,  not  hav^c"" 
be  10  luitbout  Eeutcbp  for  tbcm,   n9»  16  la,  15*  betiueen  S^ir  n'liium  \\  rit  of 
-EUwaycs  and  7'aihr.  j35er  Curiam.    Jntratur.   Contra*  Co»  iLitt.  i}'s!]tby 
249.  tbere  cites  Ix  is  €!.  T>.  per  Curiam,  for  tbc  Privity  between ,, '  p  uf 
tijem  [makes  it]  no  nfurpation,  anO  becaufe  tje  cannot  ufurp  upon  „c  sof  hi.^" 

IjIUifClf*  Ellate,  and 

this  Uiiu-pa- 
tion  is  not  remedied  by  the  Statute  of  W.  2.  5.  And  (b  his  Right  being  remedylefs,  it  is  gone,  and  he 
in  P.everfion  is  feifed  in  Fee  difcharg'd  of  this  Grant,  and  havmg;  ufurp'd  withm  the  6  Months,  the  In- 
tereft  does  not  continue  divided  in  him  ;  and  if  he  dies,  his  Executor  fliall  not  have  it  b\it  his  Heir,  for 
it  is  drown'd  in  the  Revcrfion  ;  as  if  Tenant  for  Life  be  dilTeis'd  hy  him  in  Reverlion,  and  dies  fei^'d, 
this  is  a  Dcfcent  of  the  Ellate  in  Fee,  and  fo  the  Reverdoner  is  feis'd  in  Keeof  the  Advowfon.  Adjudged 
accordingly.  But  Hutton  Contra  ;  for  he  held  that  they  were  ^  fevcral  Intereft';,  a»  if  5  feveral  Grants 
had  been  made.     Jo.  6.  pi.  4   S.  C. 

2.  But  \%  12  Cat>  15.  betUieen  Leg?  and  Sk  Amhotiy  Agcr  \\\  <&\tZ-  See  Co  Litr. 

tione  firmae,  ati)ungeii  per  curiam,  tbat  if  Lefibr  of  an  SD^ouifon '^j'];,'e'„"/ 

ufurps  upon  his  Leflee  tor  Years,  tOat  ti]i0  flnlH  UOt  OUfl  t()C  IClTee  Of  of  pi  i 

tlje  ncrt  ^urn,  becaule  Lclfor  cannot  maUe  am'  itfurpation  upon  above, 
bimfelf  for  tljc  prinitp  between  tljem ;  ann  tberefore  lijis  j^rcfenta^ 
tion  upon  tbe  Lelfee  onlv  bars  tbe  leffce  for  tljis  Curn  onlD,  ano  bis 
Cftare  not  turneb  to  a  Eigljt  i  ann  ni  tljis  Cafe  tljej>  bemeb  tijc  faiD 

Cafe  of  %)\X  William  Ellwayes  and  'Tailotir  tO  be  LaiU* 


(H.  c.  2) 


I.  next 


A02  Prefentation. 


(H.  c.  z)     frho  lliall  hQfijid  to  be  the  IJfurper. 

I.  T  F  a  Head  of  a  Corporation,  by  a  "-jsrong  Name  of  Incorporation,  pre- 
J[  fents  a  Clerk,  who  is  Admitted,  lalHtuted  and  Inducted  ;  the  Parry 
who  is  prefented  lliall  not  by  the  Prefentmcnt  be  the  Ulurper,  becaule 
the  Prefentmcnt  as  to  him  (being  by  a  void  Name  of  Incorporation)  i? 
void  in  itfelf,  and  he  by  this  gains  nothing  at  all  (the  Prefentation  of 
him  being  by  a  contrary  Name  differing  from  the  Name  of  the  Founda- 
tion y)  but  this  Collation  here  by  the  Bilhop  lliall  make  Him  to  be  the 
Ufurper.  Per  tot.  Cur.  i  BuM.  91.  Mich.  8  Jac.  Dr.  Ayray  v.  Sir  Ri- 
chard Lovelas. 


See  (Be)      ^j^  c)    Ufurpation.     Upon  whom.      Upon   the  King. 

[Or  others.'] 

For  the  Ad-  I*  T  Jf  tljC  l^inij  llC  feifed  of  a  xManor  to  which  mt  !3tll)Oluron  IS  (IDpei!^ 

vowfon  was  j[  onnt,  tljc  Cijurcij  liccomcg!  iioto,  aiiD  a  ©ttaiisci  uiurps ,  rijis 
always  ap  jjj j^gj  jj„p  murpatiOH  fls*  to  tljc  Jnljentnncc ,  for  tlje  Hing  map  urant 
fhe  inhe,r°  tijc  o^anot  UJiti)  tlje  anijoiufan  appcntinnt,  aim  m  iiJatnircc  iijad 
tance  v>aflcs  prcfciit  to  tljc  a^oiHauce*    *  ipobart  .0  Ecpoits  189. 

to  tlie  Gian- 

tee,  and  is  not  made  difappendant,as  in  Cafe  of  a  common  Perfon  ;  for  tbe  King  cannot  be  put  out  of  Pof- 
feflion  ;  but  the  Patentee  fhall  not  have  Quarc  Impedit  of  the  firlV  Difturbaiice  ;  for  that  Prelentment, 
being  a  Chofe  en  AAion,  doth  not  pafs  unlefi)  mentioned  in  his  Grant.  And  if  the  Patentee  brings 
Quare  Impedit  on  the  id  Advoidance,  he  ^i.ill  make  his  Title  hy  the  Prefentment  of  the  King  not  mak- 
ing Mention  of  the  Ufurpation.      5  Le.  l".  pi.  41.  Mich.  14  Elii.  Anon  • 5  Lc  rti.  pi.  S9.  Mich. 

iS  Klii.  C.  B.  thcS.  C.    in  the  fame  Words.. Dal.  75.  pi.  i.  Anno  14  Lliz.  S.  C— ''Hob.  242. 

2.  But  a  C^an  map  uriirp  upon  the  CHieen ;  for  tijc  pfenartp  $ c.  H 
gooDPlea  agama  Ija**  i8(!£.  3.  2.  aoiungcD*  isut  tijecc  CiUicrc* 

3.  This  DfurpiltiOn  is  only  to  the  Prefentment. 
A  Man  may       4-  ^  S^aU  ItiaP  Uftttp  UpOU  tljC  t^tlig,  ilUtl  pot  him  to  his  Writ  oi 

ufurpupon      Right.  18  (£t  3.   16. 

the  King,  if  .     ' 

■his  Clerk  be  received,  as  well  as  upon  a  common  Perfon  ;  Quod  Nota  ;  and  this  put's  the  King  out  of 

PoflclTion.  Br.  Qviare  Impedit,  pi.   59.  cites  Fitzh.  (^uare  Impedit  1 5  and  iS  E.  ;.  15 5;;/ Brooke 

lays  it  is  faid  elfewherc,  that  Lapfe  fliall  not  hold  Place  agamll  the  King  ,  for  Nullum  Tempus  Oc- 
currit  Re£;i  ;  and  from  hence  it  fcems  that  the  King  m.iy  have  Quare  Impedit  afier  the  6  Months,  if 
tke  Chiirch  be  void,  but  it  it  be  full  byPrefeiitiithn,  and  vo  Patron  nor  Incninleiit  alrje  ivho  may  be /aid  Difiu/h- 
er,  ag;ainji  ivhcni  tie  King  may  recover,  the  King  is  pit  to  his  Writ  of  Richt  ot  Advowlbn  ;  Contra  it  feems 
where  they  are  alive  ;  for  Plenarty  is  no  Plea  againft  the  King.  Per  Cand.  but  Belk.  contra. 

In  Quare  Impedit  it  is  admitted,  that  two  Prefentatwns  fball  put  the  King  out  of  PoUcffion,  mui  p:it 

lim  to  his  Writ  of  Right  of  Advowfon.  Br.  Prefentation,  pj.  9  cites  4-  E.  :;.  4. .'Vna  fay.s,  fee  24  E.'  ^. 

-  -.  Tiiat  the  King  "fhall  have  f^uare  Impedit  or  Writ  of  Right  of  Advowlbn,  and  fonie  other  Aciions. 
And  Brooke  fays,  from  hence  it  feems  that  the  King  may  be  out  of  Puffellion  Ibid. Br.  Preroga- 
tive, pi.  9.  cites  S.  C. Br.  Quare  Impedit,  pi.  39.  cites  S.  C   and  21  E.  5.  accordingly S.  P. 

Br.  Prerogative,  pi.   no.  cites  41    E.   5.    10. -Vaughan    Ch.  J.  faid,  That   the  Reafon  why  mv 

['ftirpations  put  the  King  out  of  Pcjfejjion  is,  that  after  the  Death  of  the  firft  Incumbent  there  is  none 
againft  whom  he  may  bring  his  Action.  2  Jo.  10.  in  Cafe  of  the  King  v.  JervLce,  cites  Stamf.  Prer.  39. 
54.62. But  fee  pi   5- 

*  S  C  ad-  5.  <a  C15an  cannot  UfUrp  upon  tljc  iMW^  for  the  Inheritance  and  put 
judged  in  C.  Y{\m  to  his  ^V'rit  of  Right  though  he  prelents  twice.  \^^  13  3!fl[»  "B*  * 
t1reT)pinion  COIltCa  atl)UDgCtl  llCtWCeU  tI)C  KtHg  j^laintlff,  and  the  Rijkop  ofWm- 
ofAnderfon  chcjlcr  and  Matthews  DCfCilUaittg,  iD»  18  CI.  35i-  22.  D.  28  J;» 
Ch. J. there,  8.  24.  153-  CO.  6.  Greene  30.  CItCjS  P*  25^1.  'B.  filtriltUr.  03*  21, 
that thcKing  2.    eU    KOt.    22i3.   iKtUlCCn  ^  Pefcod    and  Jardlev.    aDUJ5n;Ctl,   tljilt 

'■{^f.  '^° '"'  tjoubic  or  treble  iifurpatiou  bP  fcBcra!  pafoii^j  mt^  not  rani  tDe  sw 

l^critnnce 


Prefentation.  ^o:^ 


!)critance  of  tl}e  atiuoujfon  out  of  tijc  IMim ;  foi'  tt  10 permanent,  am  R.gt,t   buc 
t3  not  Dcucftea  tljcccb})*  tno.-  being 

P            .  brouglit  in 

HR.  this  Judgment  was  rcverfed,  by  the  Opinion  of  Pophain  Ch.  J.  Yelvenon,  Williams,  aiid  Tan- 
field,  Feniier  bei'15  e  contra  ;  and  they  alleged  two  Realbn.s,  ift.  The  Rij^ht  of  Patronage,  and  the 
Advowion  itfeU  being  an  Inheritance  in  the  C^rownot  Record,  the  Law  (b  protedts  it,  that  by  no  Tort 
done  by  a  Subject  it  can  be  diverted;  For  in  Cafe  of  the  King  tiiere  ought  to  be  the  fame  Means  to 
dived  it  out  of  the  King,  (vi7.  a  Record)  as  there  is  to  intitle  hijn,  and  here  is  no  Matter  of  Record 
sgainil  the  King;  For  the  Picfentation  by  a  Subject  is  only  Matter  in  Fad,  w  hich  Acf,  though  it  is 
mixed  with  the  judicial  Ad  of  the  Bifliop,  yet  it  fliall  not  prejudice  the  King,  in  as  much  as  it  is 
grounded  only  up^on  the  Tort  of  the  Subjctt.  2dly,  No  Man  can  (hew  when  and  a't  what  Time  the  Usur- 
pation upon  the  King  commences  ;  For  there  is  no  Doubt,  but  after  the  6  Months  palfcdfrom  the  Ir.cum- 
bency  he  may  well  prelent;  for  Plenarty  is  no  Plea  againll  the  King,  8c  Nullum  Tcmpus  Occurrit 
Regi,  and  after  fuch  Ufurpation  upon  the  King,  there  is  no  doubt  per  Cur  but  that  the  Patronage 
is  yet  in  the  King  to  grant.  And  they  all  held, that  during  the  Life  ot  the  hrft  Prefentce,  there  is  no  doulc 
butthat  the  King  may  prelent,  and  then  the  Death  ot  the  Incumbent  cannot  make  that  an  Ufurpation 
which  was  not  fo  in  his  Life;  for  his  Death  is  a  Determination  of  the  firft  Tort,  which  will  rather 
aid  than  hurt  the  King.  And  per  Tanficld,  according  to  this  Refolution  it  was  refolved  alfo  2;  &  24 
Elii  C  B.  in  one  JBarOlcp'^J  Cafe,  though  in  tliat  Cafe  there  was  not  any  Induction,  which  was  the 
Keafon  that  the  Opinion  of  the  Judges  was  not  delivered  in  Point  of  Judgment,  but  all  were  of  Opinion 
as  they  in  this  Court  now  are  ;  and  no  Book  in  the  Law  is  contra,  but  only  a  glancing  Opinion  in  4-;  E. 
5,     19  E  5.  and  18  E.  5.  Yelv.  90,  91.  Trin.  4  Jac.  B.  R.  the  King  v.  Matthew Noy.  iS.  S.  C. 

f  Mo.  ;;8.  S.  C. accordingly,  by  Name  of  Yardlcy  v.  Prelhvood And.  Si.  pi.  14;.  S.  C  ac- 
cordingly  Cro.  J.  125.   S.  C    accordingly,  by  Name  of  the  King  v.   Champion. 

^H-ui- Ii  :l>er!rt  by  the  Khi^,  the  Defendant  pleaded,  iLit  tie  Chun  h  11.1  i  full  the  Day  of  the  Writ  fur^ 
ch.ifed  &c.  and  :^  his  Counfel  demanded  Judgment  of  the  Writ ;  Et  non  Allocatnr  againft  the  Kint"-. 
..'ind  there  i:  is  agreed  in  a  Manner,  that  PIcnarty  is  no  Plea  againft  the  King  claiming  in  his  own 
Kight,  or  in  another's  Right,  by  which  the  Defend. u:t  allej?,ed  f^o  f'-efe)itn:ehts  m  his  Jrieflor  one  alter 
ancti  n;  to  prove  Ufurp.uioii  to  put  the  King  out  of  Pojj.^ffon  And  per  Belknap  clearly,  this  flia!!  not  le'rve 
agaiafl:  the  King,  by  which  Candifh  dared  not  demur,  but  traveried  the  Prelentment   of  the  King.     Br 

Plenany  pi.  i.  cites  45  £   5,  14 Ufurpafton  upon  the  King  does  not    gain  PofielTion.  Fir.  Oaarc 

Impedit,  pi.  28.  cites  S.  C.  But  i3roukc  fiys,  (>ua;re  inde ■  :|:  Orig.  is  (Counlel  de   luv  in  Judg- 
ment Sec) 

In  a  fpecial  Verdiift  in  Trefija's,  it  was  adjudged.  That  an  UJiirpation  on  tie  King's  Thle  by  Prefenta- 
tion will  put  him  out  ot  PoHeirion,  and  he  /;  put  to  his  ^'i.ire  Itiip'dit,  and  cannot  prcfent,  till  the  in- 
cumbent is  removed  by  Judgment.  •■  A/i  double  or  treble  Ufuipitions  by  feveral  Perfons  fhall  not 
g,iin  the  hj.eritjnce  of  the  Advowfon  oat  of  the  King  ;  for  th.at  is  permanent,  and  cannot  be  devell- 
ed.     Whereas,  as  to  Prefentation,  the  King   may   be  put  out  ot   l^olfell'-on,  becaulc  that  is    tranfitorv. 

Adjudged  d  Rep   ;o.  a    Trin,  44  Elr.-,.  B.  R.  Green's  Ca'e. S.  P.   determined  on  a  Writ  of  Error. 

Cro.  J.  12:;  the  l^^iUa  li.  CtO^lini^lOtl,  with  this  furtlier  Keafon,  That  the  King  is  put  to  his  .Action 

of  Quare   Irapedit,    becaufe    R.ealbn    requires   that   the  Church   fhnuld   be  ierved-  Cro.  J.  585. 

the  King  v.  the  BiHiop  of  Norwich.   S.  P.  adjudged. *  Cro.  El.  519.  in  HulTey's  Cafe.  S.  P. 

6.  C{3e  Patentee  Of  tljC  MWQ  Of  ilH  l^p^OlUfOn  prefents  twice  tO  tfjC 
(KljUrt't)?  ^"d  his  Clerk  is  inltituted  and  indutk'd  where  the  Patent  was 
void  in  Law,  and  *  it   did  not  pafs  bv   the   Parent,  R't   tl)C   PatCiltCe 

IM  fo  mnta  tijc  paflcirtan  of  tOc  Sniiouifoii  Iid  tlji^  ufurpation  n= 
gains  all  strangers,  rijat  at  tije  nert  auoioancc,  ff  Oe  Uc  tiUturbco,  he 

mav  maintain  againlt  a  Stranger,  u  ho  makes  iio  '1  itie  thereto,  an  Allife 
oi  Darrein  Prelentment.  "£>,  18  d.  351-  22.  liilOjUiiljell. 

7.  riil  ItfurputlOU  map  be  upon  a  Feme  Covert.  50  (!j»  3.  13.  b*  tit  If  a  Feme 

Ad  vow  fon, 
and  take  a  Husband,  and  the  Church  voids,  and  the  Stranger  doe.s  prefent,  and  the  Husband  futters  an  U- 
lurpation  6cc.  By  tliis  U'urpation  the  Wife  Uiall  be  out  of  PcffefTion  after  the  6  Months  pall-,  and 
flie  fliall  be  put  to  her  Writ  of  Right  of  Advowfon  if  fhe  have  prefented  before  ;  and  if  flie  ha'.-c 
not  prefented,  flie  is  without  Remedy  ;  But  otherwifc  it  i.s,  if  the  Feme  h.ith  an  AuvowlLn  by 
Delcent,  or  bv  Courle  ot  Inheritance.    F.  N.  B  34.  (S.) 

8.  5fa(tomniCinl3erfonufurpsi  upon  ttc  £<mn;,  anO  l)ig  Clerk  But  theKi.ng 

i£j  atmiittCm  mfiltUtCD  anO    inducted,  the  King  is   put  tc.   his  C^uare  "'•'y^'^- '"I 

Impedit,  ana  cannot  prcfent  till  tOc  Jncuuiijent  i.s  vemoiico.   Co,  i.npe^itat 

6.  GrcaiC  30.  any  Time 

during  the 
Lives  of  the  Patron  and  Incumbent  or  of  the  Incumbent  only,  tho' it  be  aftertlie  6  Months.     Jir.Qia- 

re  Impedit,  pi.  ;9.  cites  4-  E.  3.  4. ■ If   there   be  an  L-JnrpatioH  upon  the  hing  ly  hy  a  lon^p'e.U  I'le- 

i:.v,-ty,  the  King  cannot  prefent  to  the  Church  before  he  hasicmiived  the  Incumbent  by  (!^u.ue  Impedit, 
Icart  Contentions  might  grow  in  the  Church  between  the  tevcr.il  C^l.iiners  ot  the  Bercticc,  to  the  Dif- 
turbance*  or  Hindrance  of  Divine  Service,  and  this  was  by  the  Common  Law.  But  m  that  Cife  the 
Kmg/j  only  put  ouiof  PcJJ'eJfon  as  to  the  bringing  of  an  J:!icr,  but  the  Inheritatice  of  the  Advowion  is  not 
dcveiled  out  of  hini.  2  Inll.  55S. 

9-  F 


40+ 


PrefentatJon. 


5.  C.  ]o  9  'iXt\)t  W  ard  ot  the  King  hus  an  Advowlon  in  Grofs,  ttll)CCCOfl)E 
4z6.  by  the  j^  fftffQ  m  Jfff^  but  this  is  not  found  in  the  Office,  aalD  attCt  ttJC 

£rn°r  ii  Cijurcl)  ^oiQs,  tOouijIj  tljc  l^tno;  nuD'  pitfcnt  tljcrcra  imtljautani) 
ff;'£,iiff^®tttcctljcrcotfounri,  j^et  if  n  €>traimcr  prcrents,  aim  Ois  Clerk  isi 
.^HD  Bur.  m  bP  6  ^ontijs,  ntin  after  tlje  Dcir  fuc^  Li\5crp,  tljia  is  an  iifurpa^ 
gtavs  of  tion  updn  the  Heir ;  jfor  ti)c  ixuus  untijout  fuci)  SDtttcc  Daa  not  aiip 
Dtrbv,  who  ptJlTcmon  tljercm  to  protect  tijc  3nDcritaiiceof  tijc  f^ar.  Dili.  14  Car". 
wicrla-iic  'B.  K.  bctiDCfii  f^'irprr  :mi  Unrfd^ic  m  Wut  of  Crtor  iipou  a  InQg^ 
and  rhete'  ivicnr  III  ^Aixk  lu  Ciiuirc  Inipcoit  nojiiDpD  per  Curiauu  3iv 
i;.mc  Point   tratur* 

was  agrcei  ; 

becaulcthe  King  for  want  of  an  Office  found  had  not  gained  any  particular  Ertate,and  (orhis  is  fiichUfur- 
pation  as  wiil  dcvelt  the  whole  Intcrelt  m  the  Advowfon,  and  put  the  Htirout  of  P(.nL-irion.  Bi:t  if  an 
(j-ffice  he  foia.d  in  fuch  Ca'e,  and  thereby  the  King  intitled  to  the  Advowfon  during  the  Non-age  of 
tnc  Heir,  and  a  Stranger  preicnts  to  an  Avoidance  happening  after  tlie  Death  of  the  Anceftor  and  the 
.Office  founc),  this  fhall  rot  devell  the  Rcverfion  out  ofthe  Heir  ;  For  tlio'  the  Stranger  has  by  his  pre- 
fenting  gained  the  Pollellion  ofthe  Advowfon  Pro  hac  Vice,  yet  this  does  not  devell  the  Ertate  ofthe 
Kint;  during  the  Nonage  ofthe  Heir;  and  if  the  Ellate  of  the  King  was  not  devefted  out  of  him, 
the  Inheritance  fhall  not  be  ;  For  fo  long  as  the  particular  LeiTce  or  Grantee  for  Years,  or  the  Lord 
by  reafonof  Ward  is  in  PofleiTion,  the  Reverfion  fliallnotbe  devclled  or  turned  to  anakedKight. 

10.  If  an  Infant  piir  chafes  an  Mvo'-jcfon^  and  Ufurpation  is  had  upon 
him,  he  fhall  not  avoid  it  by  Nonage  ;  For  the  Statute  fays.  Per  Negli- 
gentiain  Cujfodum,  which  is  of  an  Intant  who  is  in  by  Defcent  i  For  an 
Injant  and  i-'cme  Covert  were  bound  by  Ulurpation  at  CMinnon  La'S)  af- 
ter 6  Months.  Br.  Coverture,  pi.  70.  cites  35  H.  6.  62. 
4  Le.  209.  II.  The  A7;;_f  v^'^sfeijcd  of  a   Manor  to  isohtch an  Adicwfon 'was  Ap- 

p'-.?^9'  pendant,  and  the  Church  being  void,  a  Stranger  prefnted  A.  who  was 
p.p    „'?.      in  by   6  Months   unkncuun  to  the   Council  of  the  King  who  afterwards 

6.  C.  Anon.  g^'^fJted  the  A'fanor  with  the  Advowfon  to  W.  R.    Then  A.   died.     It  was 

held  per  Cur.  that  the  Grantee  Ihall  prefenr,  becaufe  the  Advowfon 
was  always  appendant,  and  the  Inheritance  thereof  palled  with  it  to 
the  Grantee  ;  for  it  was  not  made  Dilappendant  by  this  Ufurpation 
unto  the  King,  though  in  the  Cafe  of  a  common  Perlon  it  had  been  fo, 
until  he  had  continued  it  and  made  it  appendant  again  bv  a  Writ  of 
Right  of  Advowfon.  And  it  was  agreed,  that  W.  R.  the  King's  Paten- 
tee ihall  have  the  next  Avoidance,  (though  he  could  not  have  the  pre- 
fent  Avoidance  for  want  of  being  mentioned  in  his  Grant)  and  in  Qua. 
Imp.  to  be  brought  by  him,  he  lliall  make  his  Title  by  the  lall  Pre- 
''  fentation  ofthe  King,  without  making  Mention  of  the  Prefentment  of 

■^  the  Stranger.     Hob.  140.  pi.    192.  Mich    13  &  14  Eliz.  Anon. 

12.  It  was  held  by  all  the  Juftices,  That  no  Ufurpation  can  be  upon 
Parfon  i?nparfo»ce.  PI.  C.  501.  Mich.  18  &  19  Eliz.  Grendon  v.  Bilhop 
of  Lincoln, 


(K.  c)   Ufurpation.     Upon  whom,     h  refpeSi  of  Ejlate. 

S.  P  if  the    I.  Tif  two  Jointenants  atC  reiTCtl  Of  an  aUllOUlfOn,  aUQ  tIjC  one  pre- 
Advowfon         J[  f^^nts  alone,  pCt  tlji0  tlOeg  HOt  pUt  tlje  OtijCt  OUt  Of  POlfClTfOnv 

te<7fm;</.r«/,p^   7  313.115*  bcttteen  Km  and  the  Bipop  of  Bri/ioL  Q15CCaitfC  tfjC  ©t^ 

butitie.ves  t,t„jirp  ^t^igijt  ija^e  rcfufeu  tlje  Clerfe,  anp  Jjpfeafoit  of  tljcitjomt 

others  for       CltlC.    27  I^.   8.    1 1 .  U* 

Title  in 

Quare  Impcdit  after  his  Death.  Br.   Prefentation  al  &c  pi.  T.  cites  27  H.  8.   l.     But   he  fays.     Quae- 
re if  it  had  been  an  Advowfon   in  Grofs. If  one  prefents  alone,  and  his  Clerk  is  indufted,    the  other 

is  out  of  Pofleffion.  Br.  Quare  Impedit,  pi   52.  cites  11  H.  4.    54.  per  Hanke.     And  Brooke  fays,  the 
King's  Attorney  in  35  H.S.  agreed  with  HanJee  clearly. 

2.  So 


Prcfcn  tation .  ^  q  s 


2.  So  one    Tenant  in   Common  Ot  illl    ^OllOturotl  prefCntfli  iliOllC,  ^^-  I'leicnu- 

tW  Hoes  not  put  tfjcotljci-  out  ofpoficffioii,  {?,  7  Ja.  13.  bctiuccn  ''"';'•  p'  '• 
mitertimtijc'Bifljopof'BnSoK  ("J™f 

this  Poi::r. 

3.  One  Coparcener  caniiotufiirp  iipoii  tl)c  otljct  bp  ptcfcntlno;  alone  ^"^  '^'-•"i  "-^ 
Uiitljout  tlje  otljcr.  17  C*  3.  37-  b.  i3»  7  Ja*  X%  D.  9  ^i^U  259.  ^'"-««^'-?'^- 
20.  Diibitatia-  IS  e,  3-   amfc  Darrein  li)rcfcntment,   u.  9  cJ^!,rZfZ 

3-  39'  Cepanever, 

this  docs  not 
put  Iier  to  lier  Writ  of  Right  of  Ailvowfon  as  U'urpation  made  by  a  Stranger  fliall  do,  by  icafbi)  (.f 
tlie   Privity,  fo  that  flic   lofes   nothirg  but  this  Turn,  and  fliall  have    licr  Turn  ag;iin    when  ir  cdmes 

to  her   Turn  again      Br.  Qiiare  Iinpedit,  pi.  i;9    cites  22  £.4.8. S.  P.  Br.Ciuare  Impcdit,  pi, 

15".  cites  2  H   7     14. A  drCc.iH/Pff  of  Coparceners.  Br  Qii.s  re  Impcdit,   pi.  iiy. 

Hen    Pre/ertaticns  by  one  Copartcner   fhall  n<jt  ouft  tlie  ether  of  his  Turn,   tho'  the  rt  Months  pafs* 
For  there  is  Prhity,   and  they  claim  by  one  and  tlic  fame  Title  ,  per   Brud.  Ch   J.  in  C.  B.   Br.  Pre-' 
icntation,  pi.  25.   cites  14  H.  S.  2. 

4-  3if"ttD0  Coparceners  make  Partition  to  prefent  by  TurOj  tI)C  CltC  ^^"-  ^'-^'^''■ 

\mv  uftirpin  tbeCiirnof  tljc  ctbcn  30  €»  3-  15-   '  ll^'f,  ~ 

5-  But  lUCl)  ItfUrpntlOn  does  not  bir.d   IjCt  UpOIl  UjIJOJU  tfjCUflirpa-'  jpcbVo"'"^' 
tiOn  10  at  her  next  Turn,  bUt  tijilt  tl)C  lliap  ptCfeHt.  214.  cap'  15. 

6.  3if  2  Coparceners  make  Partition   inChanceiv,    or  mnl^C  Compo- cites  S  C. 
fition  bv  Fine  to  prefent  by  Turn,  anH  aftCl'  tijC  OUC  ptflCntS  Ul   tl)Z  Watf  Comp. 

Curn  of  tl;c  ot!jcr,  pet  tW  liotl)  U3t  put  Ijcr  out  of  i^uircfiton,  but  ^"^  "''"• 

t!jat  fijC  UiOp  ptcreilt  to  tSjC  nittCurn,  anHtijlS  by  the  Aid  of  the  Sta-  ^^;'^4-  «p^i3. 
tuteol  V\  eltminlter,  2  cap.  5.  or  bv  the  Comnion  Lav.-.  33(£*  3.  ClUCirC       ^        " 

2!npeJ!it  196. 

7.  Clje  Dean  Ul^.p  UfUfp  upon  the  Chaper  bv  prefenring  alone,   UJiti> 
out  tije  CijtiptCr,  to  an  Advov\fon,    whereof 'the  Chapter  is   leifed    by 

themieives  Cii^  It  fccm^,  tijo' botlj  nrc  rpicitunl  |^crfon0»  17  €,  i. 
64.  b. 

8.  jr  2  Churches  arc  united  and  ronfl^lidated  tw  OUC  by  the  A  (Tent  of  JJ-'J^,,^""'!'- 

both  Patrons,  antiit  10  apccQ  tS)cp  fijail  prcrcnt  cOcrcto  'Qltcrms  iDtd=  cap  ,5.'ciccs' 

bU0  for  etlCr,  anti  after  tijC  one  prelents  in  Che  Turn  of  the  other.  tOl0  ^■'<^- 

10  an  iDfurpation  i  for  tijcp  arc  not  lU^e  to  Coparceners  uiijo  arc'priuy 
in  oaiooD.  D.9-  €1 259. 20.  '  r\^ 

9.  ^0  if  A.  feifed  in  Fee  of  a  Manor,  to  which  aU  ^UllOturan  !0  ap=  *  ^'"i 
pCnDant,  makes  Compohrion  with  B.  by  Fine  to  prclenc   bv  1  urn  i  l3p  ^-^      — 

tljis  €ompofition  tlje  atmotnfon  i0  appendant  eiscrp  2ii  ciu-n,  anti  n'  tc%!^o"'^' 
tljconeufurpupontljciKurnof  tl)Coti;cr,  tlji0  lljaUputljIm  out  ofzis.cap  i^ 
prcfcntmcnt  -,  13etaufe  tijcp  arc  not  Privies  m  Biood  ap  €oparcencr0  ^tes  s.  c. ' 
arc,  norinEitate,  a0  lamteuants,  or  xS^enants  in  Common  are.  ^^■-^'9'' pi  2- 

D,  9-  €1  259-  20.  ;'!"  -^5  £  v 

10.  3:f  I  ^im  feifed  Of  HU  StlliJOlDfan,  and  prefent  thereto  as  Procurator  of  F  n  B  -? 

j.s.  tl)t0  fljall  be  an  iifurpatiouupon  aipftif.  17  C  3-  60.  aHiutiijct!.  tOjcias' 

Ow.  142.  Rudd  V.  Topfcy.  cites  i;  E  5.  5  &  24  H  6. Sec  (F  b)  pi.  j. 

11.  Jf  a  ^an  grants  2  next  Avoidances  to  J.  S.  auD  afrCt  a  Stranger  „,    ,  _ 

ufurps  upon  the  firii  ^Iboiuance,  ti)i0  fljoU  U  Bu  iiiurpatiou  upon  iije  jnc's  """^^ 
sDauoirsancc,  fo  ttiat  Jt  10  turnco  to  a  EtffOt;  anti  liccaufc  tIjc  o?ran=  2.-.  can ,, 
tee  cannot  |)a\jca!i©rit  of  Hict)t,lje  i0  toitijout  Kenicnp,  ^^,  16.  3  a.  ^tess  ci: 
15,  betiueen  '^>'-  w7///^z;/7  ehis  ano  laykr.  per  Curiam.  ^"  «iiercrhe 

'-rantur 

himfelf  ufurps  upon  the  firft  Voidance.     Sec  (H.  c)  pi.  i.  and  the  Notes  there. •  ButlbiJ.  pi.  2  is 

Contra. 

12.  3if  2  Jointenants  of  a  Manor,  to  which  aU  SOtlOtofOn  i0  appCU^    See  pi  i? 

iiantare,  dnt>  tlje  Cljurclj  iiciir;0,  ann  tbe  one  preients  alone,  tDi0i0 
not  anp  ufurpatton  to  Ijis  Cor.ipanion,  but  it  i0  gooD  <s:itlc  at  tljc 
itei:t!a\)oit!ancciu  a  Ciuare  Jmpemt  to  aUege  t!)i0  prefcntnient  w 
tlje  one  to  fcrvie  for  botij.  27  lo.  u.  n.  b. 


40(5 


Frcfentation. 


By  the  Com-      ij.  i^  E.  I.  r^/).  5.  S.  5,  Enafts,  That  a'Ar// i7«  Advowfon  dcRcnds  unto 
"'"'"^*"'>  '^Parceners,  tho'  onepieicncs  twice,  and  itfiaps  apon  his  Co-birr^  yet  he  that 
fondel^end-  "Joas  negligent^  Jhall  not  be  clearly  barred ,  but  another  Time  jbj.ll  have  his 
ed  to  liivxi-s   Ttim  to  prcfefjt  lukefi  it  falls. 
Coparceners, 

iFthcv  cannot  agree  to  prefent,  the  Eldcft  fliall  have  the  iftTurn,  and fo every  one  according  toSeninrit\', 
and  this  Pi  ivilege  extends  not  only  to  their  Heirs,  but  to  their  Affignces,  whether  they  liave  their  filiate 
by  Conveyance,  or  by  Act  in  Law,  as  Tenant  by  the  Curtefy,  and  therefore  aitliough  the  Coparceners 
do  make  Compofition  to  piclent  by  Turn,  this  being  no  more  than  the  Liw  appoints,  (Exprellio  eorum 
CU3E  lacitc  inlunt  nihil  operatur)  they  remain  Coparceners  of  the  Advowfon,  and  the  Inheritance  of 
the  Advowfon  i^  not  divided  ;  ard  rotwithftanding  this  Compofiliop,  they  may  join  in  a  Qijare  Impedit  if 
any  Stranger  ufurp  in  theTurnof  any  oftheni;  and  the  Ible  I'refentation  out  of  her  Turn  did  not  put  her 
jfter  out  of  Poffellion  in  refpci't  of  the  Privity  of  Eftatc,  no  more  than  if  one  Coparcener  takes  the  vviiole 
Profits,  ilnft.  ;65. 

This  Law  doth  cxfeW  to  Uj'urpation  by  one  Coparcener  upon  another  ■2i%  v.'z\\  before  Partition  as  after.     2 
Inlt  365. 

14.  A  Man  feifed  of  a  Manor  'is)ith  Jldvoiscfon  appendant  had  IJJtie  fvttr 
Daughters,  and  died,  and  they  made  Partition  of  the  Aianor,  and  that 
eachpotild  prefeiit  by  Turn  in  Degrees^  as  their  Jgc  ciV'?.f,  by  which  the 
Eldeji  commenced  &c.  and  her  Clerk  wasiUy  and  after  the  Eldefi  died, her  Heir 
"■joithtn  Jge,  and  fuund  bf  Office  for  the  King.,  and  he  feifed  the  Ward,  and 
after  the  Church  voided  again,  and  the  King  prefented  in  Tarn  of  the  fe- 
cond  Daughter :  And  per  Catesby  the  King  prefented  in  Right  of  the  fe- 
cond  Daughter,  and  therefore  his  Prefentment  in  the  Turn  of  thelecond 
Daughter,  does  not  put  her  to  Writ  of  Right  ot  Advowfon  i  But  to  this 
Brian  and  Choke  were  llrongly  Contra,  and  that  it  wasUfurpation  j  For 
there  is  no  Prrjity  of  the  Partition  in  the  King,  and  this  Prefentation  is  in 
Jure  Regis  Propria,  as  Lord,  and  never  fhall  make  Title  to  the  Heir  in 
Quare  Impedit.  Br.  Qtiare  Impedit.  pi.  139.  cites  22  E.  4.  8. 

15.  Where  there  is  a  Corporation  of  Mafhr  and  Confrerers,  and  the  Afaf' 
terprcfents  in  his  own  Name,  this  will  not  put  theSuccclfor  out  of  Poii'ef- 
llon  ;  For  he  cannot  do  a  Tort  to  himfelf  ;  per  Fitzjames  Jullice  ;  and 
all  the  Jultices  in  B.  R.  weie  with  the  firlt  Judgment.  Br.  Prefentation. 
pi.  23    cites  14  H.  8.  2. 

16.  If  2  Jointenants  prefent  one  of  themfches,  this  does  not  gain  Pof^ 
feffion  ;  For  it  is  not  a  Prefentation,  but  a  Prayer  to  be  admitted.  Per  Fitz- 
janies.  Br.  Prefentation,  pi.  23.  cites  14  H.  8.  2. 

But  if  a  i-y.   Where  a  Bipop  p/f'ers  an  Ufurpation  of  a  Church  in  Right  of  his 

Bifhop  be  Bilhoprick,  it  lliall  not  bind  his  Succelfor,  but  himlelf  only  during  his 
fi^'Advow  Time  i  And  it  was  reiblved  by  all,  that  Ufurpations  fjall  bind  the 
ron,  md  M- Bipops  V'^ho  fufler  them,  but  mttkeir  Sttccejfors  ;  becaufe  it  is  within  the 
fers  an Ufur- Statute  I  Eliz.  which  reftrains  Alienations  and  Grants  hy^ifliops  &c. 
pation,that  ^j^^j  judgment  accordingly.  Cro.  J.  673.  Mich.  21  Jac.  B.  R.  Dalton  v. 
Shr;       BilhopofEly. 

Succeflbr.      Per  Hobart  Ch.  J  Ibid. 

^■"■^"T-  18.  When  one  ufurps  upon  z  Lejfee  for  7'ears,  this  gains  the  Fee,  and 

S  c' "'"  puts  the  true  Patron  out  of  Polleffioni  And  though  by  the  Statute  of 
W.  2-  cap.  5.  he  in  Reverjion  after  the  Leafe  may  ha've  a  J^iare  Impedit^ 
when  the  Church  is  void,  or  may  prefent^  and  if  be  does  prefent,  and  his 
Clerk  is  admitted  and  induced,  then  he  is  remitted,  yet  till  it  be  recovered, 
or  his  Clerk  be  in,  the  Ufurper  hath  the  Fee,  and  the  Writ  of  Right  lies 
againft  him,  and  that  defcends  to  his  Heirs.  Hutton.  66.  Rudd.  v.Bilhop 
of  Lincoln. 


(L.c) 


PrefentatJon.  407 


(L.  c)    UHirpatlon,     Upon  whom.     In  what  Cafes  Ufur- 

pation  *  npo}i  om  Jhall  be  tipoji  others,  at  the  Common  *scc  ch.c), 
Law. 

I.  tJF  Lefrce  for  Years,  Ot  Guardian,  brings  Qiiare  Inipcdit,    tIjO'  t!)C 

A  Defendant  has  Writ  to  the  Eilhop  iia'aUlft  tljC  CCrmOl*  01"  ^WiXX- 

5ian,  anO  IjtjS  PltfCntCC  aCCCpteH,    pet  tl)e  Tenant  ot  the  Frankteiu- 

ment  igi  not  ptitout  Of  potTcmantDcfciiu.  50  (£.  4.  14.  b.  €\\m. 

2*  Jf  3  Coparceners  make  Partition  to  prefent  hv  Turn,  flntl  fljC  El-  S.  P  Witf 
dclt  ulurps  in  the  Turn  of  the  Middleinolt:  ;  tljtS  fljall  llOt  DC  m\>  llfllt^  9-''"''-  ^'"^• 

pattou  upon  tlje  Cutn  of  tljc  I'oiunjca*  *  3"  €.  i.  s.  «?•  iV tites 

Kc-ilw.  I.  2 

Inft.  '/>';.     2  H.  7.  4.  5.     22  E. 4.  9. *  This  feems  mifprinted  for  30  E  3    (15^  and  i:;  the  Cafe  of 

Sir  Richard  Talbot  v.  t!ie  Bifliop  of  Hereford. 


agreement 
between 


3.   [So]  if  3  Coparcener^  arc,  anl!  tljC  Eldeft  prefents  in  her  Turn  The  Court 
without  Partition,  and  attet  a  Stranger  Lilurps  in  the  Turn  ot  the  Te-  inclined  that 

cond,  pet  tijiss  10  not  anp  ^furpatiou  as  to  tije  ?rj  or  ni  CoparceiUT,  'ln'!^,f^'l 
but  onip  to  tJje  20,    12  ip,  7.  uell,  u  per  Curtauu  fep,,,  and 

v/ouM  not 
permit  a  fpccia!  Verdid  upon  the  Motion  of  Serjeant  Maynard,   but  a  Cafe  was  made  of  it  for  the  Con- 

iideration  of  the  Jud<;cs      2  Vent.  39.  Pafch.  55  Car.  2.   C.  B,  Anon. >A' at  f  Com  p.  Lie    Svo.  214. 

cap.  1  3.  cites  Same  Ca'e.s.  And  Dr.  VVatfon  fay.s  the  Cafe  of  Vent,  feems  to  bj  upon  this  Rea'bn  th  it 
Partition,  a-^d  cit;s  m  ide  of  an  Advowlbn  doss  not  lever  the  Ri;;ht  a'ld  Inheritance  there.of,  but  is  only 
of  the  Polleflion.  and  cites  2  Co.  87.  dorbl't's  Cafe  ;  therefore  the  Inheritance  remainin;j  intirj,  ar» 
Ufurpation  a  Severance  in  the  Turn  of  one  Coparcener,  giins  t!ie  whole  Inheritance  by  VVro.ig  till 
iiVoidt:d,andconl'cqucntly  muft  put  all  the  Coparceners  out  of  PofleiTion. 

4-»  SoljaU  it  been,  tljO'  Partition  IjaB  liren  mane  to  prefent  by  Turn,  ^eef  M-  c) 

5.  If  'Tcnctnt  for  Life,  the  Reniai?ider  over  in  Fee  fiiff'ers  Ufurpation,  and 
the  Tenant  tor  Lite  dies,  he  in  Remainder  has  no  Remedy  tor  this 
Ufurpation.     Br.  Quare  Impedit,  pi.  162.  cites  16  E.  3. 

6.  An  Ad\ovvfon  defcended  to   3  Coparceners  Infants^  and  before  Pre-  And  tho'up- 
fcntmciit  by  any  uf  them,  a  Stranger  nfurps,    it  feemed  to   the   Court  that°"  ^  ^''"" 

Ufurp.ition  lliould  be //po;/ i^// i  lor  one  Right  defcended  to  them,    and' 
they  may  join  in  the  Prefentment.     21  E.  3.   31. 

E'delt  mav 
present,  yet  it  is  but  a  Privilege  which  tlie  Eldefl  Davighter  may  waive.     Trin   20  Car.  i.  C  B.  Rot. 
lS4y.  Hoy  v.  Bicvy. 


(M.  c)     Ufurpations.     Defeating  of  Ufurpations. 

I*  TiF  tIjC  DifTeifor  of  a  Manor  to  which  nU  ^01)011^011  IS?  appCnUant,  *  Br  Ouare 

1  prefents  to  tlje  anDotufon,  aiiB  Ijiss  Cierk  10  induced,  and  flftec  ^,^^^4;^  P'' 

Dilleiibe  re-enters,  at  tIjC  liett  iaMrianCe  IjC  UluP  ptefent ;  fOt  tf)l!3  DC-  s'c-^ 

ftm  tljeSSefnc  J-Joireflion  anQ  lifurpation,  *  3  3|)t 4»  s»  1 14  !1), 6, 16.  t b>-  p-cfen . 

tation,pl  ;i. 

cites  S  C. For  the  Advowfon  never  was  di(app€ndant  ;  and  by  the  Re-entry  of  the  Diflsicc  all 

Mefne  Eftates  art  defeated,  and  the  DiiTeifee  remitted.     Per  Fulth,  Which  was  neither  denied  by  the 

iuftices,  nor  affirm'd.     Br.  Prefentation,  pi.  32.  cites  14  H.  6.  24.- ■  It  was  laid  for  Law,  that  by  his 
egrefs  he  has  recontinued  the  Manor,  and  the  Advowfon  was  always  appendant,  and  lb  remained  after 
thcRegrefs;   h\it  contra  of  Jdicwfon  in  grofs.     Br.    Quarc  Iinpcdit,  pi.  107.  cites  14  H.  (5.  15. 

2,  But  if  he  re-enters  within  the  6  Months,  ijijS  PtCfClttCC  lljall  bCrC--  p    ,-  ^  ,• 

cci^cti,  aiiD  tl)c  otljer  ouffeD*  (It  recms  it  is  mtcntico  upon  Ec^  is'ia'Naturc 
coijcrp  in  SUiiauj  InipeHitO    14  p,  6, 24.  c^iictrc*  of  a  Re-c,:t,y 

and 


4o8 


Prcfcntation. 


a'-d  I'lurpation  by  one  tliat  hath  ijorr/ief  Right,  but  wliich   vvai  ulurj^i'd    unon,  fliull  woik  a  Kenmtcr. 
Cart.  44.  Coniwallia  V.  Hood. 

r\/«^/^i       3.  'But  otherwifc  it  (S    [Cf]  Advowfon  in  grofs.   *  3  lp«  4.  S,  i^l)* 
*  Br  Qu.ire  I.-npedit,  pi.  45.   cites  S.C. 

F.  N . B.  54.       ^»  5f  H  Feme  fufiers  an  Ufurpation  UpOIt  i)Cr  l^UllOlUfon,  and  after  flie 
(.S)  in  the      ta]^es  baron,  who  preients  tO  t!3C  IKXt  ^tliOlOanCe  in  R-ight  of  the  Feme 

h^ Marc"''  (auo  Clerk  inducted)  t\M  ^crt0  tljc  l^cftcirioii  in  tljc  fmz.    14 i% 

^'        6»24»   ClUarC. 

VV.itr  Comp       5^  "Situ  Patron  Of  lUt  aHUOlurCin  creates  a  Vicarage  OUt  Of  It  lalD' 

I„c.Svo.24o.  j-j,jjp^  jjj^j,  jjftcf  ^  Stranger  uiurps  upOlt  IjUU  in  the  Parfonaoe,  and  alter 

"P  ''■  that  in  the  Vicarage,  RJiD  tijCU  tl)^  Fatron  recovers  the  Ad\owlon  in 

V\  rit  of  Right,  pCt  UjtSS  Ojfllf  l^Ot  tlCfCnt  tfjC  llfUtpatiOn  ill  tlje  DlCat- 

age,  ticcftuic  tlje  aDicnrngc  10  not  nppcntJiint  to  tijc  au^joiifon,  ns  it 
13  mipUcti  tv  ti)t  cafe ;  for  tW  10  put  to  proiie  it.  n  €.  <.  su  i\ 
CEuruL  (jt  15  to  tic  ntnnitteQ  Ijerc,  tijat  tfje  i^atrcn  of ttie  parfoii' 
age  10  ISritron  of  tijc  iVicarngc.) 

WatrComp.  6,  Jf  an  SDiSOUlfOU  defcends  upon  2  Coparceners,  niltl  iluCC  au 
Inc  Svo.  259  x.'furpation  is  made  upon  the  one  who  dies  without  llfue,  bp  tUJJIcO  f)CC 

240.  cap.  13.  jj^igijtticfceutJS  to  tl3e  otljer  Coparceners,  tijis  fljall  ticfeax  tije  Hfur* 
but  adds  ■  pation ,  becaute  fl;e  cannot  Ija^e  action  of  [Parcel  of  tljc  aD\}oiofon  Dt^ 
Quxie.      ingfeifen  oftljcEemnant    17  C  3.  22. 

See  cL.c.)  7.  3if  3  Coparceners  atC  Of  HU  SlpVlOlUfCn,  niltJ  tljC  eldeft  prefents  in 
pl  3. her  Turn  without  Partition,  ailO  aftCT  a  Stranger  uiurps  upon  the  Turn 

mtf  Comp.  ^j^-^hg  2d,  anti  afteruiams  tlje  3d  prefents  in  her  Turn,  tijis  reuTits  tlje 
i"g  cap' T-  2ii  a^ain,  fo  tljat fljc  fljall  prefent  again  UJl)cn  it  cor.ico  to  ijer  rnxw ; 
ci'tes  s.  c.  '  for  tijcir  Kwljt  10  joint,  ano  fo  tljc  ufurpatiDu  bcmo;  anoiQcn  b))  one, 
it  10  fo  far  all.    12  fp.  7,  l^clU  u  [?cr  Curiam. 

If  an  Ad-  8»  "CljC  Law  tyOUlU  be  the  lame  the'  there  was  a  Partition,  ISCCaUfC 

vowfon  de-  fjj,,  j^artition  Uotlj  not  fe\)cr  tljc  JnOcritancc ;  for  tljci)  njali  )om  in 
r^'^^'llL  U^tit  Of  Uigljt,  auD  tije  Ic^artition  1,0  only  a0  to  tijC  poircffion*  €on= 

and  they  tta  12  tp.   7*    iwU  I. 

tion  to  piefent  by  Turns,  and  the  ^d  prefent.s  when  the  2d  ought,  for  that  Time  the  Prefirntmcnt  is 
gone,  but  when  it  comes  to  his  Turn  again  he  fliall  piefent.  4  Le.  222.  pl.  356.  cites  22  E.  4. 
Per  Brian. 

9.  yf  Manor  "with  Adviiiofon  appendant  defcends  to  an  Infant^  who  fuff'ers 

Ufurpattoii^  and  after  iiiakes  Feo-ffment  of  the  Manor  citui  pert insnt lis  ;  the 

Feoffee  has  no  Remedy  for  the  Ufurpation.     Er.  Qiiare  Impedit,  pl. 

162.  cites  16  E.  3. 

Jnd{;ment  10.  If  a  Recovery  in  Quare  Impedit  be  \\  ithin  lix  Months  againll 

in  Quare       ^.j^g  Incumbent,  he  is  removed  by  the  Judgment  ;  i'o  that  if  the  iJ^-. 

brout'ht        coverer  fijfers  the  Incumbent  by  Agreement  to  continue  Incumbent  during  his 

^-^ftehle  6      Life,  yet  his  Patronage  is  revelled  by  the  judgment.     Per  Coke,  Dode- 

.i/owf^'j,  fliall  ridge   and   Haugliton.     Roll.  R.    213,  Trin.  13  Jac.  B.  R.  Harris  v. 

Rii  in^     '^"^^*"- 

the^Patron.    Per  Coke  Ch.  J.  but  he  fays  he  will  not  call  it  a  Remitter.    Roll.  R.  214.  in  Cafe  of  Har- 

tis  V.  Auftin. 

1 1.  Pemberton  took  this  Difercnce,  where  the  King  has  a  good  Title,  no 
Recovery  againll  his  Clerk  Ihall  affe£t  the  King's  Titles  for  he  fhall  not 
be  prejudiced  by  a  Recovery,  to  which  he  is  no  Party.  If  the  King 
have  a  defea/ible  Title,  as  by  Ufurpation,  there  if  the  rightful  Pation  re- 
cover againll  the  King's  Incumbent,  the  King's  Title  fhall  be  bound, 
tho'  he  be  not  a  Party  ;  For  his  Title  having  no  other  Foundation  than  a 
Frefentation,  when  that  is  once  avoided  the  King's  Title  ialls  together 
■with  it.  But  tho'  the  King's  Title  be  only  by  Ufurpation,  yet  a  Re- 
covery againll  his  Clerk  by  a  Stranger,  that  has  nothing  to  do  with  it, 
fliail  not  prejudice  the  King ;  Covin  may  be  betwixt  them,  and  the  King 
be  triced.    And  North  Ch.  J.  faid.  He  v.  as  clearly  of  Opinion,  That  the 

King's 


Prefentation.  ^09 


King's  Title  by  Ufurpacion  iliould  be  avoided  by  a  Recovery  again  ft  his 
Clerk,  tho'  the  Reco\x-ror  were  a  marc  iStraiigcr.  Mod.  255,  256.  Trin. 
29  Car.  2.  C.  B.  the  King  v.  Thornborough  and  Studley. 


*(M.c.  2)     [Defeated  by]    Remitter.  fs'attcc. 

2) {,ec 

[i.j  9*  TJf  n  tC^tUl  ufurps  upon  inc,  and  at  the  next  A\oidance  I  iifurp  CM.  c)  pi.  i, 

->-  upon  him,  J  am  itnitttcti  to  niP  ancient  lAlijDtj  anu  tljc  '''•.!.•, 
Hfitrpatioii  upon  mc  Dcfcatcn*    17  e*  3. 37*  Jj.  i,  no  una- 

To  this  ii 
Roll,  ard  the  Pleas  go  on  9,  10  &c  but  to  prevent  Confufion,   I  have  added  a  Letter,  and  alter'd  the 
Number  of  the  Pleas,  yet  loas  as  the  old  Kumbers  appear  at  the  fame  Time. 

if.  So  if' the  King  ufurps  apon  me,  and  I  ulurp  upon  him  again,  and  prelcnt,  ard  my  Clerk  is  in  bv  fi 
Montis,  I  am  new  remitted  ;  x\nd  lb  it  was  ad^udg'd  in  Djcr'sTinie,  upon  Kithherbert's  Cafe  ;  bcc.iu'e 
hi.s  Cleik  was  legally  in  by  6  Months,  and  lb  a  Remitter,  which  fhall  bind  the  King.  Per  CokeCh.J, 
5  Bulft.  5S.  Trin.   j;  Jac.  in  the  Cafe  of  Harris  v   AulUn. 

[2.]   io»  Jf  Sn  Advowfon  ftCallign'd  to  2  Daun;l)ter0  Coparceners  *  VV.atr. 
in  Chancery,  fttiD  tIjC  Kldelt  alter  prcfents  to  the  *  ncKt  Avoidance,  tl)iS  S^""^?'  ^"'^• 

iliall  ftc  nt  \}tx  ancient  Enjljt,  ano  not  bp  iifurpation,  Dccaufe  tijc  firil  c'p  ^i'dtes 

JiJl'dCntmcnt  of  Uigljt  teiUiUTS  to  yet;  ants  tljlS  Ihall  avoid  the  AHign-  s  c.-ibut 
nienc  in  Chancery.      17  (£»  3,  30*  38*   $iD)UDg'Ov  the  Doctor 

fu;.'po!cs  the 
Prefentment  of  the  Eldcft  to  be  contrary  to  the  AlTigiiHieut. 

[3.]  1 1,  Jf  a  ^panufurps  upon  mC,and  his  Clerk  is  in  by  6  Months, 
and  alter  1  bring  a  Q^uare  Impcdit  againlt  Patron  and  Incumbent,  anl3 
tljCP  do  not  plead  Pknarty  by  6  Months,  faut  j|  tCCOllCr  lipOU  Non  ium 

iniormatus  pieaticD,  J  am  bu  tOis  rcmittco.    S©.  12  j.i»  15,  Ummx 
AuiHn  anD  Harm.  |3cr  CiittanL  ©rm.  13  3a.  05.  R.  €^anie  Caie, 

[4»]   12.  Sotl3C  Law  iUOlllD  llC  tijO'  3i  UUlS  a  Purchaior  Of  tljC  %^-  ^^ -■^- fo-rha- 

i30tt)fott,  ann  ncticr  prcfcntcD  before  tljc  lirurpation.   ^.  12  ^^a.  oa.  {7 '"  'j"^'  , 
Dttbitatiir.    ^i)  [Eeport^.J  Cr.  13  Ja.  15.  E.  ^amcCai^r.      l]l"avy 

Preje7!tatUn 
had  by  him,  aiiother  iifiirp  upon  A.  and  prefents,  and  A.  bring<;  a  Qiiare  Impedit  after  the  6  Months,  and 
a  Plea  of  Ken  fiwi  Ititormaius  is  enter'd  for  the  Incumbent,  the  Advowfbn  is  hereby  reverted  ;  for  here 
was  but  a  Remeaikfs  Right,  and  if  you  will  not  take  Advantage  of  it,  A.  fliall  hcrebv  have  his  Right 
again.  A.  had  a  Right,  and  having  a  Judgment  to  recover  that  to  which  he  ha  i  a  Right,  his  Riglit 
fhall  thereby  be  recovered.  Per  Coke  Ch.  J.  3  Bui  ft.  46.  Trin.  13  Jac,  B.  R.  in  the  Cafe  of  Harris 
V.  Auftin. 

[5.1  13.  !Jf  3^  [am]  fcifcti  of  an  an^oiufon,  anti  aftcu  tlic  Cljurclj  ;^heKingv 

^0156  tljC  Kmg  prdcnts  by  Ufurpation,  anO  6  Months  pals,  ant!  afrCt  bV  Ufurpa- 
3;  bring  a  Q^uare  impedit  againll  the  Incumbent  Of  tljC  l^inij,  who  does  jjy,,^  the  Pa. 
r.ot  take  xidvaatage  ot  the  Plenarty,    bUt  UpOn  N  on  Ium  Iniormatus  tron  by  this 

plcaneti  J  tccoljcr,  %  fljall  tijercbp  be  remitteo.   a).  12.  ja.  03.  bc=  .^^^^overy 
rujccn  yitijiin  auu  Ha-ms.   m%  13  Ja.  03.  E.  ^3aiuc  CaO:.  To  iTi" ancient 

Right,  and  Judgment  accordingly.     Brownl   165.  Pafch.  12  Jac.  S.C.  by  Name  of  Auftin  v.  the  Biflrou 
pf  London    Seal  • 3  Bulll.  56.  S.  C.   by  Name  ot  Harris  v.  Aulleii. Roll.  R.  210.  S.C. 

[6.]  14.  But  otljertoife  it  tooitin  be,  if  J  am  a  Purchafor  of  tljc 
^tuiouifon,  ans  tl}c  Uuuc  ufurps  before  anv  |i)refentment  bp  me,  anD 
.6  ^ontijs  pafe  before  tlje  Ciuarc  Jmpetiic  brouiTbt  aiTaiiul  tljc  'in-  ^uia  ^ 
jcumljent^  ant?  attec  31  recoiicr  in  a  Ciiiare  JmpcBtt  bro'uuOt  after  tlje  s.  c.  by' 
6  seontlj.fi  pi]rfr/ii  agama  tijc  Sincumbent  upon  Ji^on  fiim  Jnformatu0  N'-^^  of 
^plcatien,  imtljour  tafemn;  ativiantagc of  tije  pienartp,  %  fijail  not  uc  ^.^T  ''■ 
remittcB  -,  UicX'Sz  hv  tljc  iifurpation  anti  6  cpontijs  pafs't?,  J  italic  roiir  mc?. 
ftiit  a  BxmcCiitf-j  Hin;l)t,  luitljout  anp  Action  to  recoiici  it,  anti  tijr  s.  c. 
t-vinn;  ijj  iiot  l^artp  to  tfje  action.   9d,  1 2  3:a.  15.  tctiucen  yh'^i"  ano 
Harris,   '(i^r.  13  03..l\.  "^amc  Caft', 


4  I  o  Prefcntation. 


[•7.]  15*  If  A.  feifed  in  JFCC  of  6  Acres,  to  which  nil  dUliatOfOtt  ijj 
appCllOant,  niCjS  fClfCO,  anU  tljiS  defcends  to  B.  aun  a  ter  a.  is  attainted 
01  Troalon  by  Act  ol  Parliament,  bp  iDljIClj  tljC  King  leifcs  the  6  Acres 

nnti  i)e  fo  fcaco,  t|}e  Cljurtlj  130100,  nnn  j.  s.  uiurps  upon  the  Kin.^  ■ 

anO  after  tt)C  Act  ot   Parliament  is  repealed,  and  B  reltored,  \i])  tuhifh 

Ijc  cntere  into  tl)c  6  Cicrc0,  anQ  after  tfjeCtjiirclj  hoidsj  i  tljeaiin  mti 
pation  f  ontnuie0  not  Dcteaten  tip  tijc  Repeal  of  toe  M  of  I3nrlianient 
10  tijat  15.  nor  \m  Jfeoffre  of  tije  6  iacrcss  cannot  mnmtain  a  Cluare 
IJnipcoit  ngania  ii,  ^.  uiijo  ufurpcti  uetorc,  if  i)c  Hifturos  ti)ein.   r> 
2S  ip.  8.  24  IJ3    aoiuogo,  as  It  rccni0,  upon  tfjts  Hcafon* 

[aj    16.  Uf  A.  uiurps  upon  B.  a  Purchalor  Of  aU  l^DlJOlUfOn  in  ifCC 
anO  toe  Clerk  of  3.  10  in  by  6  Months,  anti  alter  the  Church  voids* 
and  B.  prelents  C.  and  he  tljeteUpon  10  inftltlltea  ailQ  induced  ,  but  A* 
brings  (^uare  liiipedit  ag.ainlt  B.  and  C.  '2i;{jt0  10  110  Eemittet  tO  "B.  the 

mm  being  bromjljt  mmm  tlje  6  99ontl)Si  far  tmruiix  tiji0  mim 
tijat  tijc  Cizvk  10  to  be  rcnio\3eti  bp  tijc  !©nt,  tljis  10  not  ani)  Hcniit^ 
tcr»  0.  14  Car*  06,  R.  bemzm  i^iarpcr  anb  ^lerrfiak.  ^muiDira 
\^n  Curiam,  in  iBrit  of  Crror  upon  a  JuDsmcntin  a  Cluarc  to 
pebit  m  X^nnk  iintratur.  '^' 

Roll  R  114.  9.  li  Tenant  in  Tail  be  difturbed,  and  where  he  ought  to  have  a  Quare 
pi-r  C-oke  I'"peciit:  he7;r/«^j  a  Writ  De  Droit  D'Advowlon,  and  in  this  recover^  he 
Ch.  I  in  s  Jl'^Jl  be  in  by  Force  of  the  Tail,  and  not  in  Fee-Simple,  notw'ith- 
C.  —  iiinding  the  Gift  of  the  Aftion  be  foi    tor  where  a  Judgment  and  my 

.  I^  ^^"f  *  K\^\\z  do  meet  together,  I  ihall  be  in  in  my  Right.  Pe/Coke  Ch  ]  2 
Ma'no,-  ut:  ^^\f-  46'  47-  in  Che  Cafe  of  Harris  v.  AulHn.    cites  4  E.  3.  F.  zp."' by 

u Inch  an         ^\  llby. 

Advowfon  is 

appendant,  dircontinue  the  ^Tanol•  in  Fee  with  the  Advowflm,  and  after  the  Ditontinuor  granteth  the 

Advowfon  unto  another  in  Fee,  and  afterwards docli  re-infeoft' the  Tenant  in  Tail  of  the  Alanor    who 

dieth  leifcd  (.f  the  Manor  ;  his  Heir  fhall  prelent  unto  the  Advowfon  when  it  fhall  happen  void  •  And  if 

he  be  dillurbed,  he  (hall  have  a  Qiiare  Impedit,   becaufe  he  is  remitted  unto  the  Mai;oi,  and  lia'th  not 

Remedy  to  come  at  the  Advowfon.     F.  N.B  55.  (^B)  cites  29  H.  6.  Quare  Impedit  jy. 

S.  C.  cited  1  o.  Where  the  King  recited^  That  whereas  he  had  recovered  an  Advow- 

Qi  T  as  ^"'^  ^^y  Defaults  ^<:^arclni^e<\\x.  again/}  a  Stranger,  which  Advowfon 
mentioned  '^'«  lawjtilly  appropriated  to  the  Abbot  longtime  before  this  Recovery,  and  alter 
by  Huiley  ;  ■  the  Kmg,  by  his  Letters  Patents  reciting  the  Recovery,  ^;w/rj  the  Ad- 
butCuke  vowlon  to  the  Abbot  and  his  Si/ccejors,  it  was  adjudg'd  that  the  Abbot 
thr'Book  '  '^°"^^  """^  ^^  '"  ^y  ^^^  ^'"g'  b^^  by  his  ancient  Right  in  his  Remitter 
but  cannot  accorduig  to  their  Appropriation,  and  not  by  the  lalt  Grant  ^  becaufe  the 
find  the  Cafe  Letters  Patents  recited,  that  they  had  other  Right  belbre  the  Recovery 
^•^^ere.^^Bulf  Per  Hulfey  Ch.  J.  zl.  E.  4.  49.  a.  cites  it  as  adjudged  32  £.  3. 

Cafe  of  Harris  and  Auftin. 

•R0II.R.214.      II.  If  the  King  ufiirps  upon  J.  S.  and  afterwards  by  his  Letters  Pa- 

P»r  Coke       d"^'  -^T^n  ^^"  11"^"  '''"'  ^<^'""'  '^^''  J  "^'"'''''  ^'"S"^'  '''''^''^S  k)'^  ancient 
Ch  T  inS,C.  i:'5?7'  ^^^'^  feveft  this  in  him,  and  he  Ihall  be  in  again  in  his  ancient 
Right.  As  where  he  ufurped  by  Prefentation  to  the  Advowfon  of  a  Houfe 
ol  Religion,  and  atterwards,  reciting  the  ancient  Right  of  the  Abbot 
grants  this  Advowfon  again  to  him  and  to  his  Succeifors  for  ever  i  the 
Abbot,  by  this  grant,  is  in  again  in  his  ancient  Right.     Per  Coke   Ch  T 
3  Bulft.  46.  in  the  Cafe  of  Harris  v.  Auftin.  cite^^it  as  adjud^-'d'   2  H 
7.  f.  17.  J     s  . 

Sinn'tr;  rr-l^-  ^^^  ^"■'J'^"^  ^"^  Wifi  prefcHt  to  ao  AdvowfoD  in  the  Right  of  thg 
ci^esS  C  ''■  ^i'-^"'  "^I'J^^  ''  appendant  unto  a  Manor  of  the  Wife's,  and  afterwards  the 
but  Brooke  ti'i^i^and  aliens  one  Acre,  Parcel  ot  the  Manor,  with  the  Advowfon  in  Fee 
makes  a  to  a  Stranger,  and  dies,  and  the  Stranger  prefents  and  aliens  the  Acre  to 
Qusrc.  another  m  Fee,  faving  the  Advowfon  to  himfelf,  and  then  the  Church  voids 
the  Wile  Ihallprelent ;  and  if  Ihe  be  difturbed,  Ihe  Ihall  have  an  Alfife  of 

Darrein 


Prefcntation.  4.  i 


riui-y  alien, 
1  Iiavc 


Darrein  Prcfcntiiient,  becuule  the  Advowfon  was  fc\cred  trom  the  Acre; 
but  it  the  Advowfon  were  appendant  to  the  Acre,  then  the  VVile  ought 
to  recover  the  Acre  letbre  fhe  prefent  to  the  Advowfon.  F.  N.  B.  32.  (K) 

13.  If  a  Man  tra\erfe  an  Ojfice  jomidof  a  Manor,  unto  which  an  Ai-  *^'.°'' '"  '''^t 
wwfbn  IS  appendant,  and  upon   the  -Ti-wverfe  *  the  King  leafes  the  Manor  £^-'''-',''"= 
unto  him  who  tendered  the  Traverle,  without  mentioning  the  Ad\ow- amounts  to  a 
fon,  and   alterwards   the  Church  \  oids,  he  who  tendered  the  Traverfe  Kcidtunon  ; 
fhall  have  the  Prefentment,  it'  the  Traverfe  be  found  lor  him.     F.  N  B.  ^>'t  '^  i't-" 
34.  (P)  Km<;(ei'c.a 

and  leaffs  the  Priovy  to  Farm  during  the  War,  without  meiitioni'ig  the  Advowfon,  the  King  fl.al 
it.     F.  N.  B.  54  {?]  in  the  Notes  there,  (f )  cites  29  E.  5.   iS.  (or  ySj 

14.  NV'here  an  Infant  has   an  Jdvo-jcfon  hy\  Defcent,  and  the  Church  S-  C.  cited 
voids,  and  he,  who  hath  Title  Paramount,  tifiirps  and  prefents  unto  the  tame  l^:  '3'- 
Church,  and  the  6  Months  do  pals ;  he  is  rcimltcd  by  this  I'furpation,  3]^'  ■^°'^'* 
and  the  Intantout  of  Poiieliion,  and  v\  ithout  Remedy  by  that  Ulurpation.  cWolvVadc 

F.  N.  B.    35.    (M)  v>rcfthall. 

15.  Two  feveral  Ptirchafors  are  of  the  Rever/ion  in  Fee  of  an  Advowfon 
/iftcr  a  grant  of  the  next  ^-ivoidance.  An  Avoidance  happens,  and  ly  Co»Je~ 
deracy  one  of  the  Ptirchafors  prefents  in  the  T'urn  of  the  Grantee  of  the  next 
Avoidance;  but  upon  a  Biil  by  the  other Purchaicr,'twas  decreed,  that  no 
Benefit  fho"uld  he  had  b)- this  Ufurpation,  fo  as  to  dcieat  the  Plaintilt'sTicJe, 
nor  ihould  it  be  given  in  Evidence  againlt  him  at  a  Trial  at  Law,  which 
was  then  order'd.    'N.  Ch.  R..  4.  Pafch.    3  Car.   Markhall  v.  Hide. 


*  A  Qu^ve 

(N.  c)  *  ^nre  ImpedH.     Of  ^hat  Thing  it  Iks.         ^tS^^J} 
Ciuarc  I^mpetii't  lies  of  a  Donative,  ant!  tfjc  HDrit  fljall  be '""''\^;' 


A 


Q^uod  peniiiVtac  ipfum  prclentare  ad  Eccleliam  %Z,   lUlti  BCClaCC  ""olZln^Pre 

tlje  Special i^attcr  m l)i0  Dctlaranoiu  Co*  litt.  344-  f>,imem. 

The  Wtk 
of  Right  of  Advowfon  complains  of  the  Deforcement  cf  the  whole  Advowfon  ;  The  Quare  Impeditand 

T>Drrew  Prefent>?ie!:t  complain  only  of  a  Chattel,  vi?,.  of  the  prefent  Avoidance,    [cnk  iq.  pi.  29.  . 

On  a  Writ  ot  Error  upon  a  judgment  in  a  (^lare  Impedit  brought  out  of  Ireland,  Exce^nionwas  taken 
amongft  others.  That  the  Writ  of  Ei  ror  was  Quia  cum  &c.  per  breve  noff-runi  de  (^rarc  Impedit; 
Whereas  the  Words  of  the  Writ  are,  ^wd  fermittat  ipfum  p-tifetitare  Qpc.  And  there  is  tio  fiicb  Writ  as 
^are  Impedit ;  But  it  was  anfwcred,  That  Bradton  246,  247  diftinguifhcs  between  the  W'  rits  of  Quod 
Permittat  3r.d(^uare  Impedit,  That  Ouod  permittat  was  cither  an  old  anriiiuuted  Writ,  or  taken  away 
by  forae  old  St,.'tvite  row  loll,  and  cited  the  Stnrute  1  ;  E.  i.  cap.  5.  and  JMaynard's  E.  2.  ful.  900  Mich. 
10.  E  2  to  prove  tliat  there  never  was  fjch  a  Writ  as  f^uod  permittat ;  That  in  all  Judicial  Records  it 
is  called  a  Quare  Imj'edit,  and  fo  in  Writs  of  Enrjuiry,  and  fo  in  Writs  to  the  Biiliop  for  admitting 
Clerks,  and  cited  fcveral  other  Books.  And  per  Cur.  as  to  the  Calling  the  Writ  (>uare  Impedit  inffead  of 
Quod  pcrrr.ittat,  the  F'aft  is.  That  there  was  formerly  a  Writ  of  f^iiiare  Impedit,  now  out  of  Ufe  ; 
And  the  Writ  Q\iod  permittat  is  now  enoncoufly  called  by  the  N.tme  of  Quare  Impedit ;  This  Error 
has  prevailed  in  judicial  VN'rirs  and  Acls  of  Parliament,  but  never  yet  in  VN'rits  of  Error;  However, 
it  being  become  now  a  leg;jl  Name,  the  Writ  of  Error  ought  not  to  be  diliillowed  for  ufing  of  it,' 
10  Mod.  308.  &c.  Pafch.  1  Geo.  B.  R.  the  King  v.  tlie  Bifliop  of  Meath. 


13  £.  I.  cap.  5.  Se£V.  4.  Enafts,  That  *  from  henceforth  t  ll'rits pail  *  It  appear- 
anted  for   i  Chapels,    Prebends,   II  Vicarages,    Hofpitals,  Abbics,  "^ '^^'■<^' 


2. 

be  grant. .r  J..    .,  .^..-t-^-., ,  o^.,    ^ ,  . '' and  bv  6  E 

Priories,  and  other  Plonfes  ivhich  be  cj  the  Jdvonfons  of  other  Men  that ,     ^^i-n  b»- 
have  not  been  nfed  to  he  granted  before.  Cre  this  .Xcl 

Writs  did 


V*  rus  Qin 
not  lie  de  Capellis  Preberdis  S:c.  and  yet  it  is  adjudged  in  14  H.  5  which  was  long  before  this   Statute 
that  a  Quare  Impedit  did  lie  of  a  Chapel  ;  and  it  was   refolved  in  Parliament,  Hill.  ly  H.  5.  Ouod  nulla 
AfTifa  ultimje  Prsec-ntationis  capiatur  de  Ecclcfiis  Prebendatus,  nee  de  Prebendis;  but  now  this  ACt  hath 
made  it  clear,  ard  tlic  Wr'n  fliall  be  Ad  Capellam.  &  2  Inlf.  5(59,  ■:^6i^. 

t  That  is,  Writs  <f  Advowlon,  C^uare  Impedit,  and  Affile  of  Darrein  Prefentment,  which  in   this 
Ait  had  been  named  before  2  Infl  ■:^6i,. 

:j:  A  Quare  Impeoit  lay  of  a  Chapel  at  Common  Law.  F.  N.  R  95. (C)  in  the  Notes  there  (e)  cites 

14  H.  5.  Quare  Impedit.  1S5. hv\&  fo  it  did  of  a  Prebend.  F.  N.  B.  55.  (c)  in  the  Notes  there  (c) 

cites  15  R.  2.  firicf  645 

As 


^12  Prcfentation. 


As  to  the  Word  C'liapcl)  Wlien  the  Oiicftion  wa-,.  Whether  it  were  Ecclcfi.!,  aut  (Japtlla  Pcrtii,en& 
ad  MatriccMi  Ecclefuim,  the  IlTuc  was,  Whether  it  had  Haptijfermm  &■  Sepulliir.im  ;  For  if  It  Jiad  the 
Adminftration  of" Sacrainents  and  J^epulturc,  it  was  in  Law  adjudged  a  Church,  Trin.  20  £.  i.  in  Hanco 
Kot.  17-.  in  Quare  Impcdit  Kic'  de&»initl)'s  Cafe.  Midi,  21.  E.  i.  in  Banco.  Rot.  i  Henf  ^r»Or  fle 
(fltiS  Cafe.  Hill.  S  E  i  in  Banco,  EogiT  DC  ffiliJOD,  ailD  (LOUllf  Df  iBoifi;t'.>  Ca(L'.  Hill  S  £  ;.  co- 
ram Kege  Covnuh.  pro  Capella  Santti  Bci  ionc.  A  Capella  vetiit  CajicUania  ;  Kot  Cart.  26.  Nov.  An.  28 
H  ;.  in  Cart' Kact' "VS'ill.  Oxon.Epifcopo  &Capellan' ut  patet  Mich  31  E.  1.  Coram  Rej^e  Gloc",  Ca- 
pcllania  lancti  Olwaldi  Pricratus,  Santti  Ofwaldi  de  Gloc' quae  ell  de  Libera  Capeliania  Noftra.  a 
Inll.  505. 

It"  a  P.iii-oi  of  a  Ch.jpcl  prrfrnf  unto  it  by  the  N,rme  of  /r  Church,  and  the  Clerk  be  inftituted  and  induft- 
cd  thereunto  Sec.  it  hath  loll  the  Name  of  a  Chapel    2  Inll  564. 

II  Ouare  Impedit  was  brought  ly  a  I'rihauiary  of  an  Avoidance  of  a  Vicarare^  which  was  (ippcvdant  to 

lis  PYebtvA,  Ouod  nota.  Br  Quare  Impedit.  pi.  95.  cites  24  E.  5.  26 Br.Prelentation.pl.  26.  cites 

24  E.3.  26.- S.P.Br.  Quare  Iinpedit.  pi.  156.  cites F.N.B.fol.  52,  33. 

It  was  oh-         3.  Quarc  Impedit  lies  of  an  ArchdeacouYy.  Br,  Quare  Impedic.  pi.  loo. 
jefted,  That  cites  24  E.  3.  42. 
Quare  Impe-  ^ 

dit  does  not  lie  of  an  Archdeaconry-fhip ;  For  it  is  not  local,  nor  .any  Indenture  made  thereof,  but  it  i.? 
only  a  Matter  of  Function,  but  it  was  not  allowed  .  For  an  Archde.icon  hath  Locum  in  Choro;  And  by 
the  Statute  a  Quare  Impedit  lies  of  a  Cliapel,  and  by  Equity  thereof,  of  a  Prebend.  Le.  205.  Trin,  31. 
Eli?..  C.  B.  Smallwood  v.  the  iSiihop  of  Lichfield  Ow.99.  S.  C.  by  Kame  of  Sale  v.  Bifliop  of  Lich- 
field  The  King  fliall  have  a  Quare  Impedit  of  the  SKi-Deiicown  ofl'crk,  which  is  voided  when 

the  Temporalties  of  the  Archbifhoprick  were  in  the  King's  Hands.  F.N.  B.  34.  (G) 

*S  P.  where      ^.  A  Quare  Impedit  lies  of  a  *  Cbanterjof  Saint  T.  in  O.  Br.  Quare 

tlicrc  was  a    in^pedic.  pi.  5.  cites  9  H.  6.  16. 

Compolition,        r  c      j  ■^  > 

!iat  then  the  Ordinary  fliould  prefenr.  Br.  Quare 

vhicii  is  Donative  bv  Letters  Patents  F.  N.  B.  ;;. 

in  what  Church  or  C^hapel  the  lotr.c  is.  F.  I^.B, 

ib.  Entr.  499. 

S.  P.  F.  N.  j_  A  Man  may  have  Writ  of  Right  of  Advowfon  de  Advocatione 
^^^' ir^~ A/ci/ietatis  Ecc/c//\e,  but  not  Quare  Impedit ;  For  this  is  Quod  ipfum 
haveC)uare  prelentare  ad  EccJeliam,  fo  that  this  is  all  tor  the  Prefentation  only.  Br, 
Impedit  pre-  Quare  Impedit.  pi.  10.  cites  33  H.  6.  11. 

fentare  ad 

Meilietatem  Ecclefias,  but  when  there  are  2  feieral  Patnais,  and  2  feveral  Incumheyits  of  the  Church 
within  one  and  the  fame  Vill,  fo  that  theone  Patron  ha.s  a  diftinctand  feparate  Advowfon  of  one  half  of 
the  (Jhurch,and  his  Incumbent  hasadiflinitt  and  fepar.ate  Half  of  the  Tithes,  and  other  Ecclefiaftical  Pro- 
fits within  the  fanxVill ;  So  of  the  other  Patrons,  Mutatis  Mutandis,  and  in  this  Cafe  theAdvowfbnand  the 
Church  are  fevered  in  Rigiu  and  in  Polleflion ;  But  when  there  is  only  one  Incumbent,  tho'  the  Ad- 
Vow  ("on  is  divided  and  fevered  in  feveral  Hands,  yet  there  never  fhall  be  a  Quare  Impedit  Prefentare  ad 
Medietatem  feu  teiti.-iw  Partem  Eccleft£  &c.  and  the  Reafon  of  this  Diverfity  is  manifefl ;  For  every 
Qiiare  Impedit  is  in  the  Polleifion,  and  refpecls  the  Church  which  belongs  to  the  Incumbent.  Refolved. 
loReti.  135  b.  Trip.  10  Jac.  C  B.  Smith'sCafe. 

F.  N.  B  39  (G)  fays,  ft  fecms  (within  the  Writ  [there]  abbve-mcntioned,  that)  a  Man  Hiallhavea 
Quare  Impedit  quod  permittac  ipfum  prscfentare  ad  tertiam  Partem  Ecciefix  ;  and  that  it  feemeth  to 
fland  with  Reafon  ;  For  aConfolidation  may  ht  made  of  3  Advowfons,  and  every  Patron  to  prefent  by 
Turn,  and  then  every  one  hath  a  Right  to  a  third  Part. 

6,  Quare  Impedit  lies  of  n  Priory,  or  of  an  Jbbcy.  F.  N.B.  33.  (F) 

7.  A  Man  ihall  have  a  Qiiare  Impedit  of  an  Hermitage ;  And  a  Writ  to 
put  him  intocorporal  Poffelfion.    F.  N.B.  34.  (E) 

Quire  8.  It  will  lielbr  aDillurbance  to  prefent  to  a  Chnrdj  in  Wales  ;  ft  will 

where  this  Jje  alfo  for  a  Dilturbance  to  prefent  to  a  Church  in  Anttent  Deniefm,  tho'  ic 
I  do  not  ob'*  '-■™'"^^'""s  the  very  Polfelfions  in  Antient  Demefne ;  For  the  Common  Law, 
ferve,  that  being  as  antient  as  thofe  Privileges  which  Men  have  in  their  Lands  held 
it  is  war-  in  antient  Demefne,  will  not  fuller  that  there  Ihould  be  a  Failure  of 
ranted  by  Julfice,  under  Pretence  of  anv  Manor  of  Privilege  whatever.  3  Neli  a.  35, 
BoSs  "^  "^^  P^-  3-  cites  Hob.  48.  Co.x  v.  Barnsby.  5  Rep.  Alden's  Cafe,  S.  P. 

cited,  no- 
thing being  there  faid  of  a  Church  in   Antient  Demefne. 

(O.  cV 


Prcfcntation  41':^ 


■  (O.  c)  Uljofiall  krje  Quare  impcdic 

r.  nn  p  €  Grantee  of  a  next  Avoidance  njilll  \)i\\)C  a  fflUare   JUipC^  '"='■  f^"* 

1   tilt  nijaiud  tlje  |3atron  U)!)ci  ijrantco  it.  s9  rx  6.  equate  lav-  ^-'i"  i""- 
pcDit-  95.  l^tt  Curiam,  iinn  Taio  to  be  oftcntiuicsi  riOjutiijcD*  s"p  ajn'kr 

ted.  And 

Br.  N.  C.  4  E.  6.  pi.  410.  by  Name  of  Ogle  v.  Hirrifon A.grnvts  that  whenroevei-  the  Chui-ch 

becomes  voul,  t!;!t  B.  and  his  Heirs  (hall  rw/ihiate  a  Clerk  to  the  Grantor  and  his  Heirs,  .?«,/  tku  he  ami 
his  /Avrj  ii'Jlprefei't  himoier  to  the  Ordinary,  and  the  beft  Opinion  was.  That  every  ofthemfliall  have 
Qiiare  Impedit,  if  B.  pre^nts  to  the  Ordinary,  A.  fli.ill  have  (Juare  Im;cdit,  &econtra,  And  tlio' the 
one  has  a  VS'iit  tothe  Bifliop,  thisfliall  notoull  the  other  of  the  Pollellion  Mo.  49.  pi.  147.  Pafch. 
5  Eli/..  Anon. 

If  the  next  Jvoiilance  he  granted  to  Z,  and  one,  before  the  Church  avoid  ,  Rrknfci  to  tlic  other,  the  Re- 
leiTee  may  have  Qiiarc  Impedit  in  his  Name  alone.  Adjudged  and  affir.ned  in  Error.  Mo.  46;.  pi.  664. 
Trin.  59  £li/,.  Lewis  V.  Beiuiet. 

2.  Be:ore  tIjC  ^tiUUtC  Of  27  ^^  &.  Of  HfCS,  if  Ceftv  que  Ufe  of  a  Ma-  Q.'".e  Im- 

nor,  to  which  ait  ao^joujfoii  iD^s  appciinaitt,  prcfciits  to  tijc  Cljurclj  ?"^"^^  'l"^ 

UJljCn  it  bCCOniCSS  llOitI,  ana  tljl-j  by  Sutierance  of  the  Feofil-e,  pct  If  {)C  „,"%'r^tl 

be  riiftuibcn,  lie  cannot  maintain  a  €iuarc  31mpet!it  i  jfor  ijc  ijas  not  hecwjej.k. 
any  eilatc  at  VMU  17  fp.  7.  i\t\l  42.  b,  ^^|">  «^'^  ^•^- 

laii'ii,  and  the  Cliurch  voided,  and  the  Kin";  prefentcd  &c.  The  Deferid/tnl  faid  that  before  the  Oul/aii-ry 
the  P.xtrcn  hiie.ffcd  ■:,  to  his  [Jiir.  Fee ,  and  tlic  Church  voiced  after  the  Outl.m  ry,  and  he  preiented  at 
the  'V\'lllof  the  Feoffees,  and  therefore  V\'rit  award  d  to  the  Bifhopforthe  Ki;-^^;  And  To  it  Teems  tliat 
upon  Voidjnce  (Jcfty  que  \J\'c  ha,>  aCh.ittel,  and  therefore  it  fhall  be  forfeited  lay  Outlawry  ( 'uJre  if 
he  had  preiented  Nomaie  Fcotiati.  Br.  Prelcntation.  pi  to.  cites  5  H.  5.  3.  '    '^ 

3.  Quare  Impedit  lies  for  the  Bipop,  who  is  difturbed,  to  have  Pre-  Br  Prefe-i- 
fenuiient  to  the  Prebend  ^  So  lor  the  Kr,ig^  thcTcmpraltus   Iciiig  in  his  '-.'""npl  ^5. 
Huiids,  Er.  Quare  ln>pedit.  pi.  04.  cites  24  E.  3.26.  '^^'^l^,^^ 

That  in 
fume  Places  tiie  Dean  fhall  prefent  to  fomc  Prebends. 

4.  Qijare  Impedit  by  the  King  of  the  Vicarage  oi '&.  and  found  againll 
him,  and  the  Defendant  prayed  vVrit  to  the  Bilhop  ;  and  Thorp  J.  took 
Time  to  advile  ^  For  he  doubted  'xhcther  a  Layman  could  be  Patron  of  a 
Vicarage^  but  u  Parfon  or  Parfon  imparlonee.  Br.  Quare  Impedit    pi.  105. 

39  -E-  3-  33- 

5.  Dt(]eifee  of  a  Alanor^  to   which   an  Advowfon    is  appendant  and 

voids,  may  ha\e  this  AV'rit.  F.  N.  B.  33  (Q^) 

6.  -The  Ijji'.e  m  'Tail  ihall  not  ha\e  Formedon  of  an  Ad\owf  m  in  Grnfs, 
aliened  by  his  Anceltor,  but  Quare  Impedit  at  the  next  Avoidance  in  his 
Turn.  Br.  Quare  Impedit.  pi.  60.  cites  14  H.  4.  33. 

7.  Where   a  Prior  ivas  Parfon  luifiarfo-ticc^  and  J.  N.  prefentcd  his  Clerk  ^y*"''' 'i 
tu  the  fame  Church,    who   ^vas  Admitted,  hijlitnted^  and  Indnticd,    by  f''".-" 5 '," 
this  the  Prior  is  not  out  01  roUenioni   tot  he  cannot  have  nrit  of  li'ght,  to pre/ntt,  it 
nor  G)uare  Impedit  ;  For  he  is  in  Poilelfion,  andfo  \\t  jhall  have  no  Adion^  fliall  bead- 
batTrefpafs^  or  Spoliation  in  the  Spiritual  Court.)  becaufe  the  Church   is  ad-  'Mz^id  void ; 
judged  always  full  of  him.  Per  Prifot.  Br.  Prdentation  pi.  36    cites  39  H.  ^'^;  ^T^"" 

"•    20.  iiDinot  JileaJ 

Plertitrty,  but 
it  is  ahvavs  full  as  to  him  who  no  Ei|;htlia<,  and  the  AdmllTion,  Infliturion,  and  Induftion  fuppol'ed  is 
not  to  the  Purpole,  it  he  who  preli-nts  has  not  Title  ;  But  the  Prior  continues  Parfon,  and  the  Opinion 
of  the  Court  was,  that  the  Church  is  always  fullotthe  Prior,  and  that  thcother  who  was  Admittid,  Infti- 

tuted  and  Inducted,  w.is  not  Parfon.  Ibid. Br.  Qiiare  Impedit  pi.  114.  citesS.  C. Ibid,  pi-  lU.  ■ 

cites  50  H.  6  1 1.  S.C. 

8.  7  H.  8.  4.  Ena£\s  th.tt  Recovcrers  of  Mancrs  i^c.  and  /dvoiffons, 
their  Heirs  and  J[Jigns^  Jkall  have  Jfjiare  hnpeditjcr  an  Advcivfon,  it  tt port 
a  Voidance  a;n'  Dijiitrbance  be  made  by  a  Stranger^  as  the  keiovcrees  might 
have  bad ^  alint  they  zverc  never  fei/'ed  tbcrcf  by  Pref'entat:vn. 

5-M  9.  U 


41 


Frefentation. 


9.  If  the  PaTroH  fells  the  Fee  of  the  Advovvfon  after  the  Avoidance^  nei- 
ther he  nor  his  Ve  ndee  CM\  have  a  Quure  fmpedit,  becaufe  the  Avoid- 
ance makes  it  a  Chofe  en  Aclion  ;  (o  that  it  does  not  pafs  to  the  Gran- 
tee, and  the  Grantor  has  deltroy'd  his  Atlion  by  his  Conveyance,  and  lo 
none  can  have  it.  Cro.  E.  811.  Hill.  43  Eliz.  C.  B.  Leak  v.  Bilhop  of 
Coventry  and  Babington. 

And  244.  10.  QKiare  Impedit  lies /or  £.\w///o/-^.     4  Le.  15.  pi.  53.  Mich.   32  & 

hy  Name  of  33  ^^'''^-  Small  wood  V.  The  Bilhop  of  Coventry  and  Litchfield. 

S.ilc  V.  the  Bifhop  of  Coventry  and  Mavfh. — Cro.  E.  207.  S.  C 4  Le.   205.  S.  C. Ovfr.  99. 

S  C.  by  Name  of  Sale  V.  tlie  Bifliop  of  Litchfield. 

It  was  (aid  tlat  if  Husband  has  an  Advoufoii  in  Rif^ht  of  the  Wife,  and  the  Church  becomes  void 

and  the  Hu.sband  dies,   the   Executors  fhall  have  the  Prefentation  ;  and  that  there  are  manv  Books  in 

that  Point ;   and  Anderfon  faid  he  knew  that  well,  but  that  he  doubted  of  the  Law  in  that  C.tlc'  Goldab. 

;;.  pi.  10.  in  Specot'sCafe. See  (P.  c)  pi.  i. 

11.  A.  prefents  B.  and  before  Inftitution  revokes  thdit^  and prefents  C. 
Qiiare  Impedit  lies  for  C.  Agreed  by  all.  Latch.  24S.  Hill.  22  Jac.  ia 
Cale  of  Evans  v.  Afcough. 

12.  He  that  has  the  Nomination  is  only  Patron,    and  fliall   have  a 
.                Quare  Impedit  or  a  Writ  of  Right,  as  his  Cafe  requires.     Dod.  of  Adv. 

66.  Left.  12. 


(O.  c.  2)     One  or  fevcral,  and  where  t<wo  fhallyw/. 
But  now  the  I  13  Y  the  Regifter  the  Kivg  fliall  join  with  another  Perfon  in  a  Quare 


common 
Opinion  is. 


B 


Impedit.     F.  X.  B.  32.  (G.) 


that  the  Kinj;  fhall  have  the  whole  Prefentment  alone,   and  alone  fhall  have  the  .Action  ;  t 
that  it  (lands  with  Reafon,  that  the  King  and  the  other  join  ;as  in  aPopuIar  Aclion  the  Pur;y 


but  metlutiks 
(hall  (lie  for 
the  King  and  for  liimfelf,  and  the  Words  of  the  Writ  are,  Qui  tarn  pro  Domino  Rege,  quam  pro  IcipCo. 
feOjUitur  &c.  and  that  in  an  Aftion  of  Debt  &c.  and  by  the  fame  Reafon  the  King  may  fue  for  liimielf 
and  for  the  Party.  And  the  common  Experience  is,  that  a  Man  fhall  hold  Lrids  in  common  with  the 
King,  and  alio  Chattels  ;  and  by  the  fame  Reafon  they  may  have  the  Prefentment  or  Advowlbn  in  com- 
mon.    F  N.  B.  52.  CG.) 

2.  If  a  Man  has  an  Advowfon,  and  the  Church  voids,  and  tzvo  Strangers 
^o  fever  ally  prefent  their  Clerks  to  the  Billiop  to  that  Advowfon  ;   the  Pa- 
tron Ihall  have  diverfe  ^tiare  Impedits  againll  them,  if  he  will,  and  lliall 
have  feveral  Judgments,  and  Ihall  recover  feveral  Damages  for  their  fe- 
veral  Prefentments  and  Wrongs  done,      F.  N.  B.  35.  (N.) 
Note,  They       3.  It  Coparceners  wake  Conipfjition  to  prelent  by  "I'urns,  and  a  Stranger 
may  waive     u^n^ps  and  prefenteth  /«  the  Tarn  of  one  of  them,  yet  if  they  will,   they 
titlon  ofVhe  '"'^Y  1°'"  *"  ^  Quare  Impedit  againll  the  Stranger,  notwithllanding  the 
Advowfon     Compolition.     F.  N.  B.   36.  (D.) 
and  the  Al- 
lotment thereon,  and  prefcnt  by  a  new  Partition.     F.  N.  B.  ;(?.  (D)  in  the  Notes  there  (a)  cites  21  E. 
3..  31.     15  E.  5'  Qua.  Imp.  58.  3}  E.  3.   Qua.  Imp.  196.  by  Skipw. 


(P.  c)  What  Perfbns  mciy  have  it  upon  the  Difturbancc. 


j^are  Itnpe 
eiit  was 


I.  TjFtlje  Baron  be  tiff urbcti  to  prefcnt  to  an  sltiliotDran  tuljicl)  fje 

.        u  u  1  ba£i  iW  Rtgijt  of  biS  !©ifC,  aJid  dies,  the  Feme  fljaU  l)aUe  fl  ^MXt 

%N  IS  Jnipemt  of  tljts!  Dtrtiirbancc*   3  C*  3*  £luarc  MmM  57.  3 1). ;. 
counted  of  diuitc  ^nipeDtt  lu  aOmittcu. 


Agreement   io 


'frefent  by  7'iini  betnveen  5  Sifiers  of  the  Advowfon  appendant,  and  that  he  married  the  one,  and  this  h  the 
Turn  ot  his  Feme  &c.  and  the  Defendaiu  demanded  J udj;inent  of  the  Writ,  becaafe  ir  \i  in  Jure  Uto- 


ix- 


■ ; ; ■ . 

Prefentation.  ^  1 5 

rif,  who  is  in  full  Life  nor  named  ;  and  yet  the  Writ  awiii-Jeii  £;ood,  b>:3ule  yiothiiiir  is  ta  he  recoveri'H 
hilt  the  Prefentiiient  .xiui  not  the  Jd'vivfon  ;  and  if  Writ  to  the  Bifhop  be  ;uvai'ded  agiinlT  the  l}i'-'in,  vet 
by  this  the  Feme  is  not  out  ofPoflelTion  ;  for  flie  is  not  Party  to  the  Judgment,  and  alfo  111 e  is  aided  b/ 
the  Statute  of  V\'c.tiniaUei'  z.    Br.  Baron  and  h'eme,  pi.  2S.  cites  50  E   j.  15. 

\f  B.iroi  he  llifcd  of  aii  .4di\-,-ii'fo>i  hi  '^ure  ['yoris,  ^4s  in  Denver.,  and  the  Church  -jouis,  and  the  Feme 
Hies  before  Dif.Krh.vue,  and  after  the  Baron  isdilluvb'd,  he  fhali  have  this  Prefentation.  Per  Thiracjuod 
non  negatur.     Br.  Prefentation,  pi.  i  5.   cites  54  H.  4.  12. 

2»  Gu:ardian  in  Socage  of  a  Manor,  to  which  flU  ^tlliOltirolt  l'£J  appCU= 

Dnnt,  iMic  be  niffurbc5,  fljall  \yx^t  a  CXiuirc  JmpctJit  in  his  own  N.iinc, 

tijo' l)c  cannot  mauc  account  tijctcot;   dnicofe.  u  foL  132,  aD-iT^Jebl 

JllOgCU.  Guaidimin 

fiocage  of  a 
Manor,  unto  which  an  Advowfon  is  append.int,  and  the  Church  voids,  the  Heir  fli  iil  prefeiit,  and  not 

the  Guardi.m,   becaufe  Ire  cannot  account  for  the  fame.     V.  N.  B.   ;;.  (,T) It  Icems  the  Prefenr- 

Inent  ouji^ht  to  be  in  the  Name  of  the  Heir,  and  yet  a  Guardian  in  a  (^lare  Impcdit  at;ainll  him  may 
make  Title  againft  the  Stranc;er  in  Right  of  the  Heir,  and  alfo  have  a  W'tn  to  the  Bifhop  thereupon, 
but  he  cannot  m;untain  (^u  ire  Impedit.  F.N  B.  33.  (T)  in  the  Kotss  there  (^a)  citcs29E.3.  5.  14.  2i. 
27£.  5.89.  a.    S£.  2.    Preiei'.tment  10 

3.  One  Ccparccfier,  upon  Agreement  to  prefcnt  by  Turn,    fliall   hiive  Sow  here 
Quare  Impcdit  ao;ainlt  the  other  who  dillurbs  him  in   his  Turn  ;  quod  .Ioi"^"''"fs 
nota.     Br.  (^uare  Impedit,  pi.  139.  cues  22  £.  ^.  8.  t-.^,  by  Dcci 

to  prcfent 
by  Turn,  and  one  of  them,  or  tlie  Grantee  of  one  is  difturb'd  in  liis  Tnrp,  he  m.jy  bring  (^uarc  Impe- 
dit.    See  1  6alic.  43.  Mich.  11  VV.  5.  B.  R.   Bilhop  of  isalisbury  v.  Philips. And  12  Mod"  ,n.  S.  C. 

4.  Thxtt  Joint  e-icwts  were  feifed  of  certain  Land  to  -ivbich  an  Jdvonfon  But  by  7 
-£as  appendant^  and  the  one  prefentud  alonc^  and  his  Clerk  admitted  and  in,  '\""*'  "?' 
and  alter  be,  ivbo  pn-fented  hmi,  died^  and  utier  the  hicuiiihent  died,  and  the  tiiu,.pjt;r)n 
other  fii-o  "ivho  fiir-vi-vcd  prefented  and  were  dilturb'd^   and  brought  ^^/are  fhall  not  dif- 
Impedit,  and  lliew'd   this   Prelentment   lor   their  1  itle,    and   admitted,  vlicc  the 
Erooke  fays,  And  (o  fee  that  the  Prefentation  of  the  one  Jointenant  does  ^^'"'^  of  the 
not  put  his  Companion  out  of  Poifeiiion,  and  adds  a  .^au^re  if  it  had  been 
an  Advc-ivfoi!  m  grofs,  and  qu^re  if  they  had  been  Tenants  in  common. 

Br.  Qj.iare  Impedit,  pi.  3.  cites  27  H.  8.    13. -But  by  P.  37H.  8.  Hor- 

wood  the  King's  Attorney  was  clear  in  Opinion,  that  fuch  Prefentmenc 
of  the  one  puts  the  others  out  of  Polieliion  i  and  Bromley  and  Hales  Ser- 
jeants contra. 


[P.  c  2]    y4gahijl  njohom.     By  what  Perfoiis. 

W'atr.Conip, 

[u]  3.  '^^?)(!5  Chapter  map  tjalSCtt  againft  the  Dean  of  their  feveral  Inc.8vo.441. 


ron. 


T 


"Polieliions.     40  (£»  3»  -28.  0*  '-■?H-  IK 

^  cites  S.«^. 


[2,]  4*  <il  Prior  Utiip  IjilllC  It  againft  the  Abbot.     40  C*  3.  28*  b*        The  Founm 

oj  A  Priory 
fliall  have  a  Qiiarc  Impcdit  afaitifl  thi  Svhfricr  and  the  Comment,  if  they  dillurb  him,  to  prefent  toan  Ad- 
rowfon  which"  belongeth  to  the  Houfe,  if  it  voids  during  the  Vacation,  iv  here  the  Fou-'der  ou";ht  to  have 
the  Temporaltiesduanj5  the  Vacation  F.N.  B.  34.  (.Ojcites  p.  y  E.  3 —The  Patron  of  an  .\bhey  Prefcn- 
tative brought  a  (^uare  Impedit  againft  the  Superior  (Sub-prior)  and  Convent.  F  N.  B.  34  (O.)  in  the 
>JGtes  there  (.e)  cites  I !  E.  3.  C^jarc  Impedit  1 57.  iS  E,  3.  15.— S.  P.  F.  N.  B.  38.  (G)  citesTrin.31.  E.  t 

3.  Where  Gikxrdian  prcfoits  in  Right  of  the  Heir,  --ji'hether  the  Heir  has 
Right  or  no  Right,  he,  who  \\iil  have  thereot  Quarc  Impedit,  ihail  ha\e 
it  againft  the  Guardian,  and  not  againft  the  Heir.  Br.  Quare  Impedit, 
pi.  47.  cites  7  H.  4.  25.  37.  . 

4.  Where  the  King  or  the  Pope  prefents,  Quare  Impcdit  fliall  be  againji  ^-  ^  ■  '■''^^^.^ 
the  hictimbeiit  alone.     Br.  Quare  Impedit,  pi.  47.  cites  7  H.4.  25.   37.        pfrroL"'^ 

cannot  be  impleaded.     Br  Quare  Impedit,  pi.  149    cites   12  H.  S.  12 Q.iare  Impedit  by  the /aw^ 

axr.irji  ii(;//;.;.7;:i.;i.'  a!ct:e,  \uio  pliaded,  vvl'.ich  K.if  fc:ii:d  .t^.iii'Jl  tie  t-iv.Z,  :.r.ii  itv,as  pleaded  in  Arrert, 

b.CiUlL- 


Prefcntation. 


b:Ciu(ethc  Pntron  iv.ts  vet  nnrncH  in  the  Writ ;  but  bccauCe  the  \A'rit  was  admitted,    it  was  awaiilcd  that 
the  Plaiutirt  Eat  indc  fine  die.     Br.  Quarc  Impcdit,  pK  44.  cites  5  H  4.  25 

$.  The  Maficr  and  Cofifreers  of  D.  prcfcfited  the  Mafer^  and  the  M^iJIer 
and  Coujn-ers  of  E.  brought  ^uare  Iiiipcdit  againfi  the  Alajhr  by  a  Jirange 
Name  i  and  it  lay  well,  and  they  recovered  per  Judicium ;  lor  it  was  a 
void  Prefentment.     Kr.  Qiuire  Impedit,  pi.  149.  cites  12  H.  4   12. 

6.  When  a  Man  dijltirbs  and  dtcs^  Quare  Impedit  lies  againlt  his  Heir 
and  the  Incumbent^  becaufe  he  lliall  make  Title  and  fave  his  Polllirion  : 
But  by  fome,  in  Qtiare  Impedit  when  the  Patron  dies  as  above,  and  the 
PLuiitiff' proceeds  againjl  the  Incumbent^  this  fliall  not  bind  the  Heir  ol  the 
Patron,  becaufe  he  is  not  Party  j  and  there  is  no  Reaibn  to  give  Quare 
Impedit  againlt  the  Heir,  for  he  does  not  make  any  Dillurbance  ■■,  and 
alio  the  Plaintilf  Ihall  recover  Damages  againlt  him,  which  is  not  Rea- 
fonable  where  he  does  not  make  any  Dillurbance.  Br.  Quare  Impedit,  pi, 
cites  9  H.  6.  30. 

S  P.  for  by       ^.  Quare  Impedit  lies  well  againlt  Parfon  imparfonce ;  for  the  Church 

torteicuc,     jg  void,  ha\  ing  Regard  to  Strangers.     Br.  Plenarty,  pi.  6.   cites  38  H. 

6MomLis    6  20.  Per  Prifct  and  Fortefcue. 

no  Plea  un- 

lefs  he  lays  of  his  own  Prefentment,  and  Parfon  imparfonce  is  not  in  by  the  Prefentment  of  any.    Br- 

Quare  Impedit,  pi.  1 11.  cites  S.C. 

8.  One  Joifitenant  or  tenant  in  Common  Ihall  not  have  a  Quare  Impe- 
dit for  the  Advowfon  which  they  have  in  Common  or  in  Jointure,  if 
one  of  them  prefent  folely  againlt  his  Companion.  F.  N.  B  34.  (U) 

9.  If  A.  wrongfully  by  Ufurpation  prefent  B.  and  B.  is  received,  and 
afterwards  A.  having  gained  the  Patronage  grants  the  Patronage  to  R.  S\ 
W'almfley  J.  thought  the  ^iiare  Impedit  Ihall  be  brought  againlt  R.  S. 
whicn  Anderfon  Ch.  J.  doubted.  2  Le.  58.  Mich.  32  Eliz.  C.  B.  ia 
Cule  of  Hall  v.  Biihop  of  Bath. 


SeeCN.c)  [P.  c.  3]  Of  vvhat  Thing. 

[i]  5.  Tif  tijcrc  be  a  Jjrcfcntmcnt  to  tijc  Appropriation  bp  a  g)tran^ 

^  gcr,  anu  tije  Clerk  inouctcr!,  vtt  tijc  ii)atcon  at"  tlje  appca= 

pnatiou  cannot  Ijaiic  €luare  Jnipcoit,  oecatifc  ijc  cannot  Oc  put  out 

0ri30flefl"l0m     44  ^»  3-  33-  \3* 

[2]  6.  a  Ciuarc  Jnipcoit  Hcs  of  a  freeChapei  luijtci)  a  B^an  fiad 

by  the  Patent  of  the  King,  if  tIjC  ^IjCtlff  Ultll   nOt  pUt  tjUll  Ul  {doM' 
fiom  14  Ip*  4  lib* 

watf.comp.     [3]  7.  a€liiarc3impcti(tlic0of.an  Hofpitai.  is  e.  3- 1- 

Inc.Svo.  4^0. 

cap.  22.  cites  S.  C.  and  Regift.  Orig.  51.3. 

Br.  Quare  [4]  8.  3if  It  tZ  brought  againli  the  Incumbent  and  B.  as  Patron,  it  is 
Impedit,  pi.  rio  pl^r^  tbr  the  Incumbent  that  C.  prefented  him,  UpOn  UJijOfC  PrcfCltt^ 

c^per  B?ian  t"f "t  \)Z  tua^  tntiuctcti  i  jfot  1)0  1)30  iiamcD  a  Duiurbcr,  anD  coni- 
that  having '  plauicD  of  a  Diftucbancc  bj?  Ijinu  22  e.  4  44-  b.  (K.  £lua?rctl)i,£i0 . 

named  a  Dif- 

turber  and  an  Incumbent  the  Writ  is  good  ;  For  the  Plaintiff  is  not  difturbed  by  C  but  by  B.  and 
there  is  no  Reafon  to  have  Aftion  ag.iinft  him  who  does  no  Wrong  to  the  Plaintiff,  and  therefore  was 
held  good.  And  Brooke  fays,  fo  fee  that  the  Writ  is  good  agarnjl  DiJhirLer  and  Imtimhent,  though  the  Dij- 
turher  is  not  I  ertis  Putronus- 

Watf  Comp.      [5]  9-  SI  Cmare  3!mpCllit  lies  of  a  Deanry  by  the  King,  though  it 

Inc  Svo4;o.  be  electi\e  by  others.    17  C.  3- 4c- aQjUtllJCO* 

Mp  22.  cites 

S.C. 


Prefentation.  ^ij 


(Q^  c)  Of  what  Things,  and  fir  ivbat  Caufis  it  may  be 

brought.  And  what  will  *  be  fullicient  Seifin  to  main- *  See  (R.  c) 
tain  it.  In  what  Caies  it  is  t  necellary  to  have  t  See  (s.c) 
Seilin. 

I.  r  if  il  ^iin  creates  a  Church  at  this  Day, 

^  rent,  ijE  lanuot  mntntnin  Ciiuuc  3^;i' 
nllccc  a  pccfcutmciit.  Diibitatiu%  20 

4-  3-  AWanftall 

not  have 
Quare  Impedit   if  he  cannot  allege  a  Prcfentmcnt  in  himlelf  or  in  Iiis  Anceftors,  or  ia  another  Perlbn 
from  whom  he  claimed  the  Advow  (on,  and  that  in  his  Count,  unlefs  in  fpecial  Cafes;  As  if  a   Mau  at 
this  Hay  *  errH  a  Churih  p.inchial  hy  a  Licence  of  the  King  or  other  Chantry,  whicli  fhali   be  prcf'ent- 
able  Sec.    If  he  be  difturbcd  to  prefent  to  the  fame,  he  fhall  have  a  (>iare  Impedit,  without  alleging  of 

Prcrentment   in  any  Perlbn,  and   fhill    count   upon  the  fpecial  Matter.  F.  I\  B.  55,  (H) VVarf 

Comp.  Inc.  Svo  442.   cap  22    cites  S.  C.  And  Co,  the  Doifor  (ijy.s,   he  fuppofes  the  Law  is  now   taken 

to  be. ■*  S.  P.    if  he  be  difturbed  to  prefent  at  the  firif  time,  he  fliall  h.ive   (>uare  Impedit  witli- 

out  allegirg  Prefentraent.     2  And.  50.  in  pi.  57.   in  Cafe  of  Sir  J'liomas  Cecil  v.  Hail. 

2.  Jf  Advowfon  be  granted   by  Parliament,  IjC   (Ijall  IjtllJC   faTlUarC  ^'^  Q:wrc 
3iirip£llit  ISt^tTcnttirC  upon  the  Matter.     21  (£,  4.  3.  D»     16  {t)»  7.  8.      ^"ip'^dit,  pj. 

,  .         ,     ,  '  T^-  Cites 

2t   E.  4.  I   5.  per  Cl-.oke. WatC  Conip.  Inc  Svo.  442,  cap.  22.  cites  S.C. S  P.  that  he 

fhali  have  (.^uare  Impedit  without  alleging  Prefcntment  before.  2  And.  50  in  pi.  57.  cites  ,S  C. 

In  Ciuare  Impedit  to  prelcut  to  the  Church  ot  .St.  Andrew  WardroSe,  Plai'infF declared,  thit  by  the 
Aft  22  C.jr.  2.  for  rc-bmld/tig  Lot?clcn,  it  was  eriacied,  th.tt  the  P.tr'jhcs  of  St.  .'iiuireiu  IVardvche  aiuiSt. 
Jm-.e  Black  Fricxrs  pculd  he  utited,  a:d  St.  Andrew  'Wardrobe  to  be  the  Church  to  be  rebuilt,  and  the 
Parifh  Church,  and  the  Patrons  to  prefe?it  hy  Turns,  and  the  fir  [I  Prefentation  to  be  by  the  Patron  of  the 
Church  the  Ei.dcii'wefit  of  fAnh  '■^as  of  the  ^realeff  I'ali^e,  iihich  was  that  of  St.  .■ii:drezi:,  that  i  laly 
25  Car  2.  the  Incumbent  of  St.  Andrew  Wardrobe  di;-d,  and  that  the  King  as  Patron  prcfcnted  f.  S. 
which  wa.sthc  firft  Avoidance  after  the  Art  ;  that  J.  S  died,  whereby  it  beiong.d  to  the  Piaintilf,  (Pa- 
trons of  Black-Fnarsi  to  prefent  as  in  their  Turn,  and  that  the  Defendant  hiudred  them;  The  Sifliop 
claimed  nothing  but  as  Ordinary,  and  til.ike  the  Defend.uit  demurred  to  t'.ie  Declaration,  for  that  ic 
did  r.ot  appear  that  the  Plaintiffs,  or  any  byuhom  they  claimed  had  prrfented  to,  or  e^er  •■xere  t»  Poffeflon  of 
the  *  Church  cf  Black-Friars  ;  and  that  fuch  a  Prefentation  mul^  always  be  alleged  in  a  (^ua.  Imp  As  to 
this  it  was  laid.  That  this  being  an  Union  by  Aft  of  Parliament,  which  appoints  that  the  Patrons 
fhall  prefent  by  Turns,  and  that  the  greater  Value  fhould  prelent  firif,  this  was  not  necellary  ii  this 
Calc  ;  to  which  the  Co»n-t  faid.  That  tiie  Aft  did  not  intend  to  rellore  a  Title  to  one  who  had  loii  ic 
by  Ulurpation,  but  to  leave  the  Title  as  it  was  before  ;  and  periiaps   here  miglit  have  been  Ulurpition 

before  this  Aft  made  ,  and  if  lb,  then  the  Ullirper,  and    not  the  Plaintitis,  is  Patron    witliin  t.'ie  A -r 
.:ii  ^1 1.  -J  ; 1  .1- .;..  i:>  ;_i.^  i...  „  ixr..:..  ,.f  u  :.^i-^  „f  a  j r... j  ^1 :.  .  ^ 


thi.s  Cafe  of  Union  by 

would  intend  it  a  Church  now  within 

here  to  uie  the  Word  (Cliurch)] 

3.  Jf  tlje  King  lie  iutitled  tO  tlje  Stl^JOUiron  by  Office,    \)t  fljall  B  ••  <:>iiare 
talse  ClUilte  JnipeHit  without  Prelentation.  21  (J5»  4-     16  lp»  7.  3,        ^ycdn^  pi; 

E.  4.  I.  5.  and  this  as  well  to  an  Advowfbn  in  Grols  as  to  an  Advowfon  Append.mt,  and  by  all  the  In'" 

tices  the  King  is  Patron  by  the  Office  till  it  be  traverfed  in  Gliancery. WatfComp  Inc.  b'vo" 

442.  cap.  22.  cites  fame  Cafes. 

4.  JJ  Recovery  in  Quare  Impedit   a  gain  ft  B.  and  Dam.ige.s   for    two  WatC  C^mp 

Years  faccaufc  tlfc  C!}urci)  luiis  tu!i  Of C*  ijj  ii  g8on  Citic  m  a  Ciuare  ^"^'  sv°' 
3inipeuit  aftct  ti)c  Deatf)  of  13*  UJitfjcut  allcEmij  l^teicutmcnt*  a^'^^  "P;."- 

€.3.  8.  in  SeeCR.cT 

5»  But  in  tW  Cafe,  if  Jje  fjan  once  prefentcd,  and  the  Church  w'rfCon-p 
full  alter  the  Recovery  Cf  1)10  l^tCfcntUiCnt,  tljISi  HCCOlJCn'  15  UCt  fUf  he.  Svo. 

ficicnt  '^\t\u  42  €,  3-  s.  b*  443-  cap.  22. 

cues  S.  C. 
4  N  6.  If 


4i8 


Prefentation. 


♦BothTran-  6.  Il'an  Jbhot  has  been  ParfoH  imparfo/tee  Time  out  of  Mind,  and  af- 
{lationsai-e  jervvaids  the  Abbey  is  *Di[loh'd,  he  of  whom  the  Advowion  is  holden 
im'\"ie^"'^^  fliall  prefent,  and  ifdillurbcd  fliali  have  a  Quare  Impcdit,  without  al- 
French  is  leo-ins;  of  any  Prcfentmenc  in  the  Count,  but  iTiall  ihew  the  fpecial  Mat- 
(DiiToIv-d.)   tcf.  F.  N.  B.  33.  (K) 

7.  If  a  M.in  be  dilTeifed  of  a  Manor  unto  which  an  Advowfon  is  ap- 
pendant, and  the  Advowfon  becomes  void,  die  Dijfeifee  may  prefent  and 
ha^•e  a  Quare  Impedit,  tho'  he  has  not  entered  into  the  Manor.    F.  N.  B. 

33-  CO:) 


seecao        (^^  c)     UlJiU  will  be  Jujjjcieut  Safin   to    maintain 

this   Writ. 

r*  nr£)3g)  l©rit  1^  nil  in  tl)C  ^^OflClTiOn,  anU  tlje  Prefcntment  is  the 
J_    'PolfeHion.     21  C  4.  2» 
2*  3f  nip  Clerk  be  imUtuted  and  not  Induaed,  M^'^IXK  tt  'DOtD^  agatll 

J  niav  maintain  tljtsi  l©i'it»   38  ID.  6. 15.  b»  lip  99aik. 

r^v^\-^0      3.  a  Recovery  in  filiate  IJUlpCDlt,  without  alleging  Prefentment,  IS 

*Foi  ;7-.  not  *rumdcnt,  liccaufeit  Ucjs  aptnff  tlje  Deforceor,  ioljo  t\mm  na= 
'vaCtS^.  tijing  in  tlje  ^^atronage*   1 39  $p-  6, 25.  U* 

irc.svo.445.  .... 

cap.  22.  cites  S.  C. S,  P    For  he  (hall  recover  only  the  Prefentation  in  thi,s  Wnr ;  hut  a  Recovery 

in  li'nt  of  Ri^It  of  M-vovjfon,  is  a  f^ood  Title  without  Prefentment,  becaui'e  there  he  fhall  recover  the 
Advowfon.   "^Br.  Quare  Impedit,  pi.  142.  cites  S.  C. j  F-^-  B.  36  (D.) SeeCQ^c)  pi.  4. 

Br.  Quare         4.  ^  Prefentment  by  Lapfe  to  the  Ordinary  iS  fUfRciCnt  §)eifin*    9 

Impedit,  pi.    p^  6.  24.  ll. 

00.    o.  1  « 

cites  21  H.  6.  44.  Per  Curiam. 

5.  2,  Prefentment  before  Time  of  Limitation  jg  llOt  rUlTiCieilt ;  te-' 

caufe  it  (0  not  triable*   20  c*  4*  ^s*  42  ^*  3*  4*  b*  aamitteo*  17  €. 
3.  II*  14*  b* 

W»r.  Comp.  6.  3if  an  Abbot  had  an  Impropriation  Time  whereof  Memory  &Cc. 
lnc.8vo..K:.  fJUtl  aftet  tl)C  Abbev  is  diirolved,  tl)i0  Perpetual  Incumbency  i^nOtfUf- 

cap  22j:ites  ^^^^^^^  g,jj{-j„  fj,^  fjjj  p^fron  i  fot  It  IS  not  prcrcntattuc*   Dubtta^ 

But  If  the     tUC.  20  (&.  4»    15, 

leifed  of  an  Advowfon  which  has  been  ever  held  appropriated,  he  fhall  have  Quare  Impedit  without  al- 
let'in"- any  Prefentation.     Watf  Comp  Inc.  Svo.  442  cap.  22   cites  17  E.  3.  10.  b.  20E.  4. 15. 

Quare  Im-         7.  Jf  a  ^an  prefents  to  a  Prebend,  ailU  aftet  the  Name  is  changed, 

pedit  by  the  pj(  (fte  fatii  prefentuient  ijs  fufficient  S>eifin  to  maintain  a  €iuare 
tZ:/hL  Jlmpenit  upon  tlje  neiu  Bame,    ro  e,  3.  26. 

the  Bfjhop  of 

St.  Davids  ivas  Patron  of  a  BerJefce  in  the  Church  of  A.  cMcA  the  Prebend  of  G.  and  that  fitch  a  Bif.'op  pre- 
fent ed  to  it  hy  Name  of  Prebend,  and  after  the  Bipop  by  Jjfent  of  his  Chapter,  and  the  Chapter  of  J.  made  it 
a  'Treafury  hy  Name  of  Dignity,  and  annex  d  it  to  the  Bifioprick  ;  and  after  the  Kina  rehe.rrfng  the  Ordinance, 
Ratifed,  Granted  and  Confirmed  the  fame  Thing  accordingly,  and  that  it  fliould  be  n.imed  Treafury  ac- 
cordingly, and  that  J.  B.  Incumbent  there  died,  by  which  it  voided,  and  remained  void  till  the  Tem- 
poralties  came  into  the  Hands  of  the  King  by  the  Death  of  7'.  G.  Bijhop  there,  and  yet  is  void,  and  fo  it  be- 
longed to  him  to  prefent.  And  fb  fee  that  a  Voidance  which  belongs  to  a  Bifliop,  who  dies  before  he 
prefents  thereto,  lliall  afterwards  belong  to  the  King,  quod  nota  ;  and  the  Defendant  demiirr'd,  be- 
caufe  it  was  never  put  in  Ure  by  the  Name  of  treafury  by  any  BiJl>op,  therefore  the  King  ought  to  have  made 
T'itk  by  Name  of  Prebend  and  not  effreafury  ;  for  during  the  Life  of  J.  B.  Incumbent  of  the  Prebend,  the 
Bifhop  is  only  a  Patron  as  of  Prebend  and  not  as  Treafury,  till  a  Bifhop  has  put  it  in  Ure  by  fuch 
Name  •  &  non  allocatur;  but  Writ  to  the  Bifhop  awarded  for  the  King.     Br.  Quare  Impedit,  pi.  4;, 

cites  50  E.  3   26, Br.  Prefentation,  pi.  10.  cites  S.  C     Br.  Alienations,  pi.  3.  cites  S.  C 

v^■atf  Comp-  Inc.  Svo.  442.  cap.  22.  cites  S.  C. 

8.  If 


Prcfentation.  ^jg 


8,  3If  Prefcnrment  be  to  an  AdTOwfon,  ml}  aftCl*  ic  is  Appropriated    Br.  Qu„e 
and  a  Vicarage  made  m  the  lame  Church,  tl)t  |'i)refcntjncnt  HfOVdm  IS  ^'"P<^dit.  pi. 

rufficicnt  to  Ijaiic  dium  :jmpc5it  foe  tlje  Dicaraac,  mirijout  orficc  *"■■""''•'^♦ 
^i5rc^enr^icnt  fot  tljc  aDicavagc*    5oe,3.zn,  ■* 

9,  :jf  Prclentment  |ja0  bCCU  to  two  Churches,  ailU  aftCrthcy  arc  unit    f^'-Q.ua.e 

ed,  ijc  U)!)o  ig  mane  l^atron  bp  tl)C.itiuaii  niaplja^jc  Ciuarc  ImucDit  '"'P''^*''  i^' 
tfjDS,  uiityoitt  otljcr  i^rcrcntmrnt.   50  e.  3,  27,  JUHpt-un  4^.  cues  ^ c. 

io»  Cije  lame  Law  UJljCrC  a  C'OttrCl)  Parochial  is  made  Collc^ial    ^o  S'"  Quarc 
C.  3*27,  ^  Imiedit.pl. 

J—-  P].  10.  in  Roll  i..  placM  after  the  Sub-Divifion  of  (In  whom)  but  it  (eems  more  proteHrpiac'd 
before  it,  as  here  it  is  done.  r    f     /   i"<»-  u 

hi  nzihom, 

11.  CljC  l^l'CfCntmCnt  of  tfjC  Grantee  of  the  next  Avoidance  10  fuf  *  Br  C^uare 
fiCient  'Stitle  for  the  Patron  in  Fee  tO  \)dS^Z  tiJlS  WX\t*  *  9  1%  7,  23,  Co,  I'^pcdit,  pi. 
5.  Count efs  of  North.  97,  b*  a5)tHlgCD»  s"'-!^ 

Inc.  Svo.  444.  cap  22.  cites  S  C. S  P.  For  he  made  it  in  Rif^ht  of  the  Grantor,  and  thercfn-e  it 

Ihall  fcrvc  tor  him  to  make  Title  in  (.^uarc  Impedit.     5  Rep.  97.  b    Mich.  59  &  40  Elii.  C.  B.  the 

Counted  of  Northumberland's  Cafe. Alo.  456.  S.  C. And.  4S.  S.  C— Cro.  E.  51S.  S.  C . 

See  pi.  15.  infra. 

12,  3it  OUa:Ijt  to  be  allcSCO  in  the  Plaintiff,  or  in  him  whofe  Eftate  he 
has.    21  (£»  4»  2.b* 


Fur  rjjhom. 

Avoidance 
the  Grantor  grants  the  next  Avoidance 


i^,  3  Grantee  of  the  Next  Avoidance  prefents,  aUB  aftCl*  tljC  Heir  of  ^''-  Qj^rc 

uice,  tijcfaiD  pi-cfcntmeuns  rum=  iTz^rdt'es^^' 


dCatior  the  Grantee.     9Cp»7,  23,         '    "  '  ^ s'.c.^ 

VVatf  Comp.  Inc.  Svo.  445.  cnp  22.  cites  S.  C.. 


14-  Soif  ©rantee  of  tijc  jf|3c,tt  a^oinaucc  prcfcntg,  anti  after  Grantor  watrcomp. 

grants  the  Advowfon  to  A.  who  grants  it  to  B.   tlJC  faiO  l^rCfCJltllient  IS  ^"c.^^o-445- 

fuffident  for  'B.  in  tijts  iJ^nt,  imtljout  aUeijing  lamcntumit  nt"t""'"" 
tfte  ©ranter  or  9.  Od.  u  2.  c"^a.  106.  is. 

I5.€;ije  |9refentment  of  Grantee  of  Next  Avoidance  !0  fUffiClCnt  for  .See  pi.  n. 

Grantor  and  his  Heirs.  CO.  5- 97-  m!Jtlt!0,'e5.  Supra . 

Sec  {Vc)  p). 
5.  4.  Infra.—  In  Quare  Impedit  the  Plaintiff  rw/Kf?.-/  that  his  Ancefior  luas  feifcd  of  the  Advowfon  and  his 
Cleric  in,  and  after  he  /;r/n:teti  the  Advowfon  to  J.  S.  for  Lt'Ct  the  Church  voided,  J.  S.  prejhitcd,  and  his 
Ck'rk  in,  andy  S.  died,  tndafter  the  Church  loicled,  bywhi.h  the  Plaintiff  as  Heir  oj  thej/me/fcr  1-refented, 
and  the  Dcfenilarit  difturbed  inm,  and  it  wa^  held, That  le  jVaU  .illet^e  tije  onePrpfeMatioii  a>id  the  ether  ;  For 
the  Prefcntation  of  the  Tenant  for  Life  does  not  make  Tirle  to  the  Plaintiff,  nor  the  Prcfent=ition  of  a 
Guardian  or  Termor,  and  the  Deferidar:t  arfivered  to  the  frji  Pr.'Jeiitation,  and  had  fjfae  itpn  it,  and  not 
upon  Beth.  And  per  Littleton  he  ought  to  anfwer  to  Both,  but  the  liTuc  fh.ill  be  upon  the  Arllonly,  and 
the  Pl.iintitf  fhall  not  reply  to  him  to  the  fecond  Prefentment.  Br.  Ci.uare  Impedit  pi.  129.  cites  7  E  4,  20. 
The  Rooks  are  not  dirccilv  that  Prefentment  alleged  in  the  Grantee  is  not  good  ;  But  that  where  a 
Prcfentment  is  alleged  in  the  Grantor  and  Grantee,  there  the  Prefentment  in  tiie  Grantor  is  only  traver- 
fablc ;  For  that  is  the  Principal,  and  the  alleging  of  the  Prefentment  in  Both  is  notdouble.  Cro.  E.  5  iS. 
Mich.  58  &  59  Eliz.  C.  B.  Fitton  v.  Hall. 

16.  3f  Tenant  for  Years  preffittgi  mU'tng  f)iS  fficrm,  tfjI.S  I0   fllffi^  Sr.  Quare 

fient  for  ijim  in  Pve\  eriion.  22  c.  4. 9-  b.  impedit.  pi. 

17.  So  If  Leliee   for  Lite  yrCfeUtlS.  22  C.  4-  9-  ^*  "^eTs 
iS.  So  if  Tenant  at  Will  prCfCllt^.  22  C  4-  9-  t                                   Per  Choke. 

Wati'.Coinp. 

Inc.  Svo,  445  cap.  22.  cites  S.  C. S.  P.  and  with  this  agree  divers  Opinions  in  :  E.  4  20.  22  E. 

4.  9.b.  16H.  7.  i3.  a.  9  H.  7.  2;.  Brook  tit.  Qiiare  Impedit  122.  i;  Eliz..  I).  500.  And  true  it  is,  tlsac 
it  is  generally  undcrllood  in  our  Bonks  that  where  Tenant  for  Years  or  for  Life,  brings  Qiiare  Impedit 
he  ought  to  allege  Scilin  in  him  who  has  the  Fee,  and  this  is  regularly  true  ;  And  yet  Pre!ent;.tions 
by  themfeives  flitlice,  asappcu-s  8  H.  5.  10.  and  this  Refolution  does  not  impugne  the  (hid  Rule  ;  For 
Prefentation  of  the  Grantee  of  the  next  Avoidance  being  made  in  the  Title  and  Riglit  of  the  G'antor 
fhall  Icrve  as  well  for  him  as  his  own  Prefentment  and  is  Tantamount.  5  Rep.  yS.  the  Countefs  of 
Noriliumbcilarid's  Cafe. 

19-  ^3 


/^20  Prefentation. 


^vat^comp     19.  So  tf  a  Guardian  ptcfcutiS  Uutinit  tljc  i©aruflj!p.  22  e»  4.  9-  lJ» 

i!  4  5  cap 
rites  S  C 
But  i?ei- 


.A,  cap  ^2  f^^".  t'^^  ^^"^5f  IJE  tOe  ©iwrDian.  ar.ta  fo  42  C  ?,  4,  l\  taljcrc  a  Manor 

citesS  C.  —  delccnds,  and  no  Prefentment  has  been  before. 


apQ  tne  uercnddiit  (liltui-bed  him.  Caund.  i-did,  the  Clerk  alkgecibythel 
7.  .S  cii.i/  mt  received  r.or  iafiituted  hy  the  rrcfentathi,  of  J.  S  and  it  leei 
Frclbntmcnts  of  the  King  during  Culh.dy  did  not  m':.ke  Title  to  hnii 
J5eifin  by  tiie  [-"rclcntment  in  tlie  Anceftor  ot  the  Heir,    or  in  the  Ke 


Brian  cleurlv,  the  Plaintift  i  i  Qinre  Impedit  J?.m//  alle_^e  a  P:-efeiitme>it in  hisAncefior  over  and  above  the  Pre- 
fentmert  ot  il e  Guardian,  and  otherwile  ill,  and  therefore  iTiall  not  iiavc  Quare  Impedlt,  but  it  is  put 
to  the  V\'iit  of  Rijjht.  Br.  CJuare  Imjedit.  pi.  i  59.  cites  iz  E.  4.  S. 

Watf.Comp.      20.  So  if  t!)e  King  prefCntjS  in  Right  of  his  Ward,  though  the  Ward 

iTdc?;  21  lias  no  Right,  tljis  iiuirpation  tot  tljc  UBam  is  nundcnt  \3xzki\t' 
cites  s  c  -  n^fiit  for  tljc  i^ing,  if  it  becomcgi  lioiD  ounng  ii-ioniise,  am  foe  tije 
Tne  King    Dcir  aftct*  42  c.  3,  4-  Contia  21  g.  4-  9-  b,  ais  to  tije  mu 

brought 

(^u.tre  Imped't,  g^d  counted  of  a  Prefentation  of  J.  .?.  whow.isfeifedin  Fee  8cc.  and  of  z  others  inhimfelfhy 
Ihel'f  ardcj  the  Hetr  of  the  f aid  J.  S.  aiid  that  the  Churcii  is  now  void,  and  it  belongs  to  him  to  prtfent, 
and  the  Defendant  dillurbed  him.  Caund.  ^-AA,  the  Clerk  alleged  h)- the  Ki>;g   to  be  inju'tuted&zc.  hy   the  faid 

'^  ' ■      '  " '  ~    "        ■•    leef,.,^  („  be  a  guod  Plea;  For  the  2 

inn  norto  the  Heir,   without  alleginp; 

-       -     -  -,     i  Keoftor  of  the  Aneeftor  of  the  Heir, 

Et  adjornatur.  Br.  (^uare  Impedlt    pi.  145.  cites  45  E.  5,4. 

Br  quare  ^  i .  a  PltfcntUlCnt  by  the  Bifliop  as  Patron  td  fuffld'eut  *  lor  the  King 

p^^Ji^^^^  nuiintain  nCiuarc  JnipcUit  totlje  Cijurcij,  inljcntDcCemporaities 

♦Fol.  578.    COmemta  t'OC  rpmiD^Of  tljCEiUS  far  Vacancy  ot  the  Bilhoprick.  50  e, 

pi   42.  cir.-.s 

i'  C — —  V\'atf.Comp  Inc  Svo.  44*?.  cna  22.  cites  S.  C. If  the  Bifhopdies,  and  the  Advowfon  hap- 
pens void  before  his  Death,  the  King  fliall  prelent  unto  the  f^me  by  reason  of  the  Tcmporalties,  and  niat 
the  Bifliop's  E.vetutors,  F.  >«.  B.  55  (R)  cites  S  E.  2.  Prelentment,  10.  59  E.  5.  21. 

\Vatf  Comp.  22.  <a  J3rcrcntmcnt  bv  the  Father  \^  fufficicnt  Ibr  the  Wife  of  the 
^Ac°y.  22.  ^°"  Tenant  in  Dower  tfcOf*  14  Ip»4.  12.  atumttCH,.  and  alfo  for  the 
cues  S.  C?    2d  Baron  in  Right  of  the  Feme.  14  ]^.  4.  12. 

23.  litheeldejl  Son  hy  theyf>y?  Ftv/^rr  prefents,  and  dieth  without  Heir, 
and  atterwards  the  Church  become  void,  the  yotingcr  by  the  2d  Venter 
iliail  not  prelent,  nor  have  this  Advovvfon;  But  Devon  fiith,  If  a  Man 
hath  t''Xo  Daughters  by  divers  Ve?itors,  and  they  enter  and  make  Partition 
to  prefent  by  Turn,  and  one  dieth  withoutHeir,  the  other  Sifter  ihall  be 
her  Heiri  Quod  fuit  conceliumi  But  after  the  Partition,  if  one  Sifter 
hath  preiented.,  and  afterwards  died  without  Heir,  it  leemeth  her  Sifter 
of  the  Half-blood  Ihall  not  be  Heir  unto  her.  F.  N.  B.  36.  (E) 


g^  .Q  (S.  c)  hi  what  Cliffs  there  jiecds  a  Selfin. 

Watf  Comp.  i^  jif  tlje  King  be  intitled  tO  ait  SllllJOUlfOn  by  Office  i)e  fljall  IjabC 

Inc. Svo.  1  £iuare3!nipemtuiitl)out prefentment,  21  e* 4*      ^^^h  7. 3> 

dtes's'c'^  Contra  17  €,  3- 10.  fa.  1 1. 14.  Jfor  lijcre  a  prcfcntaicnt  is 

fee  (o  c)  ailcffcC  ano  traucrfeo,  anD  tlje  €;ral3crfealIoiueQ  per  Curiam,  uiijcrs 

pi  3-  tlje  l\inr!,"  niaRC0  Citlc  bp  tlje  feifing  bp  ©fncc  of  tbe  PoffeiRon  of 

Prior  Alien,  and  the  Prefentment  alleged  in  the  Procurator  of  the  Prior. 
Watf. Comp.  2.  But  17  e»  3.  14.  b»  2tiSi  faiD  tijat  if  tljc  Efcheator  feifes  an  3D= 
Inc.  bvo.       iJCilUlCn  upon  particular  Command  tO   fCtfC  It^   tlje  l^inff  XVM  IjallC 

442.cap^22.  ^x\i\KZ  3nipccit  Uittljout  allefiing  anp  prefentment  i  jfor  tljc  Seifure 
cites  i>.  c.    j,^.^,^ ^g ^j^j^  u)(tljout  more* 

WatfComp.       J.  !Jf  a  S^an  recovers  in  Writ  of  Right  Of  StitlOluron,  and  has  Ex- 

^"';  rl^n ,,  ecution,  ije  map  Ijaljc  Citiarc  3impenit  tuitljoiit  aUcsp.iu  anv  %im.  -, 
cne^sc-ilortlic  KccoDerp  mmcientip  enoue'o  aftirnisiji^  Eigljt"  14^.2. 
s.p  2  And.  ciuarc  Impentt*  171-  iaipjUOijcti. 

•vo,  jr.  in 

pl-    37- 


Prcfentcition.  42 1 


pi.  ;;.  ill  the  Cafe  ot  Sir  Tlio  Cecil  v.  Hall, A  Man  fhall  have  Quare  Impcdit  uooii  a  Reiaeiy  hy 

Dtf.Tih  in  IFrit  of  RiQ,bt  of  .-lavowjou  without  allc;^ing  any  Prerentment ;   hy  all  the  julHces.  !5i-  i.iiiare 

Impetlic.  pi.  15H.  cites  21  E   4.  I.  ;. And  wlierc  Cilliijuin  is  f'oioiH  a^.iin/l   an  j'uhot    w  R:covcry  of 

Jdvoivfon,  the   King  fhall   have  Quare  Inipcdit  without  alleging  Prelentnicnt ;  Per  Clioke  J.  Br.  Quarc 
Impedit.  pi.  I5i>.  cites  zi  E.  4.  i.  5.  Sec  ((^c)  pi.  4.  &  (R.c)  pi.  5. 

4.  17  €.  V  10.  Jt  igi  falQ  tljat  \\t  ma)'  allege  €>afiu  in  Recovery  warf.comp. 
bj)  i^refcntmcnt  i  ^'^ut  it  (0  not  tr:u  criubie.  J;;-  ^:?tt\ 

5.  31ft()C  King  H-ifes  an  QQlJOWrOIl,  mind)  fiad  been   held  always  in  ,:„V«-',(cr 

proper  Uie,  !jcfl)aU  l)a\)c  ©.uauc  3impcnit  UJitijout  allcgmo;  dxv)  Qtt-  and  2je  3. 
Kntment.  17  e.  3- 10.  b.  .  '5 

6.  STtljC  Kiuii;  IjaSCaUfC  tOprefenc  by  the  Tempriraltlesof  the  Bi- 

fhop,  DC  fijall  not  ija^c  €iuarc  3nipetiJt  uiitljout  allcgino;  S>2trni  bi) 
l^rcfcntmcnt,  17  €.34'^. 

7.  He  who  has  no  Right  fljall  nOt  Ij.lbe  dUarC  I'mpCtlit  Ulitfj'JUt 

lg)refcntmcnt.  17  €»3-4o- 

8.  Il  a  Church  be  void  at  this  Day,  and  the  Patron  prefi/its,  and  is  di-  ^^o  of  an  Jj. 
fturbed,  he  ih.iJl  have  Quare  Impedit,  tho'  he  ha'i  never  Poffe/Jion  before. '^"'^fi" '^p- 
Br.Qiiare  Impedit  pi.  138. cites  21  E.  4.  i.  3.  Per  Catesby.  '  S'-'the'"''* 

Jhh,'  is  dif. 
folved,  ths  Donor  oi  the  hdvowCon  JJiall  have  ^ir.re  Imfedit.  Ibid. 

9.  If  the  King  recovers  by  Qiiare  Impedit,  and  afterwards  ratifies  the  F.N.  B  94, 
Efiate  of  the  hicunibefit  i    yet  at  the  next  Avoidance  the  King  ihall  pre-  '^^'^  '^,  ^^^ 
fent,  becaufe  his  Recovery  and  Judgment  for  him  was  not  executed.     F.  "^^^.^  ?^^^ 
N.  B.  34.  (F)  cites  T.  p.'E.  3.  r.y.,,  s.-e  a 

good  Cafe 
that  accords  herewith.   iS  E.  9.  ;i.    And  fee  9  £.  ?.  20,' 


(T.  c)     What  lliall  be  fufficlent  Selfin.  See(Q.c) 

[i.]   r-jn  HIS  Writ  is  all  in  the  Poffclfion,  antJ  tbC  Prefentment  ISJ 

X  tijc  poffcmon.  21  e*  4*  2* 


(U.  c)     Quare  Impedit.     Seifin.     By 'whom  the  FrefeNt- soc  {R.c) 
iti£nt  hdtiz  fhall  be  fulficient. 

o 

1.  r-ppe  prerentment  OllgljttObC  alleg'H  in  the  Plaintiff,  or  in 
X     him  whole  Eltate  he  has.     21  (£»  4,  2.   b. 
2*  a  PrcrcntlUtnt  in  him  who  grants  tIjC  aDDalUfOn  to  B.  a  Purcha-  King  Ed  6. 

for,  10  fumcicut  m  a  Quare  3impctiit  btougijt  bp  15.  Co,  ^agna^^/--'/^''^/ 
Cijaita.  356.  b.  J^uf"^^^'" 

3*  a  prefentment  alleg'tl  in  the  Grantee  of  the  next  Avoidance  (jj  chuvch  of 
fUfttCient  in  t\jli>  V^XIU    Co*  5*  Countcfs  of  Northmnherkvid.   97^  b>  Cherifav, 

larcel  or  t.'ic 
PoflelTions  of  the  late  Countefs  of  Sarum,  (attainted  of  Treafon  by  Parliament  Anno  ;  I'H  S  )  ;rj  of  Fee, 
and  by  his  Letter.s  Patents  hi  granted  the  next  A'jcidaiice,  Nomination,  Right  of  Patronage,  and  freeDil- 
pofilion  of  the  laid  Cl'.urch  to  A.  and  B.  Conjunttim  &  Divifim,  ita  tit  hem  liceret  eifdem  ad  Ecclejiam 
J?'i7^;n'.?»;  cum  prinio  6c  pro.xime  vacare  contigerit  Prrf/eff/<ri-«  jV.  .)/.  &c.  At  the  next -^voidi:-ice  they 
frefented  the  faid  N.  At-  '■Juho  was  admitted  and  inftituted,  and  afterward.s  the  King  .cranted  the  y-^dvczifon  in 
Fee  to  the  Duke  of  Soinerfel,  and  he  Granted  if  over,  before  his  Jitainder,  to  Sir  JohnTiiynn,  and  the  Chm-eh 
became  void;  and  whether  Sir  John Thynn  might  make  to  himlelf  a  good  Title  in  a  Quare  Impedit  by 
the  Prefentment  aforefaid,  or  not,  without  alleging  a  Prefentment  in  the  King,  or  any  other,  by  whom 
be  claimed  Quare  bene.  D.  105.  b.  pi.  iS  Mich,  i  Ph.  &  M.  Sir  John  Thynn  v  Earl  of  Pembroke. — 
The  Reporter  cites  9H  -.  in  Quare  Impedit,  and  fays,  He  tliinks  that,  by  tlie  better  Opinion,  he  may, 
but  that  it  is  a  Queftion  there,  if  the  Grantee  of  the  Advowfon  in  Fee  ought  to  fhew  the  tirll  Died  of 

Grant  of  the  ne.\'t  Avoidance,  or  not  ? Ibid.  Marg.   pi.  i  S.   lays.    It  is  void,  and  that  it  was  fb  ad- 

judg'd,  Trin.  91  H.  S.  Rot.  100.  in  the  Cafe  of  Sir  Godfrey  F"ulgleam  v.  Sir  William  Hollis.  

See  (R-c"!  pi.  II,  15. 


42  2  Prefentation. 


.  ^  ,  4.  '^  iiTCfCtltniCtlt  HUZf^U  in  a  LeiTee  lor  LiTe  or  Years  JS  fiitfinpnt 

JSa!j  *  ^'f'*^  "^  f'J'^  «^"t»     CO.  5.  97.  b»  CO.  6,  Bred.  57.  D.  9  Ixlzl 

Br.  (^uaic  Impcdit,  pi.  j^S.  cites  21  E.  4.  8.  Per  Clioke.  See  (R.c)pl.  16,  17,  18. 

fmJ?{'n''^,l     ^*  ^^  ^  l^rcftntmcut  aUcs'H  in  a  Tenant  at  Will  10  a  fufFicient 
!rfdr;sft^itlcmtijisi©nt. 

E.  4.  8      Per  Clioke. Sec  (R.  c)  pi  18. 

6.  ®o  a  |i)rcfnttnKnt  nllcg'ti  in  a  C^cnant  in  Dower  or  'QTenantby 

the  Courtefy  10  aifliClCnt  CltlC  in  tW  UBrit.     Co.  5.  97*  In 

7.  @)0  a  13rcQ:ntmcnt  aUcgU  in  '^Tenant  by  Statute  Merchant, 

Staple,  or  Elegit,  10  fUliiCiCnt  ®ltiC  Ul  tijJgi  WUU     CO.  5.  97.  b. 

Watf.  Comp.      8,  -^[j£;  prefcntUlCnt  of  the  Procurator  of  an  Abbot  in  Right  of  the 

Jap'^rdfe^s  ^^^""y  isi  mitmt  ©eifin  m  tijc  abbot.    17  <£.  3*  h*    aomittcD 

s.c'  '        60,  76. 

Watf  Comp.    9,  So  tl3(s  i^rcfcntmcnt  bp  tljc  Pirocuratoc  (Ijall  be  fiilftcient  for 

I11c.8vo.446  ^i^g  King,  he  having  the  PolFeliions  for  Caule  of  VV  ar,  the  Abbot  being  an. 

"^c."'"" Alien.    17 e. 3*  lo,  14.   aomitten 60.   aujutiscti  76. 

Br.c).usie       10.  g)0  a  J'5rercntmcnt  altcg'ti  by  the  Guardian  (ti  cijiljalrp  OC  ^0= 

impedit,pi.  cap  i0  fumcicnt  Citlc  m  t|)i0  i^cit.   Co.  5*  97*  b. 

00,  cites  14 

E.  5.  37. See  (R.  c)  pi.  20. 

For  there  is    j  i,  |^pon  an  itlUenatian  of  an  san^oiufon  in  Mortmain,  (f  the  Lord, 
t"vTnto''aa  ^^  iy?)^''^  It  10  ijciD,  at  tljc  mxt  ^^iomAiKc  bring0  Cluate  Impcmt,  it 

Advowfon,    i!5  ftltflCient  foe  tjini  to  allege  a  IprCfCntnient  in  his  Tenant,  wno  alien'd 
but  to  pre-     it  in  Mortmain.     21  C.  3-  27.6. 

fent,  and  he 

)ia'.  no  rtlier  Remedy  ;  for  he  cannot  have  Writ  of  Right  of  Advowfon,  becaule  he  cannot  allege  Seifiii 

111  hirnfclf  or  his  Ancellor.     Br.  Quare  Impedit,  pi.  70,  cites  S.  C. 

12.  Jf  a  LefTee  for  Life  or  Years  prcfcntd,  antl  IjiS  Clerk  inftituted, 

it  i0  ftifficicnt  Citlc  for  Ijim  in  €luarc  3!nipcDit  at  tijc  ne;ct  auoiuance 
luitljotit  allegino;  anp  [?tefentmcnt  bp  tijc  ILclTor.   Co.  s-  ^pccot  57.  b. 

SlOjUniJ'O.     Co.  5-  Cotmt  North.  98.     ill),  7.  29. 

13-  lif  tf)C  King  be  feifed  of  a  Manor  in  Fee,  to  which  an  9litlOU)fOn  iS 

appenuant,  anD  tlje  C!)urc!)Uoiri!3,ani3  a  stranger  ufurps,  anD  afccttfje 

King  grants  the  Manor  and  Advowfon  in  Fee  to  [.  S.  a0  1)0  UiaP,  bCCaUfC 

tl)e  fain  afurpation  is  not  anpafurpation  to  tlje  Jliino;  a?s  to  tlje  Jnijc^ 
ritance;  anti  after  tlje  Cburctj  iJOiO0,  J.  s.  (ijall  Ijaue  I)i0  duarc  %\v 
peDit,  being  maurbcHi  ano  matte  bis  -SDitle  bp  tije  lad  j^refentment 
of  ttje  JKing,  imtbout  mafeing  mention  of  tlje  iprcfentnient  of  tbe 
€)tranger.    |)obart's  Ecports  1 89. 

14.  If  nvo  Jointenants  be  of  an  Advowfon,  and  the  one  prefents  to 
the  Church,  and  his  Clerk  is  admitted  and  inftituted,  this  in  refpe£l  of 
the  Privity  fhall  not  put  the  other  out  of  Poirelfion,  but  if  that  Jointe- 
nant  who  prefents  dies.^  it  fhall  ferve  lor  a  Title  in  a  Quare  Impedit 
brought  by  a  Survivor.  Co.  Litt.   i86.  b. 


(X.  c)  j4t  ijohat  Time  the  Prefejitnient  being  fhall  be  (\i^' 

ficient. 

Watf.  Comp.  I.  \  prefentment  before  time  of  Memory  i0  not  fufficient,  becatife 
I"/: !'°-  ,  Jl\  It  is  not  triable*  17  C.  3-  ii-  h-  b.  20  e.4-  ^s-  42<J5-3- 
c^^lssc     4-b.  anmittcD. 

2.  But 


Frefentation. 


423 


2.  But  in  fuel)  Cafe  lie  mav  allege  tljC  13refcntmeitt  to  be  within  Watf  Com?. 
Time  of  Memory,  ailD  tljCU  Itl.CipOtI  ,  JfOC  t\)t  tlUlC  13  not  traverf- ^"=- ^^° 
able.     I7ec.3.i4-b,  .^tLsX."' 


(Y.  c^  Qiiare  Inipedit.     ^^^t  inhnt  Time  it  lies. 
[i]    A  fiDtiarc Jnipcuit  lic^aixmnft  tlje  l^mon  after  6  Months 

/\  I'lenarty  Ot  IjISSlnCUmpCllt      iS  €♦  3-  2.  13.  Ij, 

'  2.  ll  aA'L'.ii  grccsLaiid  andAd\;owfoii  iippcndafit  in  7it/7,andthe  'Tenant  in  Bf  Qiuu-e 
Tailfuffcrs  Ufurpaticn  "which  continues  by  6  Months  and  dies,  the  Illbe  in  ^'"f^'*.''-  l'- 
Tail  lliall  not  have  Qiuvre  Impcdit,  nor  Alfifc  of  Darrein  Prefentment  till  ifl^'}!,^,' 
the  next  Avoidance,  hr.  Quaie  Inipedit,  pi.  141.  cites  46  Ali!  4.  per  Finch,  ifthc  Anccf- 

tov  fnfers  a 
Man  to  approprhUe,  and  dies  after  the  6  Afonths  pajf,  and  after  the  Hcii-  fuffers  other  6  Months,  h;   niay 

prefent,  and  m.iy  have  Quare  Impedit  or  D.in-cin  Prefentment.    Ibid.   Br.  Quare  Impcdit,  pi  14?. 

cites  S.  C   For  upon  Appropriation  the  Church  remains  void  toliirawho  has  Title. Where  a 

Man  tn.Jccs  Dilhirbance,  and  the  Dijlurier  approfriutes  the  ^'/dvcivjon,  there  the  Party  may  have  Uuare 
Impcdit  agji'irt  the  twentieth  Abbot  who  is  in  after  the  Appropriation,  a.;d  forty  Y^.irs  a^ji'-  ;  for  all 
thofe  are  only  as  one  and  the  fime  Incumbent,  and  is  no  Pl.narty  which  puts  a  '^ian  from  his  Actio;!, 
Br.  Quare  Impcdit,  pi.  10.  cites  55  H.  6.  11. 

3.  The  Kin^  mav  have  Quare  Impedit  at  any  time  din-ing  the  Lives 
of  the  Patron  and  inciiml'ent,  or  of  the  Incumbent  only,  notvvithiianding 
its  being  atter  the  6  Months;  For  Nullum  Tempus  occurrit  ^Kegi  i 
Quod  Nota.  Br.  Qiiare  Impedit,  pi.  39.  cites  47  E.  3.4. 

4.  Quare  Impedit  by  the  King,  who  counud,  that  T.  held  the  Manor  cj  K''-  D''oit  de 
I),  of  him  in  Capite  with  this  Advowfon  appendant,  and  prefented,  and  af-  ^\^^^°^  P''- 
ter  the  Church  iwided,  and  after  he  aliened  in  A-lcrtmain,  and  the  Bifhop  of  R,  ^|,'jj  ^^^^  'f^^ 
prefented,  and  his  Clerk  admttted,  injfttuted  and  induiled,  and  the  Eifiop  mitted  tiisrc 
died,  and  the  King  within  the  Tear  brought  J^uare  Impedit  aj^ainfr  the  In-  "f  a  covmcn 
cimbent  alone,  and  well  per  Judicium  ;  For  he  may  plead  agninli:  the  King  ^^■/''•-  '^']^. 
by  the  Statute,  and  alfo  the  Biihop,  v\  ho  now  is,  was  no  Di  Ihirber,  fo  that  \°-^^^Ye:^'^af- 
tfte  A6tion  does  not  lie  againil  him,  and  it  lies  well  within   the  Y t-xv  tir  the  JUe- 
though  the  other  has  gained  Poflelhonby  Frefentation,  and  this  becaufe  ''atio>i  in 
the  King  in  this  Cafe  cannot  have  Writ  of  Right  becaufe  he  has  no  Right,  ■^!^^S'""''."'> 
but  only  a  Title,  by  reafou  of  Alienation  in  Mortmain,  io  that  if  he  comes  \vit"hm"°e 
within  the  Year  it  fufBces.  Br.  Quare  Impcdit,  pi.  40.  cites  47  E.  3.  11.  year  fhall 

not  grieve 
him  And  fo  it  fcems  tb.nt  the  Kinj;  by  Ufurpation  mt  a'joided  by  any  Jclicn  may  be  out  of  Poifcfnon  as 
well  as  a  common  Pcrfon,  and  \'o  is  the  belt  Opinion  there  ;  a!'.d  therefore  it  Items  that  the  one  Ufur- 
pation  within  the  Vcar  c;mrot  be  an  Interruption,  and  a  Defcent  cjnnot  toll  the  Kntry  ct  the  Lord 
w ho  enters  for  Mortmain  ;  For  he  hasnoRijjht  of  Entry,  but  only  a  Tirle  of  Enrry,  which  may  be 
taken  at  any  Time  within  tlie  Year.  Br.  (^uarc  Impedit,  pi  40  cites  47  £.  3.  11. 

Quare  Im.pcdir  of  an  Advowlon  in  grofs,  the  Plaintiff  caaited,  that  J.  N.  was  tlerecf  ffifed  and  prefeyit- 
td  &.C.  and  held  tie  .^dw.ifon  of  him  ;  avd  after  alrer.ed  to  tl't  Deav  arid  Ch.-pier  of  H.  by  ivhich  he  pre~ 
fented  by  the  Statute  of  AJortni.iin,  and  it  is  yet  within  the  Ycir,  and  the  Defendant  f.tid,  that  the  Cinch 
lUasfiiUhy  6  .Uwths  hefcre  the  H  rit  pitrchafed  of  lis  civil  PreferilijieKt  ;  judgment  of  the  Writ  ;  and  be- 
caufe it  is  half  a  Year  after  the  Alienation,  therefore  the  Writ  lies  well,  per  Cur.  iir.  Qiiare  impedit, 
pi.  ;o.  cites  21  £.  3.  27.- Br.  Mortmain,  pi.  13.  cites  S.  C. 

5.  Quare  Impedit  by  R.  H.  againji  5.  and  three  of  them  brought  ^la-  Quare  Impe- 
re  Impedit  agatnjl  the  Plaintiff  of  younger  Date,  by  which  R.  H.  prayed,  '',"i^7v--l,  ^' 
that  all  may  be  determined  upon  his  Writ  of  elder  Date,  and  that  the  other  ^,^..ji;i)i '3  'g 
may  be  dilcontinued  or  nonfuited,  and  then  it  was  not  much  denied ;  but  and  others, 
afterwards,  fol.  56.  it  was  agreed,  that  if  they  cannot  agree  to  dilcoutinue  tl'c  Plaintiff? 
the  laft  Writ  that  then  each  fliall  anfwer  the  other  in  both  Writs  i '^"""'w-' """^ 
quod  nota.    Br.  Quare  Impedit,  pi.  153.  cites  11  H.  6.  23  &  56.  d.mts.mfvver- 

c.f,  and  fo 
K)  Demurrer  ;  and  after  the  fame  Defendants /^z;^,  that  they  had  another  ^iiare  Impedit   atr.ii/fl  ihi  Plain- 
tiffs, and  prt-ird  that  they  nay  anftver  thereto  ;  and  per  Brown,  they  JhaU  proceed  upon  the  ^are   Imled  t  of 
the  f'Jl  Dale,  and  tl.is  jbr.U  n:ake  r.ii  End  of  all;  for  ctlierwilc  there  may  be  Inconvenience;  foricmiy 

hi 


A  2  A  Prefentation. 


be  that  ths  one  m.nv  be  fo'ind  for  the  Pbintirt's,  and  the  other  with  the  Defendants  where  it  is  all  of 
one  and  the  (ame  Prefcntati^in  to  one  and  the  fame  Church  ;  and  Kewton  :ic  cordin^ly,  :ind  ro  Inconve- 
nience to  any  Party  where  they  plead  upon  the  Writ  of  elder  Date.     Br.  (^uave    Jmpedit,  pi.    -<;.  cites 

10  H  6.  rtS. -Fir  where  ,V.  hrhi"!  ^<are  fmpedit  ag.ihfl  B.  a?id  l:s    Imimiher.t,  and  K.   e  contra  a- 

gainft  A  and  they  plead  upon  tlie  firft  Writ,  and  the  other  let  afide,  ther;  if  tie  ^itle  he  found fcr 
A.  he  ll'.ill  have  if^ril  to  the  Btpop  to  mflitiite  his  Clerk,  and  to  oufl  the  other  if  this  Recovery  be  'U.ithin  tin 
6'.]fo)ilhs,  and  no  Mifchief  to  the  Clerii  of  the  Defendant  ;  becaulc  he  was  named  in  the  Writ,  and 
may  have  Anfwer,  and  if  the  Clerk  of  A- 'was  in  at  the 'Time  of  the  Recovery  he  needs  no  H  rit  tothe  Bijlop, 
hut  f^iall  reccvcr  Dan'azes  for  the  Difliirhance,  and  if  B.  recovers  apainji  A.  there  the  Clerk  of  A.  Jhall 
be  oiilfed  if  he  was  in  if  his  oivti  Suit,  Jiendinff  the  If 'rit  ;  but  if  he  was  in  at  the  time  of  the  Writ  pur- 
chafed,  he  fin  11  'ie  ouifed  ;  For  it  was  the  Folly  of  the  Defendant  that  he  had  not  pleaded  that  the 
Church  was  full  of  the  Prefentation  of  A.  the  Day  of  the  Writ.  Ibid. ;?«/ bccaufe  the  Plain- 
tiff did  twf  aver  that  the  fecond  JJ'rit  Kuas  of  the  fame  Prefentation  of  ■li-hiih  he  brought  bis  Writ,  therefore 
each  was  awarded  to  anfdier   tothe   other's  Aff  ion.     Ibid. 

6.  In  a  Quare  Impedit  for  the  King ;  though  thr  Dcfetidant  has  a  Writ 

to  the  Bipop  agaitiji  the  King.,  the  King   may  have  a  ncuj  ^tiare  Impedit 

againft  him  of  the  faid  Avoidance,  and  tnake  other  •Title.  F.  N.  B.  35.  (P) 

Note,^  in  >j_  \{  the  Difinrber  pnfcat  fxo  or  three  times  'vuithin  the  6  Months.^  yet  a 

^u'^'p^^c^       Quare  Impedit  lies  againft  the  Difturber  upon  the  fiift  Prelentment,  if 

Lre  to'the'      he  pufchafe  the  Writ  within  the  6  Months.     F.  N.  B.  35'.  (Q.) 

Prior,  and 

yet  the  Freehold  is  in  the  Abbot   F.  N.  B.  36.  (Q_)  in  the  new  Notes  there  (a)  cites  20  E.  ^.Non-abilityJ 

9.  14.  H.  4.  10.  adjudged. 

Forthein-  g.  The  rightful  Patron  may  have  a  Quare  Impedit  after  the  6  Months 
l'd"l"  ^""^  againft  the  Incumbent  of  an  Ufurper  that  is  in  by  Sinic}:)',  and  in  fuch 
thereupon      Cafe  Plenarcy  for  6  Months  is  no  Plea.  Per  Cur.  Noy.  25.  in  Cafe  of 

are  merely       Winchcomb  V.    Pullcfton. 

void,  and   lb 

the  Church  was  never  full  of  the   Perfon  of  fuch  Clerk.  Watf  Comp.  Inc.  159.  cites  Hob.  16;. 

9.  I  Adar.  I  Pari.  2  Sejf.cap.  5.  enafts,  that  that  the  Statute  of  32  /f. 
8.  cap.  2.  (of  Limitations) /?w//;7f'/fx^fWfo  a  Writ  of  Right  of  Advowfon^ 
3iiare  Ivipcdtt,  Affife  oj  Darrein  Prefefitment,  Jure  Patroiiattis  ^c. 


(Y.  c.  a)  Quare  Impedit.     iVljere  it  (hall  be  brought. 

5;  P  F  N     ^-  r^U ARE  Impedit  hy  the  King  againji  the  Ri (hop   of  Sarum    o^  the 
B  •'•;  (C)  in       ^  Prebendary  of  Horton,  and  counted  of  a  Voidaiicc  by  reafon  of  the 
the"  Notes      'femporalttes  of  the  Bipop  being  in  the  Hands   of  the  King,  and  that  the 
there  (e)      Prebend  voiding,  the  King  prefented,  and   be  difturbed,  and  counted 
that  fuch  a  Bipop  prefented  fuch  aPrebendarj  -who  died,  and  fo  it  is  void  &c. 
and  it  was  brought  in  Wiltpire  -where  the  Cathedral  Church  was,  and  not  in 
the  County  of  S  where  the  Body   of  the  Prebend,  viz.  the   Manor  of  Hor- 
ton   was,  vi'hich  made  the  entire  Prebend,  and  yet  the  Writ  awarded 

good;  Quod  Nota.  Br.  Quare  Impedit,  pi.    68.  cites  21  E.  3.  50. > 

But  Fitzh.  Brief  325.  Anno  15  E.  3.  is  contra,  but  ic  is  better  here,  as 
it  feems  ;  For  Quare  Impedit  lies  where  the  Church  is. 
♦  (luare  Im-      2.  Quare  Impedit  does  not  lie  in  Guernfy,  nor  in  *  Wales,  nor  in  other 
pedit  was      Royal  Franchifes,  but  it  was  admitted,  that  Quare  Impedit  lies  in  Durham, 

T&::yof^-  Qi'-'-^  ^"^p^'ii^^  pi-  '^"- '''''' "  "•  6-  3- 

anAdlc-lfon  h  Wales,  and  lay  well.     Br.  Quare  Impedit,  pi.  \6.  cites  3  5  H.  (J.  50. S.  P.  that  it 

liiall  bebrout'ht  in  the  County  adjoining  ;  per  Fortefcuc.  Br.  Quare  Impedit,  pi.  109.  cites  ^6  H.(j. 
s".  And  Brook  favs,  the  Reafon  is  faid  elfe  where  to  be  in  as  much  as  the  Lords  there  ha^e  no  Autho- 
rity to  write  tothe  Bijhop. S.  P.  Co  Litt.  154.  b.  Neither  fhall  Conufance  be  granted  in  a  Quare 

Impedit,  becaufe  tlie  Inferior  Court  cannot  write  to  the  Bifhop. 

Quare'  Impedit  of  the  Archdeaconry  of  St   D.  in  Wales  was  brought  in  the  County  of  Hereford   as  in  the 
County  next  adjoining  to  the  Benefice  ;  Quod  Nota  ;  and  the  King  made  Title  iy  reafon  of  the  PojJ'efj'ions  of 

the 


Prefentation. 


425 


the  Bijhp  of  St.  D.  hemg  hi  his  H,rvds,  and  fo  fee  that  the  Bifhop  was  Patron  of  tlie  Archdcacoury.  Br 
l^aic  Impeftit,  pi.  100.  cites  24  E.  5.  42. 

3.  The  King  may  fue  this  and  every  other  \\'rit  in  what  Court  he 
pleufe.     F.  N.  B.  32.  (E.) 


Watf  Comp. 


(Z.  c)   Quare  Impedit.     Hoasu  it  iliall  be.      In  what  Ca- 
fes it  Ihall  be  Pra,jait(ire. 

t.  Tif  tI>P  Sheriff  will  not  put  the  Patentee  Of  tljC  Ulug  of  a  free  Chapel  Hc'l^o"^^- 

A  in  pivfeifion,  t\)t  J^tUuitcc  fljall  Ija\)e  square  Iimpcoit  qiioD  pcr=  5-^ 5.  cap!  :io. 
mittiic  itiium  prsefcnttire.  nip*  +  1 1-  In  cites s.  c  - 

2.  If  aSi5an  diiturbs  another  to  collate  to  a  13cncficc,  pet  tijc  r^-'^^o 
jDcit  fljaJl  u  li'oon  If  It  i3c  i^ci-fciitarc    17  c»  3*  64,  aniunijcn.     cj^o^^- 

S  p.  JnA  hi  hii  DecUr.itio>i  I.epall  jbca  the  fpccial  Matter.     Br.  Quarc  Lnpcdit,  pi.   1 56.  cites  F.  N.  iJ 
fo!.  52SC  35. 

• 

3.  In  Q^iare  Impedit  the  Plaintiff  made  Title,  becaufe  Fhie  -was  k'vied  H'"  Quare 
kt-xeen  J.  N.  and  the  Jibot  of  E.  of  the  Advowfoii^    and  the  fame  yihbot  Imp^i't,  p'-. 
granted  by  the  lame  Fine,  that  J.  N'.  and  his  Heirs  at  every  yhoidancs  \i\  ''/f *  '■* 

jhal!  name  to  him  his  Clerky  and  he  jhali  frcfent  htm  over  to  the  Bi/hop,  and  s.  C.'— ^ 

a/Ie^'d  Sei/in  accordingly,  and  that  the  Church  is  void,  and  he  named  a  S  P.  F.N.B. 
CJerk  to  the  *  Abbot,  and  he  would  not  prefent  him  to  the  Bilhop,  and  V'''^\\^' 
brought   Quare  Impedit,  which  was  Quod  permittat  iplum  Nominate  5>,ai[  be    "^ 
Clencum  &c.    where  it  Ihould  be  Prstlentare  Clericam  j  and  therefore  (^uod  per- 
the  Writ  was  abated.     Br.  Quarclmpedit,  pi.  56.  cites  +4  H.  4.  10.  11.  mittat  ipfum 

prajfcntai-c 

&c.  and  in  his  :^  Count  he  fliall  fet  forth  the  fpccial  Matter,  and  ir  fliall  be  cood.  F.  N.  B.  5-,  (B) 

Sec  ac:ordingIy  i  H.  5.   i,  2     4E  5   69.  21  H.  6.17.3.  and  he  fhall   have  a  Writ  to  the  BiiTiop  to  .id- 
mif  tIjc  Preiontee  whom  lie  has  named  to  another;  whither  tlie  Writ  he  broa;;ht  :ig:iinft  him  who   had 
the  Pielentation  oi' a«ainft  a  Stranger,  yet  fee  24  E  5    f^uare  Imp    2-.  and  2  R.  5.    Qu.irc   Imn.    102. 
that  it  lies  not  for  him  who  h.isonly  the  Nomin  ition.     F.  N    B  ;;.  (F)  in  the  new  Notes  there,  (e) 
4-.  F.  N.  B.  5;  [B)  in  thencw  Notes  there  i^d)  f.iys  See  accordingly  22  E  4.  22.  a.  14  E.  4.  2.  b  a.ui  14 

H  4.  I T    the  V^'rit  Qjod  permittat  nominarc  was  abated  by  AwarJ  in  the  like  Cafe. *  Ori'.  ii 

(Eve'.i]ue  )■ f  It  fhould  be  14. 

4.  If  a  Bijhop  be  dijliirh'd  to  prefent  where  he  ought  to  make  Collation,  F  N.  'B.  ^3. 

the  Writ  Ihall  be  Quod   permittat  ipfum  prjefentare  (Ike.    and  he  IhaiH^^  '?  ^''^ 
1       /"■    M     •  r^    VT    13  /-i\  N  new  Notes 

count  upon  the  Collation.     r.N.  E.  33.  (D.)  there.(a) 

ciies  16  f .  -; 
Brief  660.  Raft  Entr.  501.  i;  £  ;  64. 

5.  The  King  fljall  have  a  Quare  Impedit  of  the  Sitb-Dcaconry  of  }brk^ 
■which  voided  when  the  'jhnpora!ties  of  the  Archbilbopruk  ucie  in  the 
King's  Hands-,  and  the  V\  rit  ihall  be  Quod  permittat  eum  praelentare  ; 
and  yet  the  King  ihall  give  this  Sub-Deaconry  by  his  Letters  Patents. 
F.  xN.  B.  34.  (G.) 


(A.  d)     Quare  Impedit,     How   it    fhall   be.     ///  ^vchat 
Cajcs  the  Writ  fhall  be  u'ld  Ecckfiam. 

wTiT  n  ^uarc  Jmpcnit  be  brougOt  of  a  Chapei,  tfjc  ilBrit  (Ijall  not  ^nd  becnife 
X  be  Quod  pcnmttat  pr^fentarc  an  ecclcfiam,  Init  ad  Capci-  ^''^'  ^,V" 

lam.     8  Ip.  6.  37.  curia.  ^:^t^^ 

Opinion  of 

the  Court  wa.s  tliat  tlie  Writ  fliould  abate     Br.  Quare  Impedit,  pi.;-,  cites  S.  C- If  the  Kirg 

be  diflurbed  to  collate  by  his  Letters  Patent  ntno  his  Free  Chapel,  he  ihall  have  a  (^ar<;  Impedit,  and 
the  V\rr.  flull  be  (.^'.cd'per.n-.ittat  prx-fenta;-.-  &C.  ad  Prxbcndam  in  iiis  Free  Chapel  &c.     F.  N.  B.  3;. 

5  P  '  U.^ 


4.26  Prefcntation. 


<E  )- F.  N.  B.  5^.  (E)  i'l  the  new  Notes  there  (b)  cites  i6  E.  3.  Brief  660. And  13  H.  4. 

BriL-t  6-0    wMcrc  Ecclciiu  fliall  be  iinciiricd  a  Parochial  Church. 

Br.  nu,,-c  2.  3if  ti)c  €lcrfe  of  a  Donative  iic  ctffurb'O,  tljZ  Piitroit  \m^  Ijalic  a 
iTciuJ '  Otiarclnipetiit  QuoQ  pcnmttat  iplum  prafcntareaD  ecclefiani  sjCv 

FN  b"'-  aUD  tiCCiarC  tljC  ipcviul  Ahiiur  in  his  Declaration.  CU.  Litt.  34^4 
&  33.     '      CItCgi   0.    I  3aC.  15.  E.  l\Ct.    60 u   bCtUlCeil   Fan-chud  and  G',yrr,   m 

'^rcfpafst.   Ecfoinen  foe  tijc  lUctorp  i3arocl}ial  Donatilic  of  %u 
louncn  in  Cai-muafl. 

PerChoVc  3    \\  hcTC  2  or  3  Piitroiis  are  fcis'd  of  an  Advowfon  toprcftut  lyT'iir/is, 

^,^^-.J  '"  the  Qiia.  Imp.  ihail  be  Prejlinarc  ad  Ecckjiam  ;  lor  ic  is  but  one  Church. 
P^l'tZii'^t.A  ^^'-  ^'^'^^'^  tlie  Church  is  divided,  and  there  are  2  feverai  Patrons  ancl  2 
tLv [t.cu'm-  ffV'ral  lf/ctii/:h'i!ts  vi' the  fliine  Church,  lb  that  a  diliinft  Part  ol  the 
LeiUi,  (aj  Chmch  and  Tithes  belong  to  each,  in  luch  Cale  the  Quare  Impedit  Ihall 
hL-ic)  it  ti-  [jg  Pi ieientare  ad  Mudutatmi  ^c.  hcclejiie.  So  in  Cale  of  a  Conjotidatton  of 
Pun'o"i.<;^be  ^  ''^^  3  Churclies  into  one,  and  the  Patrons  now  prelent  by  Turns,  lb  as 
difiu'-b'ii,  he  one  Incumbent  poilelles  the  whole,  the  Prefentation  lliail  be  Ad  Ecclc- 
mav  have      ham.     loKtp.  136.  Trin.  lojac.  C.  B.  Smith's  Cafg. 

Writ  citluT 

PrJcfentarc  al  Medietatcm  E.cL-fii,  or  Prsfentare  ad  Ecckftam ;  for  Quoad  him  it  is  a  Church.     15 

Rep.  156.  b.  in  tmith's  Cafe. 

4.  In  Qiiare  Imped  it  lor  the  Vicarage  of  B.  in  Devon,  it  was  obje£led 
upon  a  DcHiurrer,  That  there  is  a  Variance  between  the  Writ  and  the 
Count,  the  Urit  being  .&/iod  pertnittat  emu  pritjtHtare  ad  Vtcanam  Ecckfta; 
de  B.  and  the  Conclulion  of  the  Dcclara'.wn  is  Quod  ad  ipfum  £.  (the 
Plaintilt  )  ad  Exckftam  pricdtdamjic  vacauti.m  isc  pcrtinct  pr.tjtiitare  &:c. 
So  that  the  Writ  is  Quod  permittat  &c.  pra^lencare  ad  Vicariam,  and 
the  Declaration  is  Ad  ixcleiiam  pertinet  prslentare.  But  to  this  it  was 
anlwcred,  and  fo  relblved  per  Cur.  That  Oiiuiis  Vicaria  tjl  EccUJia^  and 
that  it  is  lo  held  txpielsly  in  leveral  Bocks,  and  thtrclore  no  Variance 
in  Subftance  but  in  form  only  i  belides,  this  was  not  ihewn  for  Caufe  of 
Demurrer,  lor  the  Caule  fhevvn  was  Want  of  Prolert,  and  the  Precedents 
are  as  in  this  Cale;  and  fo  Judgment  for  the  Plaintilt".  Wheieupon  De- 
fendants brought  a  Writ  ot  Error,  and  a  Bill  in  Chancery  tScc.  Carth. 
315.  3r6.  Trm.  6  VV^.  &  M.  Reynell  v.  Long. 

5  The  Aft  of  22  Car.  1.  for  Rebuilding  London^  enalfed  that  the  Pariflses 
0/  St.  Andrew  Wardrobe  and  St.  Anne  Black-Fryersy,6o/.'W  Zt  united,  and 
tliat  thejirfi  Prefentation  f:  all  be  by  the  Patron  of  the  (Church)  whoje  En- 
doivnient  IS  of  the  greatcfl  Value.  Now  the  Truth  was,  that  St.  Anns 
PJaik- Friers  \i.'as  a  Vicarage.  And  upon  a  Quare  Impedit  brought  ic  was 
among  other  Things  ruled  by  the  Court,  That  tho'  Eccleiia  and  Vicaria 
are  dirierenc  Things,  yet  ic  appearing  upon  the  whole  Record  that  the 
Re5ory  of  Black-Frfers  is  Apprupriatey  the  Vicarage  of  Black-Fryers  Ihall 
beaChurcu  within  the  Intent  of  the  Act.  3  Lev.  435.  436.  Hill.  7  W. 
3.  in  C.  B.  Reynoldlbn  &l  al.  v.  Biihop  of  London  and  Blake. 

6.  I'here  needs  not  the  Name  of  the  Saint,  as  Ad  EccleJiam  de  San£lt 
A/,  de  W.  except  there  be  more  Churches  in  the  fame  Vill.  F.  N.  B. 
32.  (E)  in  tlie  new  Notes  there,  cites  9  Eliz.  Dyer  259.  13  H.  4.  872. 
*  Ardnore,  7.  It  a  Man  be  dillurb'd  to  prefent  unto  a  Parfonage,  then  the  U'rit 
f  uch  ^A  rit  jj,.^[[  \^^  #  Priecipe  &c.  Quod  permittat  ipfum  prelentare  Sic.  ad  Eiclefkini 
t^mraon^  &c.  for  the  \\  ord  p]cclelia  is  always  intended  a  Parfonage.  And  if  it  be  a 
Law.  Vicarage,  then  the  VV  rit  is  Quod  permittat  ipfum  praefentare  adVicanam. 

F.N.  B.  52.  And  if  it  be  a  Prebend,  then  Ad Prehendam,  and  if  a  Chapel  Ad  CapeU 
(H)  in  rhe    y^,,,^     ^j^^^  ^q  \-^q  oueht  to  t  name  the  Advowlbn  as  it  is  &c.    F.  N.  B.  32. 

new  Notes       ^rr  <      •         n  u    >:  •   '  - 

there.  Cal         ("•)    CIt£S  8  H.  6.  22. 

cites  14  H.  "  .      .'  .  • 

3.  Qira'-e  Iwpedit  1S3.  adCanellam.    zH.  5.  Grants  S9.  ad  Vicariam. f  In  a  Quare  Impedit  Pr^fen-- 

t.Hre  ad  EcLleiiam,  it  is  a  f^ood  Pleu  to  the  W  rit  that  it  is  but  a  Chapel,  for  j-  Ecclcfia  fliall  be  intended  a 
Parifn-Church.  F.  N.  B.  52.  (H  )  in  the  new  Notes  there  (b)  cites  5  E.  5.  60.  22  E  5.  2  a.  12.  a.  S 
H. 6  32.3  V-3-  I5H.4.  brief  8-0 — :}:  J:.  P.  in  F.  N,  B  j^E  in  the  new  Notes  there  (b)  ciccs  i5 
E.  ^  Brief  660.  and  1  ^  H.  4  Brief  8-0.  '  '         ,    , 

■  8   There 


'    —  ■  '        «    I  ■     ■^— —        II   .    .  -       I       I        I.   *  «  I  ii  I.I  -■      ■«      ■  I   !■■     ■  ■mil    ..  ,  I  I       I        ,i,,,M -fc.,        _. 

Prefcntation.  4.27 


8.  There  is  another  Form  ofWricQiiod  permitt.it  ipfum  prdefcntare  (t;;^ 
F.cclcfhim  Do}]!!is  Santii  Martini  Briltol.  quse  vacat.  &;c.  and  lb  ot'  an 
Holpital  and  the  like.     F.  N.  B.  33.  (G.)  cites  Lib.  Entr.  506. 


(B.  d)     Quare  Impedit.     Hg'-jo  it  lliall  bs  bro/ight. 

i«     A   tIDHIC  map  I1C  brOlipllt  Quod  permittat  ipfum  pnpfentare  ad 
£\,^  Cancariam,  bltljOUt  UlVntQ;  Perpetuani  CTaUtariaUU      17  C* 

*  2.  So  IjC  UCC0  not  fap  an  pCtpCtlUim#Vicariam.     17  (£.  3-   12. 

3.  A  Quare  Impedit  iieth  oi  a  Priory,  or  of  an  Abbey,  and  the  Writ 
fliall  be  ^ijtd  pernnttat  ipCma.  prefcntare  ad  Prwratum  fcti  Abhatimn  &.c. 
F.  N.  B.  33.  (F.)  cites  the  Book  ot" Entries  59.  and  i8  E.  3.  Quare  Im- 
pedit 151.  accordi  gly. 


(B.  d,  2)    Qiiars  Impedit  in  general.    At  Common  La-w  or 

ly  Statute, 

X  r^U  A  RE  Iinpedit  and  Darrein  Ptefsntment complai/is of  Chattk  only, 
^-  viz..  the  prelent  Avoidance.     Jenk.  13.  pi.  23. 

2.  Quare  Impedit  ttw.v  by  the  Coviiiioi:  Laiv^  but  it  was  only  t'pon  a  Pre- 
fentment,  viz.  Induction  i  but  if  the  Incumbent  was  to  be  inducted,  then 
a-  the  Common  Law  a  ^Vrit  of  Right  of  Alvowfon  only  lies.  Per  Pop- 
ham.      Brownl.  166.  Trin.  4  jac.  the  King  v.  Matthews. 

3.  In  Qiiare  Impedit  both  Philiitiff  and  Dfeuda/it  arc  Afiors  one  againft 
another,  and  therefore  the  Detendant  may  have  a  Writ  to  the  Bilhop  as 
well  as  the  Plaintitf,  which  he  can't  have  without  a  Title  appearing  to 
the  Court.     Vaugh.  58.  Trin.   21  Car.  2.  the  King  v.  Jervis  &  al. 

4.  If  the  Church  is  fidl  of  the  Delendant  by  liiftitution^  then  it  is  a 
Quare  Impedit  within  the  Statute  ;  othervvife  it  is  a  Quare  Impedit  ac 
Common  Law.     Skin.  25.  Mich.  33  Car.  2.  C.  B.  Holt  v.  Holland. 


(B.  d.  3)    Qiiarc  Impedit.    ///  cc/.v;/  Cnfis  it  I'lcs. 

F  the  Advowf<)n  be  in  Crofs,  the  'Tenant  in  Tail  may  Iwve  Quare 
Impedit.     Br.  Quare  Impedit,  pi.  31.  cites  43  E.  3.  24. 

2.  ^^'^here  I  grant  one  Part  of  an  Advowfon  to  S.  and  another  to  W.  and 
the  third  to  F.  refer-vmg  the  jotrrth  Avoidance  to  m)'  felf,  in  this  Cafe 
Quare  Impedit  does  not  lie;  tor  the  Advowfon  is  one  entire  Thing,  and 
we  cannot  join  in  Action  ;  and  therefore,  if  we  cannot  agree  in  Prcfent- 
ment,  the  Biu.op  fliaJl  have  it  by  Lapie  i  but  of  Coparceners,  if  they 
cannot  agree,  the  Eldcft  Ihall  have  the  Prekntment,  Br.  Quare  Impedit, 
pi.  10.  cites  33  H.  6.   1 1. 

3.  Note  zvhen  there  is  no  Patron,  As  ivherc  the  Prior  is  Priejl^  audits  ad- 
mitted to  his  cxn  Benefice  ;  Or  where  ;;?j'  Advoissfon  is  alien'' d  in  Mortmain^ 
and  appropriated  \.o  ■xK^\\^^\o\x%\\o\^{et^  and  rhc  likci  in  thofe  Caies,  1 
may  have  Quare  Impedit,  and  the  PJcnarry  by  6  Months  is  no  Plea.  Br. 
Plenarty,  pi.  10.  cites  14  H.  8. 

4,.  Collattoit 


428  Prefentation. 


4.  Col.dtic?!  by  6  Months  docs  not  toll  .^uarc  Impetiit^  where  the  Plenarty 
is  by  ibch  CuHatioii,  lor  the  Statute  ol  \Vcitniinller  2d.  requires  I'rtilcu- 
tation  in  this  Cale.      Jenk.  281.  pi.  7. 

5.  A  Man  can't  ha\c  Q^uare  Impedit  and  Darrein  Prcfcnt;itcnt  ira,  bu>: 
on  the  Return  of  the  Q^uare  Impeditj  the  Darrein  Prelcntment  brought 
after  Ihall  abate.  But  Per  Hobart,  it'  he  Iwd  brought  ancther  ^tare 
/«//)tY//r  it  had  been  well ;  and  fo  it  was  received  in  the  Earl  of  Q^CD' 
fOrll'sCafe.  And  Per  Hutton,  Vv.  2,  5,  proves  that  he  ihall  not  have  both. 
Noy  18.  Mich.  15  Jac.  C.  B.  the  Village  of  St.  Andrew's  v.  the  Arch- 
billiop  ol  York  and  the  Countels  of  Shreu  sbury. 

6.  li^  A.  a  Spiritual  Man  has  the  Prefentation^  and  B.  a  Layman  the  Ne- 
minatioM,  if  B.  nominates  to  J.  the  Spiritual  Man,  C.  a  Clerk  to  he  prefented 
over^  and  A.  dothfu  accordingly,  il  before  Cs  jidmifpon  B.  noiuinjtes  ano- 
ther  to  be  likewiie  prefentcd,\vi|iich^'f. /t,///^/'/.?  to  do,becaufe^i  hath  pre- 
fcnted  one  already  by  his  Nomination  i  B.  Ihail  not  maintain  any  Quare 
Impedit  againlt  the  Prefentor  tor  fuch  Retulali  becaufe  A.  is  Patron,  and 
being  a  Spiritual  Man  he  cannot  change  his  Pretentation  already  made. 
Dod.  of  Ad\^.  65,  66.  Lect.  12.  , 


*rjVin\hh'     (S-  ^-  4)     Quare  Impedit.     *  Procefs  and  Proceed} ugs. 

AAion  are  

Sumwo.syJt- I.  52/7.3.  T7NACTS,  That  in  Jffifes  of  Darrein  Prefentment, 
t.iclme!it,and  ^^^_  j2.  jp  ^  and  in  a  Plea  of  ^ttarc  Impedit,  of  Churches  vacant, 
Dijlyejs  fe-  ,  Days  (hall  he  ''I'jen.  from  15  to  15,  or  from  3  IVeeks  to  3  SVeeeks,  as  tie 
xhc  Statute  of  Pl'^ce  fball  happen  to  he  near  or  jar. 

Marlhridll  I  5. 

The  Sheriff  iiiufl  fitwnton  the  Dffend.xnt  hy  good  Stimmoners,  and  return  their  Names  upon  the  Original  ;  The 
ff'rits  ■AYcreturHithle  from  15  D.iys  to  15  Days  -/TUcSumnions  onxhc  fir[\\\tit  m.iy  hi  m:\A<:  at  the  Chunh - 
Door  or  to  tie  Perfoi  of  the  Defendant  ;  and  altho'  a  Kthilhc  rcliirried  upon  the  firlt  Summons,  ^-Jltaef- 
ment'ar.d  Dijlr-'fs,  yet  if  the  D'fevdaiit  make  Default  upon  the  Diltrels,  a  If'rit  Ihall  go  U  the  Bijhi}  OQ 
the  Title  made  by  the  Plaintiff.     Brownl.  i  58. See  the  Cafe  of  V\  illiams  v.  Blower  &  c  contra. 

This  Act  extendeth  not  to  a  Writ  of  Qiiarc  non  admifit  nor  to  an  Incumbravit,  but  only  to  the  AfTife 
of  D.in-ein  Prefertment  and  Q^aarc  Impedit,  and  the  Reafon  thereof  is  for  fear  of  the  Lapfe'.  2  Inft.  124. 

t  By  Alfent  of  Parties  a  lonj;cr  Day  m.iy  be  given  than  is  prefcribed  by  this  Att,  but  that  AlTont  muH 
be  entcr'd  of  Record.  And  it  is  to  be  obferved.  That  by  the  Common  Law  great  Delays  be  difallow'd 
in  four  Kinds  of  Actions  viz..  In  all  Writs  of  Dower,  Quarc  Impedit,  Affile  of  Darrein  Preientmenr, 
and  AflTile  of  Novel  Dillcifin,  and  therefore  no  Protection  fliall  be  allowed,  or  Eflbin  de  iervitio  Regis 
fliall  be  call  in  any  of  them.     2  Inft.  124. 

At  the  Com-  And  in  a  Plea  of  .Qtsare  hnpedif,  if  the  Dijlurbcr  come  not  at  the  firfi 
iron  Law,  in  j)^jy  ^j^^-^-i^  *  ^^j  is  fiiminoned,  nor  cafi  no  Fffoin,  then  he  Jball  be  attached  at 
^edu^The'""  ^z«i;//?fr  Day  ;  at  -which  Day,  tf  he  come  7iot,  nor  caji  no  f  Effotn,  be  fioall 
Procci%  was  he  dif  rained  by  the  great  Dijirefs  above  given. 

Summons,  ,.    n.    <- 

Attachment,  ^  and  Diftrcfs  Infinite,  which  was  mifchievous  in  rerpeft  of  the  Lapfe  ;    Now  it  is  pro- 

vided.  That  if  he  appear  not  at   the  Grand  Diftrefs,  Judgment  fhall  be  f^iven  for  the  Plaintiff,  and  a. 

Writ  to  the  Bifhopawardcd.     2  Inlf  124. .  "^  S.  P.  Br.  Quare  Impedit,  pi.  1,2,  cites  11  U.6.  5. 

And  the  Plaintiff  fliould  not  have  Writ  to  the  Bifliop  'till  the  Defendent  carae,  but  contra  now  by  the 
Statute. —  S.  P.  Brownl.  1 58. 

*  Put  the  Cafe,  That  upon  the  Summons  the  Defendant  is  rsturned  Nihil,  and  at  the  Attachment  and 
Diftrcis  Nihil  nlib  ;  this  Cafe  is  out  of  the  Letter  of  the  Statute,  for  the  Defendant  was  never  fummoned  ; 
but  it  is  laid.  That  when  there  be  two  Mifchiets  at  the  Common  Law,  and  the  LclVcr  is  provided  for  by 
exprefs  Words,  the  Grc.iter  iliall  be  included  within  the  iiime  Remedy.  This  Cafe,  ^when  Nihil  is  re- 
turned, is  the  greater  Milchicf,  for  he  by  his  Default  fliall  lofe  nothing,  but  in  the  Cafe  provided,  the 
Defendant  hv  his  Dcfiult  fhall  lolc  IlTues ;  and  the  Law  intends,  that  he  will  rather  appear  than  lofe 
IfTues.     2  I  nil.  124. 

A  Qiiare  Impedit  is  brought  a^ainll:  two ;  upon  the  Diffrefs  one  doth  appear,  and  the  other  makes  De- 
fault 5  in  7  E.  ;  it  was  reroIv'd,''that  the  Plaintiff  fhould  not  prefently  have  a  Writ  to  the  Biiliop  againfi 
him  that  makes  Default,  for  that  it  might  be,  that  the  other  that  appears  fhall  have  againft  ti-.c  [■b.intifl' 
a  Writto  thcBitTiop  ;  And  it  was  there  laid,  That  it  was  not  realbnable,  that  upon  one  O.i-^U'al  the 
Plaiiitiif  fhr.uld  have  one  Writ  to  the  Bifhop  for  him,  and  another  againll  him  ;  but  this  not  with  f'-nd- 
ini',  rlic  PlaintitV  b/  tliis  Att  nuglit  to  have  againft  him  that  m.ikes  Default,  a  Writ  to  the  B;''nop  ;  srid 
it  was  not  asr.ii.ill  Reafon,  if  the  other  Defendant  can  bar  the  Plaintiff,  for  him  to  have  a  Writ  t;>  the 

Bjfhcp 


Prefentation.  ^29 


Biflinp  at^ainll  the  Plaintiff  l>y  tiic  Common  Law  ;  And  ib  be  tlic  Liter  Bool:s,  and  common  Ex-x-iiciue, 
at  this  Day.     2  ln(t.  i  24,  115. 

■f  tflonium  or  E\'(mium,  is  derived  of  tlie  French  Verb  Effonier  or  Exonier,  which  fignificth  to  e:t- 
cule,  (o  as  an  tllbin  in  legal  Underlbnding  is  an  ExcuTe  of  a  Dcfiult,  by  Realbn  of  Tome  Im'v.-dirricnt 
or  Dillurbance,  and  is  as  well  tor  the  Plaintiff  as  tiie  Defendant,  and  is  all  one  with  tliat  which  the  Ci- 
vilians call  Excufatio.  Of  Effbins  there  have  been  (as  we  have  read  in  our  Books)  5  Kinds,  vii.  ill, 
Dc.Servitio  Pcgis.  2dly,  In  Terram  Sanftam  ;dly,  Ultra  Mare.  4thly,  De  Malo  Ledti,  in  our  old 
Books  called  Ellonium  de  Kefiantlla.  jthly,  Et  de  iSlalo  vcnieiidi  ;  and  this  Lll:  is  tiie  common  ElTbinc 
vhich  is  intended  in  this  Act.     2  Inft,  125. 

In  a  Quare  Impedit  or  Darrein  Prefcntment,  an  Effoin  de  Service  le  Roy  ad  Terram  Sancl.im,  or  Ul- 
tra Mare,  lieth  not  tor  doubt  of  t!ic  Lapfe,  bu"-  a  common  Ellbin  lieth;  and  of  Elloins  the  Mirror  (aid 
well,  Abufion  eft  oue  faux  Caufes  de  EfToires  font  Receivable  de  cy  i]ue  Droit,  ne  allowe  P'auvimc  in 
nul  Cafe,  &  Abufion  eft  d'allower  Eftbine  in  Perfonal  Actions,  For  the  lame  Author  treatii^rr  De 
Arti;Ies  ptr  viels  Ro)s  ordain,  faith,  Ordein  fueru!it  Ellbines  in  mixt  Actions,  and  Reals  &  Ne  iii'Per- 
fonels.  And  I  find  not  in  Gl.mvill  anv  EiToi!;s  but  in  Real  and  Mixt  Actions;  but  before  the  makinir  of 
this  Act,  Ef.oins  were  allowed  in  Pe.fbnal  Actions.     2  Inll.  125. 

And  if  he  come  not^  then  *  hy  his  Default  a  Writ  fls  all  go  to  the  Bipop  of*^^?o^  thefe 
the  fame  Place,  that  the  Clairi  of  the  Dtjliirher  for  that  Twie  floall  not  be  pre-  '^^!<J''*^'^  '^'^ 
judicial  to  the  t  Plaintiff),  faving  to  the  Difturl-er  his  Right  at  ancthtr'Lvie  p|j'j„'^hF/haIl 
■iiohen  he  -willfue  therejor-..  j,.j,,.c  ^  (vrit 

tothcBidiop 

without  mnkinj^  of  any  Title.     2  Inft.  125 The  Statute  fiith  only,  Scribatur  Epifcopo,  and  yet 

the  Plaintiff"  fliall  have  both  a  Writ  to  the  Bifhop,  and  befides  a  Writ  to  enquire  of  Damages    If  the 
Biflio|!  be  out  of  the  Realm,  a  Writ  to  the  Bifliop  may  be  awarded  to  his  Vicar-General,  t^r  he  is  id 


Place  of  the  fcifTiop.     2l:ift.  125. 

If  tfie  Dcfuidant  appear  at  the  Grand  Diftrefs,  and  take  a  Day  by  Prece  partium,  anl  after  mikes 
Defiuit,  no  \^  rit  fhall  be  iw  irdcd  to  the  Bifhop  ;  for  this  Cafe,  in  rcfpect  of  his  Appearance  u  out  of 
the  Statute  ;  but  a  new  Diftrefs  ilial I  be  awarded.     2  Inft.  125. 

If  Tie  Ki..g  (liall  take  the  Benefit  of  this  Statute.     2  in[\.  125. 

The  *  fame  La-Jo,  as  to  the  making  of  Attachments,  pall  from  henceforth  *  This  Ls 
be  ciferved  in  all  IVrtts  where  Attachments  he^  as  m  waking  Diflre(jes^  fo  ^^  J^'^  . 
that  the  fecoiid  Aitacbment  fball  be  made  by  better  Pledges^  and  ajtcwards  thiTc^h"  - 
the  lajl  Difrcfs.  and  is'to^bj 

underl^ood 
according  to  the  Letter,  and  iieedetli  not  any  Expofiiion.     2  Inft.   125. 

2.  In  Quare  Impedic  the  Plaintiff  recover  d  agaiiifl  the  Bipjop,  and  had 
fUtfringas  Kpifcopum  direiied  to  the  <ih:rijf  for  difinrbing  the  Churchy   and 

the  Sheri ft' returned  20s.  in  Iirues,  and  the  Plaintiff  pray'd  anotherDil- 
trefs,  and  had  it.     Br.  Qj.iare  Incumbravit,  pi.  2,  cites  21  E.  3.  31. 

3.  [{  the  Defendant  tnakcs  Default  after  Appearance,  the  Plaintiff  fliall 
recover  immediately,  and  hi.s  Damages;  butifthev  have  Day  by  Conti- 
f;iuif!ce,  there  the  Pi.;intiff  jhall  only  have  Dillringas  upon  the  Deiault. 
Br.  Quare  Impedit,  pi.  151,  cites  2  H.  4.  and  6  R.  2. 

4.  Quare  Impedit;  the  Sherilf  return 'd  A//^/7^?  the  Summons,  and  At- 
tachment at  the  Dijlrefs--,  And  by  4  Jultices,  the  Plaintiff  Ihail  recover 
by  Equity  of  the  Stature  ;  But  2  Jultices  Contra.  Br.  Quare  Impedit^ 
pi.  152,  citc^  II  H.  6.  3. 

5.  In  Quare  limped  it  the  Sheri ff  may //c?;/;;?o//  the  Defendant  in  the  Church.  ^  P-  For  in 

Per  Martin.     But  Danbv  and  Cotton  Contra ;  but  that  he  mav,  in  Writ  t''i-Writt!ic 

of  Right  of  Advowfon.     Br.  Quare  Impedit,  pi.  152,  cites  11  H.  rt.  3.        ^,f  demand- 

ed,  but  :lie 
Difturbancc  is  to  be  punilhed  for  the  Damage  done  to  the  Perfon    By  Danby  and  other  Juftices.    F.  N. 
B.  52.  (E)  in  the  new  Notes  there  (b)  cites  S.C. 

6.  K  fame  of  the  Plaintiffs  appear  in  Quare  Impedit,  and  fame  not.  Sum- 
mons ad  Sequendum  limul  Ihall  ilfue  belore  the  others  Hull  proceed.  Br. 
Quare  Impedit.  pi.  153.  cites  11  H.  6.  23. 

7.  The  Bifljop  ot"  Coventry  was  Patron  of  tivo  Prebends  ,  and  he  granted  ^^■  Lieu.  p!. 
the  next  A'voidance  of  either  of  them,  as  poiild  happen  to  be  /if I  •vacant   to  ;.;.  cites  21. 
J.  S.  which  GranfJ^as  confirmedhy  the  Dean  and  Chapter;  'The  Bifhop  tiiat  ^  3    5  ^s.  P. 
made  the  Grant (^//tv/;  One  if  the  Prebendaries  died ;  The  then  Bif/.op  col- 
lated it  to  yl/.  and  the  Grantee  brought  a  Quare  Impedit,  and  the  Court 

were  of  Opinion,  That  it  mult  be /ju'/^/'?//;  that  County -where  the  Cathe- 

5  Q  deal 


4'^o  Prdentation. 


dral  Church  is,  and  not  where  the  Hcdy  of  the  Prehetid  lies,  according  to 

2  1  E.  3.  D.  194.  pi.  33.  Mich.  2  &  3  Eliz. v.  Ralph  Bayne  Bp.  ot 

Lincoln  and  Merrick. 

8.  If  the  Rilhop  and  Defendant  join  in  bringing  aA\"rit  of  Error,  the 
Biihop,  unlcfs  fnnniwiicd  and  fevered,  mult  join  in  xhc  .d^'/giiiug  them. 
Cro.  J.  92.  Mich,  3  jac.  Lancalter  v.  Lowe. 

9.  ylfter  Judgment  in  Quare  Impedit  ior  the  King  v.  Saker,  and  Writ 
to  the  Biihop,  the  Incimibeut  continued  Pajfeffiofi^  and  ivajled  the  Vicarage 
Hoife,  fo  a  Prohibition  was  pray'd  and  granted  per  Curiam ;  For  as  Coke 
laid,  'Tis  the  Dowry  of  the  Church,  and  any  one  may  have  this  Writ 
iigainil  him  ;  For  it  is  the  Writ  of  the  King,  and  the  Prohibition  was  Not 
to  do  -£aft.  Roil.  R.  335.  Hill.  13  Jac.  in  the  Cafe  ot  Knowles  v.  Harvey. 

10.  Judgviieut  was  in  Quare  Impedit,  and  the  fimc  Term  a  Writ  of 
Error  was  deli\ered  to  the  fame  Court  before  a  Writ  to  the  Hipop  v\'as  a- 
^^•alded  to  admit  the  Clerk,  Per  tot.  Cur,  The^\■ritof  Error  ought  to 
have  been  allowed  without  any  other  Superledeas,  bccaufe  a  W  rit  of 
Error  is  a.  Snperfedeas  in  it  felf  Godb.  439.  Trin.  5  Car.  B.  R.  Earl  of 
Pembroke  v.  Boltock. 

A  JiivoiMvas  1 1.  ]n  a  Quare  Impedit,  if  theVen.  Fac.  be  returned,the  PlaintilTcan- 
'^^'Vh''-^"  "°''  ^^  iionfiiitcd  without  calling  the  J' (7?ji  But  if  the  Yen. Fac.  be  not  returned 
after  Evi-  at  the  Day,  then  he  may  be  nonfuited  on  the  Roll  without  calling  the 
dence  given  Jury  ,  And  lb  he  may  in  the  firll;  Cale  if  Dctt.  confent.  Noy.  107.  x-\non. 

in  Qiui.  Imp. 

and  Departure  frorntl-.e  Bar,  becaufe  the  King  fhall  not  be  prejudiced  ;  For  the  Judgment  is  Saho  Jicn, 
but  othcrwife  it  is  nfcd  in  the  Exchequer  upon  an  Information  or  Intrufion.  I^ioy  iii.  the  King 
V.  the  Kilhop  ot  Winchcfter  and  Dr.  Hide. 

2  Mod  264..  12.  In  a  Q^uare  Impedit  againfl:  two,  t\itY  fevcrallj  appeared,  and  cafi 
d'^rri^!^''"' d'  ^^■^  ^Jfi'K"  h'  ^''''"''^■)  'ind  Idem  Dies  was  given  to  him  who  tirlt  appeared 
thc^Court"  ^'^-  Thenar!  Attachment  iffiied  ngiunil  tiiem  for  not  appearing  at  the  Day, 
faid,  that  the  and  Procefs  continued  to  the  Grand  Diflrefs  ;  which  being  returned,  and  no 
f>hi:v[iri:ur^ht  Appearance,  ft/dgment  Final  was  ordered  to  be  entered,  according  to  the 
*° '^/'^'^  g""*^  Statute  of  Marlbridge,  cap.  12.  It  was  moved  to  difcharge  this  Rule, 
Church  and  bec:iufe  the  Defendants  were  notfummoned,  either  upon  the  Attachment 
feifed  the  or  Great  Diftrefs,  and  the  Sureties ,  returned  upon  the  Procefs,  were  John 
Profits,  and  J}qi;  and  Ricl: ard  Bce ;  that  if  Judgment  final  Ihould  be  entered,  there 
if  there  be  jg  .^^^  Remedy  but  by  Writ  of  Deceit,  and  on  fuch  a  Writ  the  Summo- 
""„',.„  ^'  ners  and  Vevors  are  to  be  examined  in  Court,  but  Feigned  Perfons cannot 
>;ihil ;  And  be  examined,  lo  that  it  is  an  Abule  ot  Officers  to  return  luchNames ;  that 
that  the  Ignorance  ot  the  Sheriff  was  the  original  Caule  of  it,  who  being  to  make 
Court  being  j^^eturjis,  and  finding  the  Names  of  John  Doe  and  Richard  Roe  fet  down 
"lin  conti-  '"  ^^'^  Books  of  Precedents  as  Forms,  followed  thofe  Precedents  exactly, 
micd' their  and  made  their  Returns  accordingly,  and  took  no  further  Care  to  return 
former  O-  true  Summoners,  per  Cur.  the  Delign  of  the  Statute  of  Marlbridge  was 
pinion;  It  j.^  j^^^^ ^  Procefs  duly  executed,  and  that  cannot  be  without  the  Tenants 
thatkavh'p-  having  notice  of  [i;  For  if  the  Defendant  do  not  appear  upon  the  Sum- 
dne  Kcthe  "^  mons,  an  Attachm.ent  ilTues  againfl  him,  commanding  the  Sheriff  to 
upon  the  i'lini-  feife  his  Body,  and  to  make  him  give  Sureties  for  his  Appearance,  if  he 
7.7c?7j  was  as  ■will  not  appear,  then  the  Grand  Diftre Is  is  awarded,  to  feife  the  Thing 
Icqui'rcd-^  ^  '"  Qucftion  ;  and  if  ftill  he  negleft  to  appear,  then  Judgment  Final  is  to 
For  the  o-  be  given,  by  which  the  Right  is  for  ever  concluded,  and  this  being 
thcr Writs  {o  fatal,  the  Procefs  mufl:  ne\er  be  fufiered  to  be  changed  into 
are  only  to  a  Thing  of  Courfe.  It  is  true,  the  Defendant  here  had  Notice  of  the 
I;'ndant'^  ^"-Suit,  but  he  had  not  fuch  Notice  as  the  Law  allows  him  i  And  for  his 
Time  to       Fourching  in  Elfoign  the  Law  allows  it  him.     Accordingly  Judgment 

piead,  and     was  fet  alide.  Mod.  248.  pi.  7.  Trin.  29  Car.  2.  C.  B.  Searle  v.  Long, 
thcrefbrenot 

nccefTary  that  Notice  fliould  be  given  vpon  cjei-y  ot:e  of  the  Writs;  For  if  once  ferved  it  is  enough.  Bur 
the  Court  was  ot  Opinion,  tliat  tlie  Deiendant  having  not  appeared  nor  caft  an  EfToign,  and  Judj^ment 
Elna!  being  given,  it  was  Reafon  tliat  ail  the  Procefs  IhcuM  be  (erved  really,  of  vvliich  there  had  been 
i.c  Octafioii,  i'f  h.e  had  either  appealed  orcflointd,  aid  thtrefoie  the  Pioi.c!s  r.ot  beirg  duly  ferved 

I  udj'men: 


Prefentation.  ^51 


yudgment  was  fetafide,  and  cited  Kaft.  Ent.  217.  And  they  held  that  the  F.ffota^n  of  the  other  Dejendntit 
•was  no  nvife  hindwrr  to  the  Patron  Defe/ultiit,  bccaufe  tlicy  m.iy  fever  in  Pleading,  and  Co  that  Judgment 
was  likewife  (ct  afidc. 


(B.  d.  5)    Pknd!j?gs.    Ahatcmcut  of  the  TFnt  by  Death  of 
one  of  the  Parties,  and  the  Effctis  thereof 

I.  T^-^-^O-K  Defendant  in  Quare  Impedit  rf'/V^/,  and  the  Writ  abated,  S  P  And  af- 

\      he  not  hein?-  named  by  his  proper  Name,  quod   Nota  ;   For   now  l'^'^  ^'"r '^ 
u  •  lA  r  "j  u       /^       ^    ^  .  ,'     1       .  '  ,0    Months 

there   is  no  Defendant,  Br.  Corporations,  pi.  79.  titcs   10  E.  3.  16.  &  paii-d  rhe 

Fitzh.  Quare  Impedit  32.  Phimiff 

brcupht  ano- 
ther ^lare  Iwfedit  r.,g/i:rfi   his  Succejfor,  and  awarded  good.    Br.  Quare  Impedit.  pi.  15S.  cues  10  £.  5. 
&  Fitih.  Quare  Impedit.  52. 

2.  Baron  and  Feme  Iroiight  ^iiare  Impedit,  and  the  Feme  dfd  pending  S-  P-  Br. 
the  Writ,  and  yet  the  Writ  remained  good,  and  the  Baron   had  W^rit  to  ^"'"''^  [^P=- 
x\\t'^\^\o'^  asTenatttby  theCurtefy.     £r.  Quare  Impedit.  pi.  67.   cites  3  8  ^.,'[(.5 , !  ^  , 

E.  3- 35-  12. 

In  Quare 
Impedit   ly  the  Baron  and  Feme,    if  the   Writ   abates  ly  the  Death  of  the  Feme,     and  the  Qaron   brings 
another  Writ,   and  Plenarty  !s  f leaded  in  Bar,    he  may  aver,  That   the   Church  ivas  loid,  within  6  Afonlhs 
iefire   the  f.rjl  Writ  ptirchafcd  ;  For   it  is  abatea  there  by  tie  Jci  of  God,  and   not  by  the  Folly  of  the 
Party.  Per  Newton.  Br.  Journes  &c  pi.  12.  cites  7  H  6.  16. 

Baron  and  Feme  made  Title  to  prelcnt  in  Right  of  the  Feme,  and  after  Ijftte  joined,  and  before  tie  Ve- 
nire Facias  the  Feme  died.  The  Baron  fhcwed  that  himfcif  had  taken  out  a  Venire  Facias  in  his  own 
Kame  ;  Whereupon  the  Defendant  demurred,  fuppofing  that  the  Writ  was  abated  ;  But  Wi'ich  was  of 
Opinion,  that  the  Writ  was  not  abated,  becaule  this  was  a  Chattel  veiled  in  the  Husband  during  the 

Wifi's  Life.  Win.  75   Pafch.  22.  C.  B  Blunt  &  U>:.  Hutchinfon.  So  where  feiera!  Barons  and 

and   ti.eir  Femes  were    Plaintiffs,    and  one  of    the  Femes   died  pending   the  Writ  before  Judgment,   the 
Court  awarded  Writ  to  the  Bifhop  in  the  Name  of  t!ie  Baron  and  the  others.  Mo.  4515.  pi.  625.  Trin.  3S. 

Eli?,  the  Countcfs  ot  Northumberland's  Cale. But  if  Quare  Impedit  be  brought  againft  Barcn  and 

Feme  tind.thers,  and  the  Feme  was  de^dtle  Day  of  the  Writ  ptirchafcd,  the  Writ   fhall  abate  ;  Centra,  if 
flie  h.id  died  ^f«(/;;7?  (/!'e//n/.  Br.  Quare  Impedit.  pi.  I  55.  cites  n  H.6.  23. 

3.  If  Quare  Impedit  be  brought  againjf  the  Patron  and  Incumbent,  and  the  Qnre  Im- 
Patron  die$  pcndu.g  the  Writ,  \-et  the  "Writ  Ihall  not  abate,  and   lb  Reco-  F'^'ragamft 
very  may  be  againll  tlie    Incumbent  alone.   Br.   Qi^iare  Impedit.  pi.  47.  ^^^  Ip.cum- 

cices  7  H.  4.  25.  37.  bent,  the 

Patron  plead- 
ed in  Ear,  and  the  fnciiwbent  pleaded  the  fame  Matter  aKc,  and  fo  to  Tffiit,  and  afrerone  came  and  ple.ided 
that  the  Patron  is  dead  after  the  laft  Continuance,  judgment  of  the  Writ,  and  the  Writ  was  awarded  good, 
per  JuHicium,  after  long  Argument,  by  ReafonofUie  Mi'.chicf  of  the  Lapfe.  Br.  Quare  Impedit.  pi  6. 

cites  oH.  6.  50. So  where  2  *  Parceners,  or  2  Joinienanis  bring  Quare  Impedit,  and  the  one   dies, 

the  VVrit  fhall  (land  for  the  fame  Mifchief,  and  fo  is  58  E.  3,  3  5.    Br.  Quare  Impedit.  pi.  6.  cites  9  H.  6. 

30. S.P.  Br  Quare  Impedit.  pi   67. cites  38  E.  3.  35. *S.  P.  And  fo  ot  tenants  in  Common.  Br. 

Quare  Impedit.  pi.  ■57.  cites  14  H  4.  12. 

4.  If  one  cf  the  *  Plaintiffs,  or  one  of  the  Defendants   in  Quare  Impe-  *  The 

dit  dies,  Qucere  if  the  Writ  lliall  not  abate.  Br.  Quare  Impedit.  pi.  7.  cites  ^"'"'^■'/"^'^ 
9  H.  6.  56.  per  Rolfe.  ^;|}i"ot  3. 

ba^e  the 

Writ,  but  he  fhall  be  fevered  F.  N.  B.  35    (L) 

If  2  hrino  Writ  :f  Ri:[ht  of  Jdvowfon,  or  ij  it  be  brought  ae-ainfl  tv-o,   and  the  one  dies,  of  the  one  Pare 

■or  the  other,  the  Writ  fhall  abate,   CbK/r.TW/i;  ^;(,7)-c /w/jcW;/ ;  For  there,  after  Title   made,    the    De- 

fe«dant  is  become  Actor,   and  he  may  recover  Damages  againlt  the  Plaintiff.  Br.  Quare   Impedit  pi.  6. 

cites  9  H.  6.  ;o.  per  Babhington. 

In  Quare  Impedit  againfl  3.  the  one  died pendine;  the  Writ,  and  yet  the  ^^'rit  was  awarded  good  again fl: 
the  other  ;  quod  nota.  Br.  Quare  Impedit.  pi  (>-..  cites  9  H.  5.  6. 

Death  of  the  or:e  before  Writ  purchafed,  fliall  abate  the  Writ  againll  all;  but  Death  of  the  o:ie  pending 
the  Writ  fhall  not  abate  the  VVrit  [but]  ag.iinft  hiiu'elf  liiinfelf  i-nly  ;  Note  the  I.^ivcrlny.  Br.  Brief  pi. 
5.  cites 27  H.  S.  to. 

Quare 


Prefeiitation. 


_432 ^ 

(>uji-e  Inr.'edit  wa.\  brought  agaiiift  the  BifTiop,  who  cc)ll.ited  M.  a.s  P.itron,  and  pcndiiif^  the  Writ, 
thc^Bifhoji  d'ifil,  yet  fiidfjmcnt  was  given  for  the  Fl.nntirt"  to  recover  the  Prclentnient,  and  Damtgesto 
liaU  a  Year's  N'alue/atid  an  An.ovcas  ofM.  and  Writ  to  the  now  Bidiop  or  Mctropolitiui  as  the  Plain- 
tirt  \leafe.  D.  194.  pi.  ;5  Midi.  2  &  5  Eliz.  Ralph  Bayne  Bifliop  of  Coventry  &c.  and  Meyrick'sCafe. 
—  Ibid.  M.ng  fays  that  Quare  Inipedit  was  brought  agjiiilt  P.itronParfon  and  Ordinary,  and  the  Patron 

died,   ard  yt-t  Jialgment  v,a.s  piveni-gairft  all,  cite.s  Trin   ;5lilij.  B.  R  Sir  Ki.  hard  Pijie".sCale 

Cro.E.  324'  S   C  by  Kan-.e  of  Pipe  v.  the  Queen. S.  P  For  there  are  2  MilchiL-ft.  1.  if  the  Writ  a- 

bates  the  DiflnrLivce  (hall  not  he pwiped,  though  the  Writ  was  well  commenced  ;  For  there  wants  a 
Dillurber  ;  Ard  id'v,  it  the  Writ  abates  not,  but  the  Plaintitf  fh.ill  proceed  to  Judgment  and  Execution, 
the  very  Patron  fhall  be  p<t  cut  of^  Frjfejpoti,  and  as  in  the  laft  Caic,  he  m.iv  recmti'iu.-  P  ire'Tioa  by 
Writ  ot  Hi'jht,  but  is  witliout  Remedy,  if  the  Writ  abate.s,  which  is  tlie  greater  MUchief,  it  flid!  not 
abate.  7  Rep.  2(5  b  in  Hall'sCafe,  and 'cites  -  H.  4^  26  b.    I ;  h.  8.  15.  9  H  0.6.  57.^  ^ 

Quare  Inipedit  by  a  Prior  againllthe  Bifliop  of  C.  and  others,  one  pleM-.ed  that  one  of  the  Defendants  w.ts 
lir.za  the  Day  ct  the  li-rit  find  nfed,  and  dcrr.andcd  Judgment  of  the  Writ,  et  non  Allocatur  fur  all.  Br. 
Quare  In.pcdi',  pi.  49.  cites  7  H.4.  34,  56. 

The  Grtin-  5.  A.  graftts  to  B.  the  next  PrefcntatioH  to  the  Church  of  D.  the  Church 
lee  oj  the  yoids,  and  B.  brings  Q^iiarc  Inipcdit,  and  dies  pending  the  Writ,  and 
'iMionhnu2}:t  ^'^'^^^  '^'''^  ^  IVJonths  pafs,  the  Executor  can  have  no  Remedy.  Br.  ()_uare. 
^itare  im-    Impcdit.  pi.  I J  8.  ciics  4  E.  6. 

y*-';/,   and 

di  d  .tftcr  the  6  Months  faft,  peridiTfr  the  tf'rit,  and  the  Executors  Iroiight  atiotlier  ^u,u-e  Impedit  hy^jnyneys 
Aic""",  3.rA  took  general  JFrit,  and  counted  cnieraliy  that  the  Grant  wa.s  made  to  the  Teftator,  and  he 
brought  Quare  Imp-dit  and  died,  and  that  they  brought  this  Writ,  Et  ea  Ratione  pertinct  ad  ipfos  pre- 
J(;ntave,  and  the  Defendart  hindered  them,  and  then  it  purp.)rted,  that  this  is  of  a  Difturbancc  done  to 
thenifelves  after  the  6  Months  pafled,  and  then  tlie  Writ  does  not  lie  ;  For  all  ought  to  lie  comprized  in  the 
U'rity  and  cout.t  Jpecially,  and  jh all  demand  U  rit  to  tlie  Bijhof  upon  the  frcfentationi  and  Writ  of  the  T'ellator, 
and  bccau'e  it  did  not,  therefore  ill,  Et  nihil  mde  venit.  Br  Quare  Impedit.  pi.  i Co.  between  Marie, 
Ogle,  and  Harri'bn.  But  Brooke  fays,  h  feems  that  whiere  the  Flaintiff  dies,  none  can  have  other  If 'rit 
hy  Jowneys  Accounts.  Br.  N.  C.  4.  E.  6.  pi.  410.  S.C 

The  ttait.'.iff  in  a  Quare  Impedit  died pinc'ine  tie  N'rii ;  It  was  prayed  to  have  another  Writ  for  the 
Executors  ;  Por  he  faid  he  could  not  have  it  but  by  the  Allowance  of  the  Court,  and  the  Court  granted 
it,  but  bid  liim  look  well  to  it,  it  it  lay  in  this  Cafe  or  not,  and  in  what  Form  the  Writ  fhall  be.  Cro. 
E.  1-4.  Hill.  52  Eliz.  Walter  Moile's  Cafe. 

Quare  Inipedit  is  revivabic  by  Journeys  Accounts.  Per  Hale  Ch.  J.  Ventr.  250.  Hill.  24 &  25  Car  2. 
B.  R.  in  the  Cafe  of  Dacresand  Buncombe. 

6.  Qiiare  Impedit  brou2;ht  hy  the  King  abates  by  his  Demife   Het.  83 
Pafch.  4  Car.  B.  K.  the  King  v.  Clough. 


(B.  d.  6)  Abatement  of  the  Writ  for  other  Matters. 
In  what  Cafes,  and  the  EfFeci  thereof. 

I .  ^T  O T  E  J  A  Wnt  brought  hy  the  King  or  Q^ieeii  is  not.,  Unde 
\S\  qnerittir,  that  the  Defendant  injujie  dzc.  18  £.  3.  i,  2.  (as  it  is  in 
the  Cafe  of  a  Common  Perfon)  Alfo  if  the  Words  [ft  dtcititr  be  omitted., 
the  Writ  is  good  ;  Yet  fee  38  E.  3.  31.  That  in  the  King's  Cafe  it  fhall  be 
Ut  dtatt<i\  but  in  that  of  aConunon  Perfon,  in  ail  Writs  it  Ihall  be  Ut  dirit. 
and  if  it  be  Ut  dicitur,  the  Writ  fhall  abate.  F.  N.  B.  32.  (E)  in  the  New 
Notes  there  (c)  cites  the  above  Cafes,  and  17  E  3.50.  74. 

2.  Quare  Impedit  by  the  King  againft  L.  and  intitkd  himfelf  to  the 
Moiety  of  the  Advowfon,  becaufe  L.  the  Defendant  was  Outlaw' d  ^iiYrefpafs^ 
and  conveyed  in  Forma  Juris  (as  appears  in  the  Book)  and  upon  the  Avoi- 
dance he  prefented,  and  L.faid  that  the  Advoivfon  zcas  fevered  into  three 
Portions,  and  named  the  Portions,yf^/^w  hoc,  that  the  Incumbent,  who  died., 
was  prefented  hy  the  Father  of  L.  as  the  King  fiippofcd  in  his  Count ,  and  the 
King  demurred,  and  had  Writ  to  the  Bilhop,  becaufe  the  Plea  oi  the  Dc- 
tendant,viz,.  That  the  Church  w&s  fevered  into  three  Portions  goes  in  Abate- 
ment cf  the  Writ,  and  the  Traverfe goes  in  Bar ;  But  if  he  had  relied  upon 
the  Pie.i,  that  the  Advowfon  was  fever'd  into  three  Parts,  the  King's 
Writ  had  abated.  Br.  Quare  Impedit.  pi.  115.  cites  22  All!  33. 

3.  A  Ji  rit  was  brought  by  the  &tieen  ratione  minori  tetate  J.  filii  & 
hiCrcdis  S.  in  Cujlodta  Reginx  esijten.  de  qua  prcrd.  S.  7'erramfua  tenutt  in 

Capicc, 


Prelcntation.  aqo 


Capite,  where  ly  the  Count  it  appeared^  that  be  held  of  one  G.  who  ivas  the 
^neen's  Ward,  and  yet  held  good.  F.  N.  B.  32.  (F)  in  the  new 
>;otes  cherc  (b)  cites  24  E.  3.  54. 

4.  In  Quare  Impedit  it  was  agreed,  that  it  is  a  good  Plea  to  the  Writ  ^0  if  it  be 
bv  the  Pntron  or  Incumbent,  to  Iky  that  the  Writ  uears  Date  in  the  Life  ^''""j'f  h 
ofthelajllncmiibent.     Br.  Brief,  pi.  75.  cites  46  E.  3.  19.  %,  th^'t  k 

hears  Date  m 
the  Life  of  the  Ar.cefior  in  this  Adion.     Br.  ibid. Br.  Qaare  Irapedir,  pi.  37.  cites  S.  C 

5.  In  Quare  Impedit  by  a  Prior  againft  the  Bifhop  of  C.   and  others, 

onQ  plead m  that  the  Church  was  full  the  Day  of  the  Writ  furchafed  of  the 
Prcfentment  of  the  Plaintiff ;  Judgment  of  the  Writ,  and  becaufe  )\Q.claiind 
mthing  iH  the  Patronage,  the  Plaintiff  demurr'd  i  and  therefore  awarded 
that  be  ihall  not  have  the  Plea  ;  quod  nota.  Br.  Quare  Impedit,  pi.  49. 
cites  7  H.  4.  34.  36. 


cannot  recover  the  Prefentation  where  himfelf  has  the  Prefentation,  and  fendant/W' 
it  does  not  lie  for  Damages  only.     Br.  Quare  Impedit,  pi.  54.  cites  12  tleCijun-h 

H.  4.    II.  was  fill  of 

his  c'vn  Pre- 
fentment  6  Mir.ths  before  the  H'^itpurchas'ii.     Ibid. 

7.  In  Quare  Impedit  by  C.  ^gsAU^'Q.  t\\t'?ld.nmS  counted  that  N.  was 
feifed  of  a  Manor  and  Advowfon  appendant  who  prefented  &c.  and  N.  gave 
in  Tail,  and  the  Donee  at  the  Avoidance  prefented,  anil  his  Clerk  in  &c.  and 
after  the  Tenant  in  Tail  died  without  Ifue,  and  he  in  Remainder  entered 
and  prefented  T.  &;c.  and  his  Clerk  in,  and  after  died,  and  he  prefented 
again,  and  the  Defendant  diflurb'd  him  ■,  and  the  Dejekdant  faid  that  a 
Stranger  was  feifed  of  the  Manor  and  Advowfon  appendant,  and  prefented  F. 
Sec.  and  died,  and  the  Manor  with  the  Appurtenances  defcended  to  K.  as 
Daughter  and  Heir,  who  took  the  Defendant  to  Baron,  and  the  Baron  and 
Feme  in  Jure  Uxoris  prefented,  and  the  Feme  is  yet  alive  ;  Judgment  of  the 
Writ :  And  the  bell  Opinion  was,  That  it  is  no  Plea  to  the  Writ;  for  the 
Plaintiff  alleges  the  Avoidance  ly  the  Death  of  T-  and  the  Defendant  by  the 
Death  ofF.  and  alfo  the  Defendant  does  not  allege  that  the  Prefentation  made 
by  the  Father  of  his  Fenie  ivas  after  the  Prefentation  of  which  the  Plaintiff 
declares,  nor  does  he  traverfc  it.  Br.  Quare  Impedit,  pi.  loS.  cites  14 
H.  6.  £3.  . 

8.  Jointenaney  of  the  Part  of  the  Defendant  is  no  Plea  in  Quare  Im-  In  Qinre 
pcdit:  Contrary,  it  feems,  iftkePartofthePlaintif.     Br.  Quaie  Impc- ■'"iP'=^*": 
dit,  pi.  108.  cites  14  H.  6.  23.  '  '  "'^f"'/'  ^''''- 

^    ^  '  ■■  ral,  one  can- 

,       ■  7M  plead  to 

the  Writ  by  fihit  dfarcenary  [oi-]  'tenancy  in  CumrHort  Pro  tri'dilifo  in  the  Plaintiff  of  the  AdTOwfon,  tin/.-fs  I>e 
Jicies  him  to  haie  olhcr  Title  in  the  Ad-vatvfon,  or  to  he  Incitinaent.  So  if  the  Count  bo  vicious;  (^isre  of 
the  Mirnolmer  of  the  Plaintiff.     Br.  Quare  Impedir,  pi.  154.  cites  51  H.  6.  i  j. 


'lare 
pi. 


9.  In  Quare  Impedit,  if  the  Writ  abates  upon  Plea  to  the  Writ  found  Br.  Qnare 
c.gainfl  the  Plaintiff,  or  by  Confeffion  of  the  Exception  to  the  Writ,  this  is  ^"'P'^^'",',  ^ 
peremptory  to  the  Plaintiif,  and  he  Ihall  not  have  another  Quare  Impedit.  and  cites 
Br.  Peremptory,  pi.  12.  cites  7  H.  6.  15.  S.C.  Where 

tlie  Writ 
vas  againft  Patron   nnd  Incumbent,  and  the  Patron  mnde  Dcf.iult,  and  the  hitiml'vi  appeared,   and 
fleadfd  that  the  Plaii.tiff  was  made  a  Ktiioi't after  tlie  laft  €c»ihiuanie,  ard  wa.s  found  for  the  Incumbcntj  by 
which  tlie  Writ  abated,  and  the  Plaintiff  prayed  u  Writ  to  the  BiOiop  tor  Default  of  the  Patron,  but 

could   nuc  have  it,  becaufe  it  is  repugnant  to  have  a  Writ  to  the  Bifhop  v.hen  lii.s  Writ  abates. ■ 

Where  the  Plaintiff  in  a  Qiiare  Impedit  was  made  a  Kni/rht  penditiij  the  irrit,  Sht  lly  thought  tliat  inaf- 
niuch  Si  this  fhall  be  accounted  his  own  Default,  he  fhall  not  have  a  Writ  by  Journeys  Acco'ints;  And 
agreed   that  the  Books  are  clear  that  the  Writ  Hiall  abitc.  ^D.  55.3.  b    pi.  7.    Paicli   ;4  &  i;5H.  8. 

AnoTi. [But  it  feems  by  the  other  Part  of  the  Cafe  (tho*  not  clearly  exprcfs'd)  that  ifthis  being  made 

a  Knight  was  not  the  Act  of  the  Plaintift  iiimfelf,  but  that  lie  had  hci^n'compeU'd hy  the  King  to  be  wade  a. 
I\nifl,t  (as  ai'.y  Man  having  Lands  of  a  certain  \^alne,  was  compellable  to  be  at  that  Time,  and  till  the 
1;  Car.  2.")  ti;cn  he  miglit  have  had  this  Writ,     See  Ibid.- — A"d  ufter  this  Cafe  i:  v.as  enacted  by  t 

5  R  E.  6. 


434  Prefentatioii. 

E.  6.  cap.  7.  that  making  a  Pl.iintitf&c.  Knight  &c.  fhould  nor  abate  tlie  Suit.] *  S  C,  Cited  6 

Hep.  10.  b.  in  Spencer's  Cafe. Tlie  Plaintiff's  being  made  a  Kniglit  pending  the  Writ  i.^  peremp- 
tory ;  for  common  Experience  tells  us,  that  it  is  the  Act  of  the  Plaintil},  and  no  one  is  c©m"eird  or  con- 
ftiained  thereto.     -  Rep.  27 .  b.  in  Sir  Hugh  Portman'sCafc. 

10.  In  Quare  Impedit  the  Plaintiff  in  hh  Count  made 'Title  as  to  the 

Jdvoivfon  appendant.    The  Defendant  jhe-^'d  Vine  levied  of  the  Moiety^  fo 

th;iL  the  Moiety  is  in  grofs,  J  udgmeut  of  the  Writ  ;  and  it  was  doubted 

if  it  goes  to  tlie  Writ  or  to  the  Adion.  Br.  Quare  Impedit,  pi.  10.  cites 

33  H   6.   II. 

In  Quare  1 1.  In  Quarc  Impedit  the  Plaintiff  fw;«?(7/  that  one  J.  F.  was  fcifed  in 

Plamtiff       Fee  ot  the  Manor  of  B.  ad  quod  Advocatto  fr^difia  pcrtinet,   and  preftnted 

couvte.iofa    '^"^  ^-  ""^^  after  gave  the  Mdnorto  which  &c.  to  one  O.  his  Anccfior  m 

Gijt  III  'fail   Tail,  and  alleged  another  Prefentment  m  the  Tenant  tn  Tail^  and  conveyed  the 

to  bis  Jficejhr  A'fanor  to  hniifclfas  Heir  in  Tail^  and  alleg'd  feveral  Deicents  ;  Littleton 

W  ia-    '^'^f"''"'^^'^  Judgment  of  the  yVrit  ;  lor  it  is  Ad  quod  Ad\  ocat'io  pertuiety 

"fm  as  7»       "^here  it  jhuiild te  pcrtinuit,  &  non  allocatur;  and  the  Defcents  adjudg'd 

Grcjs,  and     not  double,  by  Reafon  that  the  Gift  is  the  Effed,  and  the  Defcents  are 

cDunteAof       only  Conveyances,     Br.  Ouare  Impedit,  pi.  11.  cites  ??  H.  6.  %z 

fao  Frefsiit-  jj        ■     •    0    • 

^/jfw/j  &  non  excipitur ;  and  that  the  Church  voided  by  the  Death  of  R.  and  he  prefented ;  znd  the  other /aid 
that  the  Mvowjon  ivus  appendant  to  the  Manor,  -xhich  Manor  and  Jdicwfin  ivere  eiven  to  the  Jnce/hroffhe 
Plaintiff  ,n  Fee,  and  that  tie  Brother  uf  the  Plaintiff  gave  one  Jcre  Parcel  oj  tie  Manor,  and  the  Jdvoiufon  to 
the  Brother  of  the  Defendant  liihofe  Heir  he  is,  and  that  R.  tie  Prc/ei.tce  died  6  fears  fnce,  and  that  the 
Cliirch  voided  hy  the  Death  of  If-'.  Prefentee  of  the  Brother  of  the  Dejoidant,  Judgment  of  the  If'rit,  which 
fiippo/es  an  Jvoidance  by  the  Death  of  R.  and  alio  that  this/ZVi*  is  not  piirchas'd  within  6  Months  ■  and  it  was 
challeng'd  for  the  Doublenefs,  &  non  Allocatur;  for  the  Plea  is  to  the  Ifnt,  and  the  Jptendar.cy  and  the 
Dejcent  to  the  Defendant  is  for  litU.  And  it  was  agreed  there,  that  if  the  Advowfon  was  in  Grcfs  then 
tbe  Prefcntments  are  but  Ufurpations,  and  fhall  not  prejudice  the  Heir  in  Tail  by  Reafon  of  the  St.uute  • 
but  if  itwas  appendant,  then  the  Alienation  of  the  Acre  and  Advowfon  is  a  Dilcontinuance  and  he  cxi- 
not  prefcnt  till  he  has  recovered  the  Acre  by  Formedon;  but  if  it  was  in  grofs  he  may  have  Quare  Im- 
pedit ;  note  the  Difference  ;  for  Tenant  in  Tail  cannot  have  Writ  of  Right  And  after  the  Parties 
were  compcll'd  to  take  Iffi4e,  if  the  Jdvowfon  was  in  grofs  or  appendar.t  at  the  I'ime  of  the  Gift  in  T'ai'  • 

quod  nota^     Br.  Quare  Impedit,  pi.  3  i .  cites  4;  E-  3  •  ^4- And  in  Anno  44  E. ":;.  i  5.  in   the  fame 

Cafe  the  Ifiue  was  taken  if  the  Acre,  given  with  the  Advowfon  in  Difcontinuance,  was  Parcel  of  the 
Manor  or  not,  and  fo  the  Jppendancy  and  the  Grofs  was  tie  Eff'eH  of  the  Matter,  to'maintam  or  deftrov 
the  Attion.     Br.  Quare  Impedit,  pi  31.  cites  S  C.  ■' 

If  the  Writ  12.  It  was  agreed  for  Law,  that  if  Quare  Impedit  abates,  the  Plain- 

FaTfe  L^tin  "^'ff^hall  not  have  another  Writ  ;  for  this  is  peremptory ,  quod  nota  i  and 

or  rnfifffi-  ^"^>''-'  of  "^  beforfalfe  Latin ^  which  is  the  Default  of  the  Clerk.  Br.  Quare 

ciency  of  Impedit,  pi.  15.  cites  34  H.  6.  37. 

Firm,  this 

is  the  Default  of  the  Clerk,  and  H-.all  not  be  peremptory  to  the  Plaintiff,  nor  fluiU  the  Defendant  have 
Writ  to  the  Bifliop  upon  it,  but  the  Plaintiff  may  have  a  new  Writ  of  Quare  Impedit  •  and  with  this 
agrees  5  H.  6.  5.  a.     31  H.  6.  15.3.     7  Rep.  27.  b.  Pafch.  40  £lu.   in  Sir  Ha-h  Portm'.ui's  Cafe. 


f/M^%  13-  In  Quare  Impedit  if  the  Plaintiff  is  Nonfuited  after  Appearance 
fotho'the  ^'^'^  '^  peremptory,  tho'  it  be  before  Declaration  ;  quod  nota.  Br.  Peremp- 
Writbe        tory  74.  cites  19  E.  4.  9- 

brous^ht 

^vithm  fix  Months.     7  Rep.  27.  b.  Pafch  40  Eliz    Sir  Hugh  Povtman's  Cafe  • .Soof  a  Difcontinuance. 

Ibid. -The  Nature  ot  a  Quare  Impedit  is  to  be  final  upon  Nonfuit  or  Difcontinuance.     Hob.  i-- 

J3S    pi.  187.  Trin.  14  Jac    in  Caie  of  the  Esrl  of  Bedford  v.  Bilhop  of  Exeter  and  Wilfon.  The 

Nonfii:-t  of  one  Plaintiff  ihiU  not  abate  the  Writ,  but  he  fhall  be  fevej-cd.  F.N.  B.  -^5.  (L.) 

lemsnof      j  ^'^'  fi^'""'''  ^''"^'"^'^  ^^'  ^^''  ■^'""  ^S^inft  Others,  and  one  is  'hy  her  con- 
clearly  detuned,  and  t.xecution  taken  againfi  him ;  this  IJiali  abate  all   the  \\' ric 

abridg'd ;  agamft  the  others,  as  in  Trelpals  againll  fevcral.  hx.  Executions  pi. 
The  Cafe        1 46.  cites  2o  E.  4.  I.  ' 

itfelf  is. 

That  file  recovcr'd  by  Defanlt  againft  one,  and  had  Judgment  to  have  Writ  to  the  BifTiop  &c  with  a 
h'??"u  j'i'^'i"'.'""  i.'''^'*  between  the  othersmd  her;  for  otherwife  this  Evecution  a-iinft   one  alone. 


iviil  aba.e  the  ^h  rit  againlt  the  others;  as  in  Trefpals  againff  two,  if  the  Ifluc  b.  tried  a<-air(f  one    and 
the  I  laintitf  prays  E.xecution  againll  him,  the  Writ  fhall  abate  againll  the  others  £cc.     Fafch  20  E.  4. 

IS  I:i 


Prefentation.  4/^5 


ij".  In  Q^uure  Impcdic  againft  feveral,  it  was  agreed  that  to  fay  chat  I'licKin 
No  J  tic  h  in  Rerrou  Natura^  as  the  one  of  them  is,  llr.iil  abate  all  the  V\^rit,  '"-"en'-c'd  N. 
but  *  Mifnomer  of  the  one  Ihall  not  abate  but  onlv  -a^ainit  him  who  is  mil-  {?      ?,^  ^r 
named.     £r.  Brief,  pi;  3.  cites  zi  H.  8.  26.  Cliaui,rcry, 


a 

which  fliall 


bs  called  Vyo'iofl  of  the  Chaia.tery  ofC  and  after  tlic  King  imjiIeaJcd  him  by  Name  of  thcProw/?  o'  tic  hLitfg 
oj  C.  ai.d  forthi:>  Milnormer  the  Quare  Irapcdit  alvitcd,  notwithftandii'g  it  uas  avcrr'd  for  the  Kir'sj  that 
he  was  known  by  this  Name.  Br.  Mifnomer,  pi.  24  circ;  r;S  E.  ;.  14^^ — S  P  Br.  Biicf,  pi.  1  -  -  ''cites 
S.  C.The  Reafon  fecms  to  be,  bccaufc  the  King  fliall  take  Conufance  of  the  Name,  which  he  himfelf  ap- 
pointed by  his  Writ. 

16.  The  Te/c  of  every  Quare  Impedit  (J:)allbetheja}?ic  Bay  that  the 
Wnt  is  obtained^  by  Reafon  of  the  LapJ'e,  that  it  do  not  pre\  cut  the  lix 
Months,  fo  as  to  defraud  the  Ordinary.  Br.  Quare  Impedit,  pi.  151. 
cites  the  Regifter. 

17.  In  Quare  Impedit  by  the  Queen  the  Count  was  upon  a  Prefenta- 
tion made  by  H.  8.  in  Right  of  his  Dutchy  of  Lancaller,  and  Co  con- 
veyed the  fame  to  her  by  Defcent.  Exception  was  ta.ken  to  the  Writ, 
becaufe  it  does  not  kz  lorth  how  the  Queen  claims  the  Advowfon  ;  as 
where  the  King  prefcnts  by  the  Temporakies  in  his  Hands,  the  Wxiz 
fhall  fay,  Ratione  Epifcopatus  Cant,  nunc  vacant,  or  in  Cafe  of  Ward, 
Ratione  Cuitodis  j  and  that  therefore  in  this  Cafe  it  ought  to  be  laid. 
Ratione  Ducatus.  But  Anderfon  Ch.  J.  held  the  Writ  well  enouo-b 
and  it  is  good  enough  both  >\''ays,  either  Generally  or  Specially  j  and 
cited  the  Book  of  Entries  accordingly,  where  the  Writ  is  general,  but 
the  Count  is  Ratione  Ducatus  fui  Lancaftrise.  And  afterwards  a  Prece- 
dent was  fliewn  of  Anno  32  H.  6.  where  the  \\'rit  was  General,  and  the 
Count  was  Ratione  Ducatus.  Le.  226,  227.  pi.  307.  Pafch.  33  Eiiz 
C.  B.  The  Queen  v.  Bilhop  of  York. 

18.  If  a  A£!n  has  an  yldvrrjufjn  in  right vf  his  Feme,  and  the  Husband 
brings  Quare  Impedit,  the  vVrit  Ihall  be  general  Ad  fuam  fpectat 
Donationem,  without  mentioning  his  Wife  ;  per  Anderfon  Ch  J.  and 
cited  the  Book  of  Entries  483,  that  the  \V  rit  is  general  and  the  Count 
jpecial.     Le.  227.  pi.   307.  in  Cale  of  ihe  Queen  v.  Bilhop  of  York. 

19.  The  Plaintitt  in   a  Quare   Impedit  declared    thus,  (viz.)  Sriam  [•^'^rioiob- 
fpeifat  Donationem,  leaving   out  the  VVord  <^ad  i)  adjudged,  that  the  '.-''^e  •"iv' 
VVrit  Ihall  be  amended.  3  Nelf  a.  36.  pl.  5.  cites  Reynoldlbn  v.  Biibop  l"/'thcCa[e 
of  London.  3  Lev.  435.  '  cited,\ut 

Goldsb.  tS. 
pi.  li.  Hill.  ;o  Eliz. inlBrOkr^b"'^  Cafe  is  the  fame  Point,  and  that  at   length  by  the  Opinion  of  all 
ll'.e  lufrices  it  was  amendable,  and  that  a  Clerk  of  the  Chancery  came  into  C.  B  and  amended  it. — ~— 
Cro.  £.119.  pl.  4.  Mich.  50  &  ;  I  Eliz.  S.  C.  by  Name  ot  Roo]<e6by's  Cale. 

20.  If  after  6  MonthsaQuare  Impedit  aLate^  which  was  broughtwith-  S-  P-  and 
in  the  6  Months,  the  Plaintilf  is  remedilefs  to  recover  his  Prelentation  >^"  "^'"^  ^"^'^'''^ 
Cro.  E.  1 19.  Mich.  30  &  3 1  Elii.  B.  R.  Rookleby's  Cafe.  ^^^  bat  lie 

fliall  recover 
all  in  Damages,  and  therefore  to  prevent  this  it  is  ufual  to  name  tlie  Ordinary  in  the  Quare  imoedit ; 
Per  Pigot.  Br  Quare  Impedit,  pl.  147.  cites  9  R  4.  ;o.  — /».•(<  if  the  Qijare  Impedit  abates  iiithin  the 
6  Months,  the  Plaintiti  may  bring  another  Writ  ;  but  if  the  Plaintitl  be  *  No):fi:it  within  the  6  Months 
he  Cannot  have  a  new  Writ ;  becaule  the  Defendant  on  Title  made  has  a  VVrit  to  the  Bifhop,  and  for 
that  CaufeanewWrit  to  theBifliop  will  not  lie  .Brov;nl.  i6i.  Anon.— —  ♦S.  P.  -  Rao  2,r.  h  Portmn's 
Cafe.  ... 

21.  The  Patron  granted  the  next  Prejentation  to  A.  and  B.  The  Church  Ow.  85  S. 
became  void,  and  diiving  the  Avoidance  A.  rikafid  his  Right   to  B.  who  ^  ■  -A^^Z^^- 
being  dillurbed,  brought  a  Quare  Impedit  alone  ;  The  Defendant  de-  7?tf~pl  ^xi 
murred,  becauie   it   appears  of  the   Plaintills  own  llicvving,  that  they  Hill' ; 2  E- ' 
ought  to  ha\e  joined  in  the  Aclion,  and   the  Releafe,  being  made  after  I'?,.  S  C. 
the  Church  was  void,  was  of  no  Elle£l  i  Adjudged  accordingly  that  rhe^''"^"'^'''' 
Releafe  was   void.     Le.    167.  pi.    232.  Mich.    30   &    31    Elii.    C.  B.  ll^'i^'voir'' 
Brokesby  v.  Wickham  and  Billiop  oi  Lincoln.  becaule  heVe 


■was  not  any 


Inteveft  to  be  relcafed,  but  a  Powcronly  to  prefent,  and  an  .\utliority  annexed    to  the  Perlon. After 

theVoidance  it  is  merely  aChofeen  Aition,  and  fo  not   to  be  releafcd.  Cro  E.  1-5    Brook^bic's  Ca!"c. 

■ And.  2;;.  pl.  241 .  6.  C.  adjud^td ^Goldsb.  1 1 ;.  pl.  19.  S.  C.  Adjornatur. 

22.   A 


43<5 


Frei'eiitation. 


22.  A  Qiiarc  Impcdic  -was  brought  by  fe-vcrdl  Paj'ons  jointly^  and  tn  the- 
DecL'iratioti  they  ^'ary  m  their  1'itle  ;  The  Courc  agreed,  that  the  \V  rit 
Ihall  abates  For  the  Judgment  mull  agree  with  the  Writ,  unleltj  there 
be  Summons  and  Severance i  and  upon  divers  Titles  a  joint  Judgment 
cannot  be  given  ;  lor  there  can  be  but  one  Kightlul  Title.  Mo,  1S4.  pi. 
327.  Anon. 

23.  In  a  Quare  Impedit  J  where  the  Writ  abates,  xh^  Defendant  pall 
not  ha-ce  a  Return  J,  lor  perhaps  his  Clerk  is  in  i  ilnot,  he  may  recover 
bv  a  Quarelmpedit  as  Fiaincilfi  and  there  can  be  no  Judgment  where 
there  is  no  Writ,  ^\'here  the  Writ  abates  there  is  no  \V'rit.  Jenk,  124. 
in  pi.  51. 

Ei-ownl.  24.  In   Quare   Impedit  &c.  the  Defendants  pleaded  in  Bar  another 

j6;.  S.  C  .G)jiare  Iniptdit  hraiight  by  the  fame  I'laintijfs  for  the  fame  Churchy  arid 
—^■^•'^y'^^  averred  that  they  vuere  the  fame  flaintijfs,  tne  lame  x^voidance,  and  the 
c'fe  tf- An-  ^'-^'"^  Dilturbance,  upon  which  both  Attioiis  were  brought,  and  tiiat  tae 
£irews  V.  ^I'ii:  Action  is  Itill  depending  &:c.  Tht  Plaintiff' repiud,  that  alier  the 
Hacker. —  bringing  the  firft  Action  he  Itili  continued  feifed  in  Tail  ot  the  Advow- 
S.  C.  cued  fQi^j  ^  .jnd  being  lb  Icifed,  he  preiented  his  Clerk  to  the  Bilhop  &c.  who 
Biwnl.  2  .  j-eluled  him,  which  is  the  Dilturbance  upon  which  he  now  declared  m 

in  Calc  or  ,  .  ,     ,  r-  •  ,  r    ,     ,         ■  ,      r  r\    n      1 

Sir  William  this  2d.  Action,  and  traverjed  that  itwasthejamelJijTure>ance,  upon  vvnich 
St  Andrew  he  declared  in  the  former  A£tion.  The  Deiendants  demurred;  the  whole 
V.  the  Arch-Qjj|.(-  ^igpeed,  that  the  Writ  ought  to  abate  i  for  though  there  muxt  be- a 
Y  •I'^'aiid  Dirturbance  naturally  to  maintain  the  Action,  yet  the  principal  i£ffeci( 
the  Cour.tefsof  the  Suit  is  to  recover  the  Prefentation  i  and  therefore  for  tne  fame 
of  Shrewt-  Thing  you  fliali  not  have  two  Suits  at  once.  Now  there  was  a  Diltur- 
bury. — *-ye-bance  laid  in  the  firft  Action,  and  the  Avoidance  ol' the  fame,  fo  that 
•L^eral^iitre  ^^^  new  D'/ltirbance  betters  not  the  Plainritis  Cafe;  belides,  it  istheNar 

Imtedits  may  r     /^  r  j-  i       r       i        •   u  r-r- 

be'brcu;;ht  tiire  ot  a  Quare  Impedit  to  be  final,  either  upon  a  Dncontinuance  or 
aeaivflf^e-  Nonfuit ;  Dut  by  this  Means  One  Man  may  bring  20  Qiiare  Impedits, 
ral  Defeii-  which  would  be  intolerablv  vexatious  ;  and  the  add/nga  new  Defendant 
^'''"!'\''^l°'^^  mends  not  the  Cafe  ;  For  fill  there  are  tito  depending  again  ft  the  fame  Per- 
ilfhcp,  and  fi"  '•>  but  he  may  have  as  many  as  he  will  againll  *  leveral  Perfons.  Plob. 
another  a-      137.  pi.  187.   Tiin.  14  Jac.  the  Earl  ofBedlord  v.  M'ilion. 

gainft  the 

Patron  and  Iiicumbenr  ;   But  if  A.  brings  a  Quare  Impedit  againft  B. —  6.  car.not  have  a  Quare  Impedit 

againft  A.  Brown).  16.  Anon. 

This  Cafe  of     2.$.  Quare  Impedit  againfi  Richard  Bipop  of  Lincoln^  the  Patron   and 

Coppiedick    Incumbent^  who  pleaded^  that  at  the  Day  when  the  W  rit   was  brought, 

-I  v.-hei-e     ^^G^Q  y^a^  no  fich  Richard  Bipop  of  Lincoln^   and  this  was   held  a  good 

this  Plea  be-  Plea  in  Abatement.     3Nelf  a.  §8.  pi.  19.  cites  Hutt.  33.  Coppkdikev. 

ing  pleaded   Tanfey  ;  and  Winch  73.  S.  C.  reported  bv  the  Name  of  *  Blunt  v.Hatch- 

^y  ^\_^  ^"-     inion. 
cumbent  was 

demurred  to,  and  another  Plea  being  pleaded  by  the  Patron,  viz.  that  there  was  no  fuch  Church  as 
Ulceby  in  the  County  of  Lincoln,  this  lall  being  tried  \t  was  found  for  the  Defendant ;  For  that  there 
Tvas  an  Union  of  the  Church  of  Fordington  to  the  Church  of  Ulceby,  and  that  it  was  called  Ulceby 
cum  Fordington,  and  that  Inftitutions  Sec.  were  to  Ulceby,  and  that  Ulceby  was  the  greater,  and  For- 
dington the  Idler  Cliurch  and  united,  and  therein  had  loil  its  Name,  it  was  agreed,  thatbein^  known 
by  the  one  Name  or  the  other  had. been  fufEcient  to  have  found  for  the  Plaintiff.  It  was  objected  for 
the  Plaintiff  in  Arrelt  of  Judgment,  that  there  was  a  Mil-trial  ;  For  to  try  the  Iffue  of  Nul  tiel  Vill, 
the  Venire  fliould  be  from  the  Body  of  the  County,  whereas  here  it  wasDeVicineto  dc  Ulceby  ;  But 
all  the  Court  agreed  the  Trial  good,  and  that  it  is  admitted  there  is  fuch  a  Town,  and  the  Writ  im- 
plies it  ;  and  Judgment  for  the   Defendant. [But  as  to  the  Plea  of  the  Incumbent,  viz.  that  there  is 

no  fuch  Richard  &c.   r.o   farther  Notice  is  taken  of  it.] S.C.  by  Naine  of  Cuppledick  v.  Ter- 

whit.  Hob  249,  2.50. Trin.  16  Jac.  fays,  That  the  whole  VN'rit  was  abated  againft  all  the  Der'end.ints 
upon  the  Verditt  found  for  the  Defendant,  and  that  no  (Opinion  was  given  upon  the  otiier  Demurrer  qf 

Ko  fuch  Bifliop  &c. ♦  The  Cale  of  JBlUIlt  b,  li  lltf  llint'on,   Win.  75.  is  neither  the    S.C.   nor  the 

b.  P. 

26.  In  Quare  Impedit  the  Defendant  prayed  Oyer  of  the  W"rir,  and 
pleaded  in  Abatement  that  there  was  a  Variance  between  the  \Vrit  and 
Count,  the  Writ  being  .!^n£  ad  nojlram  jpedat  Donaiicnern^  and  the 
Count  was,  ^U£  ad  [nam  Donationem  fpcifat  'fare  Prerrgativ£.  It  was 
objcfted  «^n  Demurrer,  That  the  Title  by  tiie  Writ  is  a  Title  in  Fee, 
but  this  in  the  Count  is  onlv  a  Title  Pro  huic.Vicei  fed  non  allocaruri 


■  '   ■■' —      .  -I  .  .       .1  -   - 

Prefcntation  zj.^^ 


For  the  Precedents  are  fo,  and  the  Writ  is  always  general  i  and  if  the 
King  has  Judgment  by  Delauk,  and  a  Writ  ro  the  Bilhop,  this  will  not 
gain  a  General  Title  to  the  Crown,  or  become  an  Ufurpution  ,  per  Holt 
Ch.  J.  For  where  the  King  has  Judgment  by  Default  in  a  Qiuire  Impc- 
dit,  he,  as  well  as  a  Subjeft,  mult  by  Suggeition  on  the  Roll  let  forth 
his  fpecial  Title.  A  Relpondeas  Oullcr  was  awarded.  2  Salk.  559. 
Trin.  5  W.  ik  M.  the  King  v.  Dr.  Lancailcrand  Eilhop  ot  London. 

27.  In  QLia.  Imp.  the  Coufjt  'varied  from  the  Writ  i  lor  the  \\  rit  was 
Quod  permittat  prxfentare  ari  Vicariaai^  and  the  Declaration  is  Aa  Ea!(~ 
fnuii  pcrtinet  pra?fencare  i  but  upon  Exception  taken  to  it  the  Court  re- 
folved.  That  Omnes  Vtcaria  eft  Kcclefid^  and  that  it  is  lb  held  exprefsly 
in  fe\  eral  Books,  and  therefore  is  no  Variance  in  Subftance  bat  in  Fonii 
only  i  and  this  not  being ftjcivn  for  Caiije  of  Deiimrrcr;  Judgment  was 
given  for  the  Plaintilf,  and  thereupon  the  Defendants  brought  a  Writ 
of  Error  and  a  Bill  in  Chancery  &c.  Garth,  sr^  &c.  Trin.'6  W.  &  M. 
B.  R.  Keynell  v.  Long. 


(B.  d.  7)  In  \vhat  Cafes  the  Patrou  &c.    muft  be  named. 

iJ  a  "'HEKingmay  h^ve  .^iiare  Impedit  againjlthe  Incumbent  alone,  contra  ^'■-  Quas-c 

I     of  a  common  Perfon.  Er.  Prerogative,  pi.  no.  cites  4.1  E.  a.  lo.    ^'^P.'^'^'f' p'- 
^^  "  ^.  T        •  r-  *^'     6.  cites  9  H. 

^.50.  by  B^^bington. — And  fo  where  the  Pope  prcfcnted.     Ibid. S.  P.  Br.  Qii.tre    Impcdir,  pi.  4-. 

cites  7  H.  4.  25.  5;., C^uare  Impedit  by  tlie  A'/><v?  ^re-.tra/?   the  Imiin.hent  alone,  who  pl>:aded,  which 

u-.is  fi^und  ag;ainfithc  Ki;sc^,.'jin<i    it   w:%s  moved    in  Avreft  becaufe  the  Pittro}i  was  >wt  natiicl  in  the  11 'rh, 

but  beciufc  the  Writ  .was  admitted  it  was  awarded  that  the  Defendant   Jiat  inde   fine   die.    Br.  Quarc 

ImpcJit,  pi.  44.  cites  5  H.  4.  2.  5. 

Qiiare  Impedtr  b)  theAVwj^  afaitifi  the  Ivcumbetrt  ahne,  and  coiir.fcdthat  the  Jhhefs  of  U'.wasfcjfed  &c. 
in  Ritrit  oftleCiurcb,  and  frefcnted  U^.vj\\o  was  admitted,  and  after  the  Church  -voided,  and  Jbe  prejented 
B.  '•u'Ijo  was  admitted,  and  after  pas  created  Bijhop  of  S-liy.iviich  the  Church  V07ded,.a>id  remained  ^oid  till 
ike  'Tcmporaliics  "came  ifrio'the  Hcinds.  oj  Kins;  L  ;.  (which  is  intended  the  Ttmporalties  of  the  Abbcfs  as 
it  feenis  to  me,)  and  m.ide  the  Delcent  to  tlie  King  vvhp,now  is,  by  ichich  he prefented,  and  the  Ijcjendant 
ttifittrhed  l.im,  (and  (b  fee  that  the  *  Ki'.g  jTiall  have  Prcfetit.-tion  ivlich  fell  in  tlie  time  of  the  former  A'/«e-, 
and  not  liis  Executors  ;)  and  the  Defendant  pleaded  to  ;he  Writ  becaufe  he  is  only  an  Incumbent,  and 
the  Patron  is  not  named,  and  the  Writ  awarded  good  ;  for  itnuy  be,  that  the  Patron  did  not  difturb, 
and  alio  in  this  Cal'e  the  King  Jlhxll  jiot  recover  tl>e  ^'Idvo'wfon,  but  only  the  Prefentatioii,  andi,y  this  Recovery 
the  Patron  f 'all  not  be  cut  of  Pojfei]:cn  as  in  other  Cafes,  becaufe  it  appears   that   the  Title  of  the  King  is 

notto  any  Inheritance.   Br.  Quare  Imcedit,  pi.  47.   cites  7  H.  4.  25.  97. ♦  Bv.  Prefentation,  pi.  I'r 

cites  S.  (J. 

The  King  brought  a  Onare  Impe  .it  ag.iiiin:  the  Bifhop,  Smith  Incumbent,  and  Langford  ;  The  In- 
cVlmbent  pleaded  that  no  Patron  was  named  in  the  Writ  ;  and  per  Cur.  that  U  a  good  i-'lea  in  Bar,  tho* 
the  King  be  Plaintiti  he  claiming  toprefent  by  Lapfefor  Simony.  Alio  the  Patron  now  ii-as  only  Grantee  of  the 
Prochein  Jvoidancc,  and  had  prefented  Smith,  yet  he  ought  to  be  n.imed  ;  but  if  the  Clerk  had  been  in  Ly 
Collaticn  by  the  Ordinary  for  Lapfe,  or  Provifion  of  the  Pope  .in  former  Times,  or  £x  Prelentatione  Bc- 
gis  againrt  whom  no  Writ  lies,  if  a  common  Perfon  had  been  Plaintiff  in    the  (^uare  Impedit,  in   thole 

Cafes  it  might  be  without  any  Patron.  Noy .  151.  the  King  v.  Biihop  of  Litchfield  £cc. Cites  7  H.  4. 

37 ;  and  7  Rep.  26.   9  H.  6.  Sac. 

2.  Quare  Impedit  againfi:  one  who  f'.id  that  the  Biftjop  prefented  him 
hy  Lapfe,  and  that  he  claimed  nothing  in  the  Patronage^  JudgiTient  if 
Torti  and  the  other  prayed  Writ  to  the  liifiiop,  becaufe  he  has  dif- 
claimed  in  the  Patronage  ;  But  per  Cur.  you  ihal)  not  have  it,  but  your 
Writ  ftj all  abate ^  becaule  he  is  no  Difturber,  nor  the  Bijhcp  not  named  m 
the  Writ;  &  adjornatur.  Br.  Quare  Impedit,  pi.    24.  cites  42  E.  3.  7. 

3.  Quare  Impedit  by  the  il/»_^,  who  made  his  'fit le  for  Alienation  /;;S.C.  cited 
Mortmain  of  the  Manor  to  whicn  the  Advowfon  &;c.  and   the  Biihop  of.'  ^.'•"P  2^'  ^• 
R.  prelented  his  Clerk  who  was  admitted,  inltituted  and  inducted,  and  jlj'j|j"'^,^°ljg 
the  Biiliop  died,  and  xhQ  King  ivithi'n  the  Tear  brought  r^uare  Impedit  uin\o'->  oi: 
againfi  the  Incumbent  alone^  and  well  ;  for  he  may  plead  againft  the  King  B.uli  a;,d 

by  the  Statute,  and  alfo  the  BilLop  who  now  is  was  no  Dillurbcr,  fo  that  VVclU. 

J  S  ■  the 


+38 


Prcfentation. 


the  Attiondocs  not  lie  againll  him.  Sav.  109.  pi.  184.  in  Cafe  of  Hall 
V.  the  Biihop  ot  Bath  and  vVclls,  cites  47  E.  3.  1 1. 

4.  Quare  Impedit  agaiufi  R.  L.  as  liictmbmt\  and  D.  C.  as  Patron  ■ 
The_  hictimkat  Jaid,  that  be  was  prefcHtcd  to  the  iame  Church  l>y  A  h 
and  inlhtutcd  ^«^ /«rt'///7frt',  which  A.  B.  is  not  named  in  the  W'rit  Tudsr* 
ment  or  the  Wric  i  Per  Brian,  the  Writ  is  goodj  For  he  has  named  a 
JJilturber,  and  the  Incumbent  is  not  difturbed  by  A.  B.  but  by  D  C 
and  there  is  no  Reaion  to  ha\e  Action  ae;ainlt  him  who  has  done  no 
Tort  to  the  Plamtirf]  And  therefore  held  good  ;  and  \'o  fee  that  the 
V\  rit  IS  good  agamlt  Duturber  and  Incumbent,  though  the  Difturber  is 
not  v^ery  Patron.  Sav.  109.  pi.  184.  in  Cafe  of  Hall  v.  the  Biiliop  of  Bath 
and  Wells,  cites  22 E.  4.  44. 

^:^u   ■    ^-  ^Vherethere;.;;«P«/r.;;,  there  lies  C^mre  Impedit  uithout  nam- 
gai„cdh;,he   '?S  ^"^  ^-^txou.     Br.  Preicntacion,  pi.   23.  cites    14  H.  8.  2.  per  ritz- 

Prefei.tat'wji,    JamCsJ. 
Adniiiriorij 

Tenktapuf  \£"^aIt;Jv™  with  the  Incumbent  i„  the  Q^m-e  In^pedit. 

6.  W^herc  the  King  pefents  To  my  Church  when  I  have  Riaht  to  prefent 

my  (^uare  Impedit  lies  only  againll  the  Incumbent  of  the  Kino-  wichuut 

other  Patron  j  but  in  e\'ery  other  Cale  o): Common  Perfon,  it  mull  be  brought 

againll  the  Patron  and  Ir  cumbent.     Note,  This  was  faid  per  Frowicke 

Ch.  J    tor  clear  Law.     But  Marrow  laid,  He  had  leen  Quare  Impedic 

againlt  the  Incumbent  alone  between  Common  Perfons.     But  Frowicke 

reply'd,  That  he  never  had  in  his  Life.     Kelw.  53    pi  9 

iifnl:  Bp  ^-  J-  ^'\  ^Tsi  ^'''Z^r^H  Incumbent  pleaded,  ^wd  tpfe  Nthd  habet,  mc 

of  Bath  and  ^^'^'T'  ^'(f/'f'^  ^''-  ^jfi  ^'  Prefentattone  Gear  git  Stdenham  MiUtis  not  named 

JSIaunton.      '"  ^"e  VV  rit,  and  demanded  Judgment  of  the  \V  rit  ;  upon  which    the 

The  Cafe      Plaintitf  did  demur  in  Law  ;  And  it  was  argued  for  the  Piaincilf  That 

vasfeifedofi'^P^^'^  be  brought  againll  the  Patron  and  Incumbent,  and  the  pJtron 
a  Vicarage  f'^tb,  pendant  the  Writ,  the  W^rit  Ihall  not  abate  9  H  6  30  It  vvd't 
of  W.  ap-     be,  that  the  Plauniff  did  not  know,  nor  could  tell  who  prefentedt'he  f aid  In 

W.  in  Fee  m  °^  ^ ecelEty  fuch  Pa:  ron  ougnt  to  be  named,  then  if  fuch  an  Ufurper  Aould 
R.glu  of  his  die  beiore  the  W  nt  brougnt,  he  which  hath  Caule  of  Aaion  Luld  be 
D«nry,  and  Remedilefs.  And  by  Anderfon  and  Periam,  the  Writ  is  P-ond  enl.ll 
prefented  P.  for  the  Reafon  afbrefaid.  Le.  58,  pi.  83.  M  ch  32  E  z  m  C  fu^\ 
dSed'and'  ^-  ^'^'°P  ""^  ^^^^^^  ^  ^V-^i-  ivjicn.  32  l^iiz.  ,n  C.  B.  HaU 

leafed  the  Manor  to  the  Eai-I  of  L.  for  Years   who  affl<rnM  It  t^   c:;„  r-   c        j  l 

^.  Sclrskfsai  Firs  ^-^Ef  r=^  -  - -"- -s 

cover'd  againft  him  thft  has  IthinTb    he  Sona^^^  fhe  Patronage  will  ,n  this  C.fe  be  re! 

ftall  be  otfted  thereof,  v.  hen  ^  i'^a   Stnn^er  ™  I' '    P  "o  Kca,on,   that  he  who  is  Patron 

this  Cafe,  hern,ghtbe'mad    P.ny  here  o TdlV    It^C^^^^^^  T'l' '  ^""t  '^^F^^-i^Hy  ^hen.  a,  in 

Plea  uhich  concerned  the  Ri-ht  of  Pa'rona/e    L',d     h..  f  '  '^,'.  ^^""^^'•'''t  could  not  plead  any 

IHould  be  named  in  theVVi^,"    ho  at  clTrnl^nL"..  coulH  p'  ""■'^^^"^'''^  '^at  he  only' 

has  the  Patronage,  and  miHi   <^^fend  theT^ht  thLnf  1  h  K     "^  •''"  f''.^''""^^?'^  '    ^nd  that  he  who 

hentance,  Eftate,  or  Interelf,  ihall  „..  fe  ,Zp,  ty  Z%T.^„T7,i  /  ",  n";  A'  ""^"-^'^  ^^ 
//  nt,  he  r.ced  not  name  the  rightful  Patron  in  th^  Wvi/  "7  •  I  'L°'-'  ^'fi'"''"''-  ^«  ".imd  in  the 
after  the  Plaintift  Hall,  perce  vW  the  Kefo  Ir  1  ^rU  'r  ""''ac^'''  ^"'f''^  '^'^  Books  agree.  And 
fentation  Hla  Vice.  -Sav.    oTs^C    And  ifeZ.f.^     T"'  t^T-'"'''^  '"^  '^'"'^'  ^"^  '"^^  ^is  Pre- 

at  the  End.  S.  C    c ked  Cro    T   ri . ,    JnT  r  r    V  '^'- Z''"^'  "^  ''^'  ^'^J'^'^S'd  flood.    See  . oS . 

Notes. ,  Rep.  z  .  b.  c     s  Th  l  '      ,  "  Tha^h  f  r"!   ^p^  °-ton.-  See  (P!  c)  pi  ,.  in  the 

not  the  Advowfon,  nor  the  P    .on  put  ou^^^ PofeirL  tT    W  >'  ^'""5""".°"  ^'^^  °"'y  ^ecovet'd,  and 

Patron.  Ibid.  26.  b  -  So  where  the  PrrLLj^!//>.-^^^^  ^^■'^''°^"  n^-^^i^g  fhe 

'^  y^^^^icmz  fairon  ct,ed  hejm-e  M  nt  brcght,  the  Writ  is  hcII  brought  a-.in!t  the 


Ini'u.Tibcnt 


Prefentation.  439 


Incumbent  alone.  Ibid  cites  47  E,  5.  11.  :i.  b. becauie  by  the  Statute  25  E.  5.  '•  lie  is  inabled  to 

plead.     Ibid.  27.  cites  PLC.  1 7S.b. 


8.  Quare- Impedit,  in  which  the  Plaintiff  miide  a  Title,  for  that  the -^*»'i"«'-«<^ 
Defendant  was  prefented  upon  a  Summacal  Agreement ;  The  Archbilhop  P  '  '^°'  ^  ' 
pleads,  That  he  claimed  nothing  but  as  Ordinary  ;  and  the  Dctendanc 
Sowton  pleaded  in  Abatement,  tiiat  ihc  P.rtron  is  not  named  in  the  Writ  j 
and  upon  Demurrer  it  was  adjudg'd,  that  he  need  not,  becaule  his  Title 
is  not  in  Queltion,  but  is  admitted,  and  the  King  claims  in  Affirmance 
of"  his  Title  and  Right  but  by  the  Oflence  of  the  Delendant  i  and  the 
Patron  ihall  col  be  put  out  of  Polielhon  by  Recovery  in  this  A6lion,  for 
he  has  had  the  Fruit  of  his  Prefentation  ;  'but  his  Clerk  fhall  be  rcmov'd 
for  his  Simony,  and  therefore  need  not  be  made  Party  ^  per  Charlton  J. 
but  3  Jultices  contra,  who  doubted  becaufe  the  Patron  is  not  only  to  have 
his  Clerk  admitted,  but  likewife  to  continue.  And  Refpondeas  Ouller  was 
awarded.     3  Lev.  16.  Palch.  33  Car.  2.    'The  King  v.  the  Archbilhop  of 


York  and  Sowton. 


(B.  d.  8)     Pleadings.      Co/t;jt. 

I.  T  N  a  Quare  Impedit  the  PlaintifT ought  to  declare^  That   the   Pre-  In  a  Qim-e 
J|[_  lentment  was  made  in  'fnne  of  Peace.     F.  N.  JJ.  33.  (^K)  in  the  T.npedit tiic 
new  Notes  there  (e)  cites  18  £.2.  Quare  Impedit,  ins.  ^^,''*""''^ ',^'^' 

C  •  /^ 

Horner  ivas  ferferl  in  Fee  of  the  Manor  of  Dowling,  to  v/hich  the  Advowfon  was  appendant'  th.it  he 
fye/er.tert  ].S.  who  was  admitted,  inilitutcd  &c,  ti>hi  th:it -di'KVyv :uds  he  granted  the  tlext  W^oJanie  to  the 
PLunti^';  that  J.  S.  died,  and  it  belongs  to  him  to  prefent  ;  and  upon  Demun-er  to  this  Declaration 
it  was  objected,  that  it  was  ill,  becaufe  the  Plaintift  did  not  i^lleo^e,  that  Sir  G.  II.  prefented  I'ewpoi-e  pa- 
ds. And  it  was  admitted.  That  fo  it  ought  to  be,  where  the  Plaintiff  makes  his  Title  by  a  Prefentation 
but  here  the  Tide  is  by  being  feifed  of  the  Manor,  to  whicli  the  Advowfon  i;  appendant  •  and  fo  the' 
Diiterence  is  between  Advowfon  in  Grofsand  Appendant.  And  i-'cr  Cur.  when  one  flievvs  a  Precedent 
Right,  and  then  alleges  a  Prcientation  in  Purfuance  of  that  Right,  as  here  the  Plaintiff  does  in  Sir  G. 
H.  it  needs  not  to  fay  Tempore  Pacis;  otherwilc,  where  no  Title  is  alleg'd,  fo  that  the  Prelcntacion  only 
makes  the  Title.  Mod.  2;g,  Hill.  2S  &  29  Car.  2.  Strode  v.  Bifliop  of  Buth  and  Wells  and  Sir  Georirc 
Horner  .and  Mafttrs.     2  Mod.  1S4.  S.  C.  Sc  P.  ^ 

2.  If  a  Man  recovers  an  Advowfon  againft  another  ///  a  Writ  of  Rip-ht^  -^^  a  Man 
when  the  Church  voideth  he  ihail  prefent ;  and  if  he  bedilturbed,  helhail  '^^■*"  ^-'•'^  ^ 
have  a  Quare  Impedit,   and  allege  the  Prefent ment  in  him  agaiiiji  whom  he  >^^^^  impe- 
j-fcowre//,  without  alleging  any  other  Prefentment.      F.  N.B.  33.(1)         kfe  a\n-' 

JentDient  by 
his  ProBor,  and  it  fhall  be  good,  wuhoat  alleging  a  Prefentment  in  Iiimfelf.    F.  N.  B.  5-.  (1)  cites 
17  E.  3, 


tes 


3.  In  Quare  Impedit  the  Plaintiff  6W/;;/«?^o/"  a  Prefentation  in  the  'time  Br.  Double. 
of  his  Preiiecefor,  and  another  in  the  King  'ujbo  feifcd  by  reafon  of  the  War  P'  ''^'  ^7'' 
betisetn  him  and  France,  and  that  he  icas  refior'd.  and  well ;  for  the  lait  „  r  ~  "^^  ^ 
Prefentment  did  not  make  himTitle,and  alio  he  ought  to  make  Mention «^-  the  Gaai 
of  tlie  lall  Prefentment.      Br.  Quare  Impedit,  pi.  19.  cites  40  E.  3.  10.      dian,  this 

does  not 

make  Title,  and  yet  he  ought  to  make  count  upon  it.    J3r.  Quare  Impedit,  pi.  i9,cit?s4oE9    10. 

By  which  the  DrjerJ.ir.t  faid.  That  JF.  ivas  Jeifed  of  the  Manor  of  D  wtth  this  JdiKifM  apjinidar.t,  and 
■prefented,  ^le  /if  ate  he  has,  Jbfcjue  hoc  that  the  Jdzowfon  is  in  Grofs,  I'rijl  ;  and  the  other  that  is  in  Gro/s, 

Prift.   Ibid  But  by  20  E.  4.   1  V  and  21  E.  4.  I.o.  a'/^cre  hcth  Claim  by  one  and  the  fanre  Perfon,  the  one 

as  Jppend-wt,  anii  the  other  in  Grcfs,  there  the  .^ppendancy  pall  he  travers'd;  but  where  thev  cl.iim  ly 
feveral  Perfons  the  Prefentation  jhaii  be  trawrs'd,  and  therefore  the  Law  feems  to  be  where  it  is  in  G.-oii, 
as  in  the  prefent  Cafe.    Br.  Quare  Impedit,  pi.  19.  cites  43  E,  5.  lo. 

4.  Quare 


44^  Prcfentation. 


4.  Quare  Impedit  by  the  King,  Quod  permittac  ipfum  Prefcntan  cj 
Prebcfidnm  vccnt.  Major  Pars  Jit  an  s  in  Ecckjia  de  Sarim  ;  and  bccaufe  he 
did  notjheiv  tii  "what  Church  in  Saruni,  nor  of  what  Saint ^  nor  in  what  Sa~ 
rum,  Qor  there  are  two  Sarums)  therefore  ill.  Br.  Qiiare  Impedit  pi. 
20.  cites  40  E.  3,  17.  ' 

5.  Chaare  Impedit  by  the  King,  who  counted  during  the 'Time  that  the 
Ti'ji/pora/ties  zvtre  in  the  Hands  of  the  King  ^  the  Dclendant  demanded 
Judgment  ol'  the  Count,  becaufe  it  is  not  (bcwn  for  what  Caufi  they  were 
jeilcd  into  the  Hands  of  the  King ;  et  non  Allocatur.  I^r.  (^uare  Impe- 
dit, pi.  23.  cites  42  E.  3.  7. 

6.  Quare  Impedit  by  the /w//^^,  ^nd  counted  that  B.  was  fcifed  of  the 
Manor  with  Jdvowfon  appendant^  and  prcfcntcd  ;  and  fran  B.  the  Manor 
o.x\iX  h(\\ow{ow  dfccnded  to  E.  and  from  E.  to  R.  who  now  is  in  Ward  of 
the  King,  and  the  Church  voided,  and  the  King  prefented,  and  the  De- 
lendant  difturbed  himi  The  Defendant  faid,  That  there  never  wasfitcbE. 
tn  rcrum  jSiaturje,  et  non  Allocatur  j  lor  this  is  a  Milprilion  in  the  Melhe 
Con\  eyancc.  Contra,  f  he  had  mifiahn  the  Name  of  B.  or  R.  now  r,t 
Ward;  for  thofe  are  material,  quod  nota  ;  and  therefore  the  Writ  o-ood. 
Er.  Quare  Impedit,  pi.  26,  cites  43  E.  3,7. 

Js  Quare  r,.  in  Quare  Impedit  the  King  counted  upon  twoPrefentmcnts^  by  which 

tl^e^Kir-  J    ^^'^'^  Defendant  pleaded  it  in  Abatement  of  the  Count,  et'non  Allocatur ;  Con- 
re.xjw  of       ^'"'5  in  ^■'ife  "/  ^  Common  Per/on.     Er.  Count,  pi.  27.  cites  43  E.  3.  14. 


ff'.ird,  he 

counted  of  Prefentiner.t  in  tie  Grandfather  of  the  Tnfant,  and  of^  another  Prefentment  in  himfelj',  hy  renfon  of  the 
Qfflody  &c.  and  the  Defendant  faid.  That  the  Grandfather  of  the  Infant  tvajfeifed,  and  prefented,  and  ^a-je 
the  Jdvovfcn,  and  a  Manor  to  'which  it  ivas  appendant,  to  Al.  and  her  Baron  in  T\vt  :  and  the  Barcndied 
and  tie  Church  voided,  and  M.  prefented,  and  yet  the  King  had  Writ  to  the  Bifliop  for  Default  of  M  at 
another  Day  ;  but  it  was  held  there,  that  the  Plea  of  M.  is  no  Plea,  becaufe  llie  did  not  deny  the  Prefem- 
ment  of  the  King  upon  her.     Br.  C^uare  Impedit,  pi.  29.  cites  49  E.  3.   14. 

Br.OmiOIon.  8.  In  Quare  Impedit  the  Plaintiff  counted  that  F.  was  feifed  of  a  Manor 
P  .^.  cues  ^j^jy  ji^g  Jd-vuwjon  appendant,  and  pi-tfentcd,  and  made  their  Dtfcentfrom 
F.to  R.  and  from  R.  to  F.  und  from  F.  to  F.  now  Plaintiifi  and  the  De- 
fendant alleged,  that  W.  was  feifed  and  prefented,  and  it  defended  to  T.  who 
prefented,  and  from  t.  to  W.  who  prefented,  and /row/  W.  to  the  Defendant^ 
and  the  Plaintiff  voided  the  one  Prefentment  hy  the  Nonage  f  F.  and  the  other  2 
hy  the  Nonage  of  another  F.  and  xhQ  Defendant  allegd  Omi/fion  in  one  who  was 
Elder  Brother  to  F.  thro'  whom  the  Defcent  is  made.  J  udgment  of  theW^rit 
and  the  Writ  awarded  good,  notwithltanding  an  Omiriion<n/o/;f  Mefnein 
the  Conveyance  in  this  Aftion.  Contra,  in  \V  rit  of  Right ;  and  it  may 
be,  that  he  in  whom  Omilhon  is  alleged  was  never  feiied,'and  therefore 
the  Writ  awarded  good.  Brooke  fays,  It  is  a  VA'onder  that  ail  the  Pre- 
fentments  alleg'd  by  the  Defendant  were  fufier'd  ;  for  it  feems  to  be 
double  at  this  Day,  and  alfo  it  ieems  that  he  ought  to  have  traverfed  the 
Appendancy  allegd  liy  the  Plaintiff.  Br.  Quare  Impedit,  pi.  32,  cites  44 
E.  3.  21. 

9.  Quare  Impedit  by  two  Coparceners,  and  counted  that  their  Ancefiw 
was  feifed  of  the  Ma  nor  of  D.  to  zvhich  the  Advowfon  is  appendant,  and  pre- 
fented F.  his  Clerk,  who  -was  injiitiited  and  rnd tiffed,  ana  made  the  Defcent 
to  them  ;  the  Chtirch  voided,  they  prefentrd  B.  who  was  injlitiired  and  in- 
duced ;^  and  the  Church  voided,  and  fo  it  bclong'd  to  them  to  prefent ; 
and  {o  fee  they  alleg'd  two  Prefentments,  and  yet  it  is  not  challcng'd  lor 
doijble  i  and  the  Reafon  feems  to  be,  that  thev  ought  to  allege  one  in 
their  Anceflor  for  Title,  and  then  ought  to  (peak  of  the  other  which 
they  themlelves  made,  and  one  of  the  Plaintiff's  was  fitmmon'd  andfever'd; 
and  the  Defendant  faid,  that  foe  who  was  fwmnon'd  and  fever' d  abend  her 
Part  to  her.  Judgment  of  the  Writ^  And  after  ihe  laid,Tiiat  Hie  alien'd 
her  Part  ol  the  Land  and  Advowlon  before  the  Voidance,  and  before  the 
Writ  brought  i  And  the  Plaintiris  laid,  Tliat  they  were  feifed  of  the  Ad- 
vowfon in  Common  the  Day  of  the  Writ  purchafed,  Abfque  hoc  that  foe  alien  d 
before  t foe  Avoidance.     Br.  Quare  Impedit,  pi.  52.   cites  11  H.  4.  54. 

10.  Qu;ire 


Prcfentation.  ^4.  i 


10.  Quare  Impedir,  and  counted  of  a  Tail  of  a  Manor  to  his  Grandfather, 
to  •'xbich  the  Ad-vo-zvfoJt  ivas  appendant^  and  that  his  Father  dtfcontiiitted  two 
Parts  of  the  Manor  and  the  whole  yidvoivfn^  and  that  theR'ght  f  two  Parts 
cftke  Manor  and  the  Ad'oowfon  defcendcd  to  him  as  Heir  in  'Taij,  and  Ihevv'd 
How  i  and  an  ill  Count ;  lor  the  Right  of  two  Parts  otthc  Manor  and 
the  Advowfon  in  PolfcHion  cannot  dclcend  ;  by  which  he  laid,  That  the 
Right  vl'  two  Parts  of  the  Manor  and  of  the  Aivoivfon  defcendcd  to  him, 
and  then  well.     Br.  Quare  Impedit,  pi.  78.  cites  19  H.  6.  30. 

11.  If  the  Declaration  be  AdiniJIas  ct  InfialL-ittis^  without  nwre^  it  fli.ill 
abate.     Br.  Quare  Impedit,  pi.  83.  cites  22  H.  6.  25. 

12.  In  Quare  Impedit  the  PlaintillVy///;/^//-/^.'??  A.  was  feifd  of  the  Ad- 
vow  fon  as  of  Fee,  and  he  took  A.  to  Feme ;  and  the  Church  voided,  and  he  m 
Right  of  yJ.  prefented  and  had  Ilfue  and  died ;  and  the  Church  voided  again, 
and  he  prefented  j  and  by  the  Opinion  of  the  Court,  becaule  thtifeccnd  Pre^ 

fentment  is  not  alleg'd  in  Right  of  the  Wife,  therefore  ill ;  by  which  he 
amended  his  Count ;  quaere  Librum.  Br.  Quare  Impedit,  pi.  8.  cites  2S 
H.  6.  8. 

13.  Where  the  Plaintiff  cw/^rj  offeveral  Prefentments  to  an  Advowfon 
in  Grofs,  this  is  not  double  ;  For  none  of  them  is  traverlable  but  the 
lalt  ■■,  For  this  malces  the  Pollellion ;  and  if  the  lafi  Prefentment  be  omit- 
ted, the  Defendant  may  plead  it  to  the  Count.  Br.  Quare  Impedit,  pi. 
II.  cites  33  H.  6.  32. 

14.  In  Quare  Impedit  the  Plaintiff  made  to  h\m.{c\^ 7'itk,  becaufe  ^''-Cou'it, 
King  H.  4.  was  feifcd  in  his  Deiuefne  as  of  Fee  and  Right  of  the  Advow-  ^'q  '■""^' 
ion  in  Grofs,  and  granted  Scc-  and  did  not  (hew  whether  he  was  feifed  in 

Right  of  the  Crown  or  by  Purchafe,  or  by  the  Date  by  &c.  and  yet  good, 
per  Cur.  for  there  is  no  other  Form,  and  lee  that  it  is  laid  /';/  Demefhe  of 
Advowfon.  Br.  Plearimgs,  pi.  12.  cites  34  H.  6.34. 

15.  In  Quare  Impedit  the  Plaintiff  o/(f>^;  to  allege  Prefentation,  and  it 
is  not  fufficient  to  plead  a  Recovery  without  it  ■■,  becaufe  it  may  be  that 
the  Recovery  was  againlt  a  Deforceor  who  claimed  nothing  in  the  P.i- 
ironagei  but  Writ  of  Right  of  Advowfon  does  not  lie  but  agaiult  the 
Patron  i  per  Prifot,  Br.  Judgment,  pi.  51.  cites  39  H.    6.    23.  „  -pi 

16.  He  \^'ho  has  a  Donative,  or  ought  to  make  Collation,  and   is  dif-  nukes  Colla 
turbed,  Ihall  have  General  IVrit  of  Quare  Impedit  ^lod  permittat  ipfum  tion,  and 
Prefcntare,  and ihall  have  fpecial  Count;  for  tliere  is   no  other  Form  of  "'"-'■'"<" pf^- 
Writ.  Br.  General  Brief;  pi.  24.  cites   New  Nat.  Brev.   fol.  33.  (C)  ^'5 •  ^''''^  P'- 
and(D)  ^^• 

17.  The  Queen  brought  a  Quare  Impedit  upon  the  Statute  13  Eliz. 
cap.  12.  which  enacted,  that  no  Perfon  Ihall  be  admitted  to  a  Benefice 
with  Cure  &c.  except  he  fubfcribe  the  Articles  of  Religion,  and  that  all 
Admiffions  and  Induclions  ocherwile  flaall  be  void  i  The  Church  re- 
mained void  for  two  Years,  and  then  the  Queen  prefented,  but  in  the 
Count  it  was  «(??  <^//rf^r/,  that  the  Church  to  which  the 'Deiendant  was 
prefented  was  a  Church  with  Cure  ;  and  upon  Demurrer  to  the  Declara- 
tion it  was  held  iJl.  And.  62.  pi.  136.  Trin.  24  Eliz,.  The  Queen  v.  the 
Bifhcp  of  Lincoln  and  Cock. 

18.  Quare  Impedit  lies  to  prefent  fo  two  Parts  of  the  Church  of  ^c. 
fcr  in  a  Church  there  may  be  feveral  Portions  to  which  Prefentationa 
may  be  made;  as  A.  may  have  the  ilt.  B.  the  2d.  and  C.  the  3d.  Part, 
and  divers  Patronages  and  Advowfons  thereof,  and  if  dilhirbed  may- 
have  Quare  Impedit,  and  declare  of  a  Scilin  of  the  ill.  or  2d  or  3d. 
Part,  as  the  Cafe  requires.  And  therefore  the  Plaintitt  in  the  principal 
Cale  having  declared  that  f.  S.  was  feifcd  of  the  Advowfon  of  thefaid  two 
Parts  of  the  Church  afore fiid,  and  prefented  ^c.  All  the  Judges  licld  the 
W  rit  good,  and  well  maintained  by  the  Declaration  ;  But  il  he  had  not 
declared  of  the  Seifm  of  the  Advowfon  of  the  two  Parts,  but  that  the 
Declaration  had  been  (that  he  was  feifed  of  the  two  Parts  and  prefented') 
according  as  the  N\" rit  mentioned  it,   the  Writ  and  Declaration  would. 

sT  be 


44-2 


Prefentation. 


be  abated.  2  And.  23.  pi.   16.  Pafch.   57  Eliz.  Stanhopp    v.    Bilhop  of 
Lincoln, 


(B.  d.  9)    Quare  Impedit.      Pleas.     Good  in  Gcmral 

Br.  Aliena-    i.  QUARE   Impedit  by  the  King;  the  I'enant  of  the  King  had  Ijfue 
"""'J''^"  ^^  three  Daughters  and  died,  and   the  Tenements  came  to  the  Kingly 

his  Prerogati've,  and  Partition  was  made  in  Chancery,  and  this  yid-voivfon 
allotted  to  the  one  icho  took  Baron  and  had  Iffiie  and  died,  and  the  Iffue 
ivithin  uige  and  in  Ward  of  the  King,  and  the  Prebend  voided,  and  the 
King  prej'entcd.  The  Defendant  faid,  that  after  this  the  three  Daughters 
made  Partition  to  prefent  by  'Turn,  and  that  the  firji  had  her  Turn,  and  afl 
ter  zhefctond,  and  the  third  took  the  Defendant  to  Baron,  and  had  Iffiie  and 
died,  and  this  Voidance  nvjo  belongs  to  him  as  Tenant  by  the  Ciirtefy,  and 
peived  the  Comfojition ;  and  becaufe  by  the  firlt  Partition  in  Chancery 
the  King  was  alcertained  ol  his  Tenant  of  Record,  and  this  new  Par- 
tition,zvithout  Licence  of  the  King,  is  an  Alienation  in  Law  without  Licence^ 
therelore  Judgment  proRcge^  P"or  it  was  agreed,  that  though  Parti- 
tion be  made  between  Parceners,  yet  they  are  in  by  their  common  An- 
celtor,  and  may  vouch  as  Heir,  and  have  every  one  Advantage  as 
Heir,  yet  by  the  Partition  in  Chancery  the  one  was  ible  Tenant  ot  the 
Advowfon,  and  by  the  laft  Partition  to  prefent  by  Turn  all  are  Tenants 
thereolj,  and  Writ  ot  Right  of  Advowfon  ihall  be  brought  againlt  all, 
and  before  again  the  one  alone,  and  io  the  King  has  a  Stranger  to  his 
Tenant  ;  Quod  Nota;  and  therefore  the  King  recovered.  Br.  Quare 
Impedit,  pi.  73.  cites  21  £.  3.  30,  31. 

2.  Quarclmpedit  by  the  X?;/^,  and  made  Title  by  Non-age  of  T.  Son  of 
B'\E'^^PP^J' 7.  ?F.  and  the   Church  voided,  becaufe  M.H.  the  hicimbent  thereof, 
p. ^5.  cues   ^^^  f.Yf.ated  Bipop  oi  E.     Mombray  laid,  the  Church  did  not  void,  the 
Advowfon  being  in  the  Hands  of  the  King.     But   ISorton  faid,  to  this 
he  Hiall  not  be  received,  and  pleaded  certain  Eflof>pel  that  the  King  had 
certified  the  time  of  the  Se  if  lire,  and  the  Age  of  the  Infant,  and  what  Day  H. 
was  fworn  Bifiop  of  E.  and  that  a  certain  Year  the  Bifliop  was  Trcafur- 
erofthe  King,  and  Commiffion  made  to  him  by  Name  ot  Bifhop  ot  E. 
to  go  in  a  Mefiage  of  the  King  to  Rome,  and  Ihewed  Record  which 
proved  the  Tenure  and  the  Age  of  the  Infant,  and  that  he  at  Requeft 
of  the  Great  Men  had  received  the  Homage  of  the  Infant,  and  made 
him  Livery  within  Age;  and  there  it  is  agreed,  that  where  the  King 
makes  Livery  to  the  Infa?it  within  Jlge  generally.   Fees  and  'Jdvowfons  do 
not  pafs  withotft  ipccial  Words  ;  but  contra  of  Livery  made  at  full  Age, 
and  upon  the  Livery  made  within  Age  above  were  no  fpecial  Words  of 
Fees  and  Advowfons,  by  which  it  was  awarded,  that   the  King  have 
Writ  to  the  Biihop.     Br.  Quare  Impedit,  pi.  74.  cites  21  E.  3.  39,  40. 
Br.Qiiare         3-   In  Quare  Impedit,  the  King  made  Title  to  prefent  to  a  Prebend,  he- 
Impcdit,  pi.  caufe  the  Temporalties  of  the  Bifhop  were  in  his  Hands  by  reafonof  the  Death 
%'^^^^^^^-of  R.late  Bipop  &c.     The  Defendant  faid,  Thut  Ne  voida  pas  the  Tem- 
poralties being  m  the  Hands  of  the  King  by  the  Death  of  R.  this  is  a  Preg- 
nancy; ibr  it  fuffices  for  the  King  if  it  be  in  his  Hands  by  any  other 
Caule.  Br.  Negativa&c.  pi.  26.  cites  24  E.  3.  $$. 

4.  In  Quare  Impedit  the  Defendant  ihall  not  have  his  Age  ;  nor  Pro- 
teCtion  nor  Kffoign  de  iServicio  Regis  does  not  He,  nor  fuch  Dilatories,  be- 
caufe the  Lapfe  Ihall  not  incur.     Br.  Quare  Impedit,  pi.  1 16.  cites  43  AlK 
21.  per  Thorp  |. 
Rr.  Quare         5-  The  Plaintiff'  intitled  himfelf  by  Prefentation  by  A.  who  granted  to 
Impedit,  pi.   him,  and  the  Church  voided,  and  he  prefented,  and  the  Defendant  dif- 
46-citesi.C.  f,,..i;ji 


Prelejitation.  4^^:^ 


turbedhim  ;  and  thcDcfmdaut  fnid^-that  afttr  this  Prefentmenty^.  was feifed 
and  pycffiited  ^c.  and  granted  the  yidvoivfv/i  to  the  Deftndant,  and  the  Church 
•voided,  and  he  frefented  ;  and  well^  without  Iheiving  How  A.  came  to  ic 
again  after  his  firll  Grant.  Br.  Conlels  and   avoid,  pi.  lo.  cites  3  If. 

A-^S-  .  ,.      .   . 

6.  In  a  Quare  Impcdit  by  the  King  it  is  a  good  Plea  topew  that  fitch  *  Quxre 

a  one  was_  jeifcd  and  prefented,  and  the  Inciiitibent  admitted  atid  tnfiitnted^^^^'*^^'"' 
and  diedy  and  the  Patron  *  [prefcntedl  this  InctimLe/it  who  ivas  admitted  and  r;'(Jok  and 
injittiited,  in  whofe  Polfellion  the  King  by  his  Letters  Patents  which  he  Fit/.h.th. 
ihewed  ratified,  and  confirmed  his  EJi ate i  Judgment  it' the  King  will  Qua.  Imp. 
impeach  him,  :md<i  good  Plea.  Br.  Quare  Impedit,  pi.  61.  cites  14H.  4.  36,  '-^'  l'-"^"' 

7.  In  Quare  Impedit  it  was  agreed,  that  a  Chantery  may  be  founded  "°'  ^      ' 
without  the  Aflent  or  Licence  of  the   Ordinary,  and  where  the  King 

made 'title  Ij  the  T'emporalties  of  the  Bi /hop  of  L.  to  the  Chant eries  of  St. 
yt  in  O.  the  Defendant  /aid,  that  he  and  his  Ancefors  time  out  of  Mind 
have  been  Patrons  of  a  Chantery  of  St.  t.  in  the  fame  Vtll.,  and  alleged  Pre- 
fentment  in  his  Ancertor,  abfqtie  hoc  that  this  A.  by  ichcm  the  King 
claims  founded  any  Chantery  there,  and  no  Plea,  becaufe  he  did  not  plead 
cf  the  fame  Chantery  ;  For  it  may  be  another  Chantery  for  any  thing  that 
is  contained  in  the  Plaint  ol"  the  Dciendant,  and  if  the  Defendant  had 
pleaded  that  No  fuch  Church  in  the  fame  County,  there  the  Plaintiff 
ihould  ha\'e  had  Writ  to  theBilliopi  Per  Cur.  Quod  Nota.  Br.  Quare 
Impedit,  pi.  5.  cites   9  H.  6.  16. 

8.  In  Q^uare  Impedit  the  Defendant  prayed  ./^/V/  of  the  King,  and  had 
it  upon  Charter  jkeicn,  in  lieu  of  Voucher,  and  yet  it  was  agreed,  that  it  is 
an  Action  which  does  not  die  with  the  Perlbn  ;  For  the  Heir  Ihall  not 
have  A6lion  of  Dillurbancein  the  timeof  his  Father  ;  and  it  was  agreed, 
that  a  Man  cannot  vouch  a  Common  Perfon  in  Quare  Impedit,  /•///■  Jhail 
have  IVarrantia  Chartx,  and  in  lieu  ol  this.  Voucher  of  the  Kingi  for 
Action  does  not  lie  againft  the  King.  Br.  Qiaare  Impedit,  pi,  7.  cites 
9H.6.  56. 

9.  In  Quare  Impedit  the  Defendant /(//V/,  tii.it  the  Incimilent  was  pre- 
fented, living  the  other  Pncnmbent,  and  lo  is  in  by  Spoliation.  Br.  Quare 
Impedit,  pi.  13.  cites  33  H.  6.  26.  in  a  Note. 

10.  It  I  grant  the  next  Prefentatinn  to  J.  N.  which  he  enjoys  accordingly, 
there,  xi at  anot>'er  Voidancc  the  Grantee  dijlurbs,  and  alleges  the  lafl  Pre- 
fentment  in  himfcif,  the  Grantor  may  confejs  and  avoid  it,  by  Reafon  that 
it  was  but  Ibr  one  Turn  only.  Br.  Contels  and  Avoid,  pi.  49.  cites  13 
E.  4.  2. 

11.  If  a  Man  pleads,  or  otherways  (Iiys  that  fuch  a  Church  is  void,  he 
might  to  pew  How  it  voided,  viz.  By  Re/ignation,  Death,  or  otherwife  bv    . 
Deprivation  dec  For  if  it  voids  by  Death,  it  iliall  betry'd  Per  Pais  ;  and 

if  by  Deprivation,  ReJignation,  Creation,  or  otherwile,   this  Voidance  ■ 

fliall  be  tried  by  the  Ordinary.  Br.  Quare  Impedit,  pi.  85.  cites  15  E. 
4.  25.  Per  Jenny. 

12.  Quare  Impedit  by  the  Lord  H.  and  M.  his  Feme,  againfl  the  Bi- 
fiop,  IK  H.  and  others,  and  counted  that  certain  Perfons  were  fei fed  of  the 

Advowfon  in  grofs  to  the  Ufe  oj  the  Plaintif's  and  the  Heirs  of  the  Feme, 
who  granted  the  Advowfon  to  R.  who  granted  the  Advowfon  to  the  Plain- 
tiff and  the  Heirs  of  the  Feme,  and  Ihew'd  Prefentment,  and  that  the 
Church  voided  &c.  And  the  Bijhop,  the  Patron,  the  Incumbent,  and  all 
the  others  joiu'd  in  Plea,  and f aid  that  the  f aid  Feoffees  were  fei  fed  to  the  Ufe 
of  the  f aid  W.  H.  and  his  Heirs  Males,  and  that  they  prefented  abfque  hoc, 
that  they  were  fei  fed  to  the  Ufe  of  the  Lcrd  H.  and  his  Feme.  And  Per 
Keble,  The  Plea  is  not  good,  inalinuch  as  the  Patron,  Bilhop  and  In- 
cumbent have  join'd  in  Plea  where  they  ought  to  have  fcver'd  ;  and  alfb 
he  laid  that  the  Feotibes  were  feis'd  to  the  Ule  of  \V".  H.  in  Tail,  and 
does  not  Jbew  the  Commencement  ofh,  inalinuch  as  it  is  of  a  fpecial  Fflate, 

and 


444  Prefentation. 


and  iillb  IV.  H.  has  pleaded  to  tbe  Ri;^ht  of  the  Patronaoe,  zvkcre  it  appears 
thur  he  is  )ivt  Patron ;  and  therefore  ought  tn  have  Jaid  that  Ne  dijlurba 
pas.     Br.  Quare  Inipedit,  pi.  165.  citesisH.  7.   18. 

13.  K ^'Joi}itc!iants  hriiig  ^iiare  Impedit,  and  the  one  will  not  fue,  he 
fliall  hefummoii'd  and  fez'e'r'd ;  but  if  he  will  vaiy  in  T'ttk.^  there  the  Writ 
Jhall  abate  liitboat  Remedy  ^  lor  then  it  appears  that  they  have  join'd  up- 
on feveral  Titles  5   quod  nota.     Br.   Q^uarc  Inipedit,  pi.  2.    cites  26 
H.  S.  5. 
Le.  194  pi-        14.  In  aQuarc  Impedit  the  Plaintiff  declared,  that  thf:  Church  was 
Z78.  Midi.    Yoid,  and  that  the  Defendant  dilturb'd  him  to  prelcnt ;  the  Delendanc 
tV^  r  V<     ple^'-l'-'d,  that  the  Church  was  void  by  Acceptance  of  another  Benefice  with 
Arunad  v.     Cure  &c.  and  that  therehy  the  Right  oj  Prefeiitation  devohedto  the  .I^uceu  by 
Bifliopot       Lapfe,  upon  Detault  of  the  Ordinary  and  Metropolitan  &c.  and  thatj/je 
Glouteller     prefented  the  Defendant,  who  zvas  Admitted  and  Induffed  ^  and  upon  a  De- 
and  Lhaffin.    j^^^.j-^j.  ^Yiq  Court  fiid  that  every  Writ,  Declaration  and  Action  ought 
fcen'.s  w  be    to  l>e  anfvver'd  by  Way  of  Plea  ;  that  in  this  Cafe  the  Plaintiff  alleges  a 
s  C.  andthe  Dillurbance  by  the  Defendant,  which  is  not  any  how  anfwer'd  i  for 
Pica  was        when  the  King  prcfents  &c.  pending  the  Writ,  this  can  be  no  Anfwer 
hdd  'n'"'f-^    to  the  Aftion  or  Grief  of  the  Plaintiti'done  to  him  before.    Whereupon 
thcl'lVinnft  they  gave  Judgment  for  the  Plaintiff     And.  238.  pi.  255.  Stanley  v. 

cowtled iipn ii  Chaffiu. 
a  Dijiiirluim  e 

to  l:im  \li  Nvveinl>er,  and  the  Defe)idir>it  intitkii  Im.filf  to  an  hicuniber.cy  iff  May  after;  fo  that  the  Di- 
fturbance  let  tbnii  in  the  Count,  is  not  aniwered  by  Traverle,  nor  confelj'd  nor  avoided  ;  for  the  Di- 
lluibancc  whereof  the  Plaintiff  declared  is  confcls'd.  Afterwards  it  was  mov'd  that  the  Qiicen  might 
liuve  Writ  to  the  bifhop,  becaufc  her  Title  appears  to  be  by  Lapfe,  which  is  confefi'd.  But  the  tvhole 
Court  were  clear  of  Opinion  againft  it  ;  for  tho*  it  appears  that  he  was  lawfully  prcfcntcd  to  the  f,id 
Church    and  lb  once  lawful  Incumbent,  yet  it  appears  alio.  That  the  i^teen's  Title  is  once  executed,  and 


bencv,  Jl'f  JoiW  mt  prefetif  again ;  othcrwilc  it  had  been  if  fhe  had  been  Patron.     And  afterwards  the 
Plaint'm  huda  VNrit  to  the  Bifliop. 


Sec  (Q_  a.  2)  (B.  d.  I  o)     Pleading  Pknarty. 


I. 


13  E.i.  T7NACTS  that  from  henceforth  one  Form  of  PleadingyZW/ 
By  the  Com-  ^i^p  ^_  f*^  be  obferved  among  J  u  ft  ices  in  IFrits  of  Darrein  Prcfentment 
mon  Law  ^^^^  ^iiare  hnpedit,  tn  this  Refpeff  if  the  Defendant  'allegeth  Pknarty  of  the 
before  ^t'he  Church  of  his  oivii  Prefentation,  the  Plea  JJjall  not  fail  by  Reafon  of  the  Ple- 
Writ  of       narty,  fo  that  the  Writ  be  purchas'd  within  6  Months,  tho'  he  cannot  r&- 

Qiiare  Impe-  ^oi'er  his  Prefentation  within  the  6  Months. 

dit  brought, 

was  a  pood  Plea,  but  Plenarty  hanging;  the  Writ  was  no  Bar  at  the  Common  Law  ;  but  now  by  this 

Statute  Plenarty  is  no  Plea  in  a  Qiiure  Impedit  or  Darrein  Prefentment,  unlefs  it  be  by  the  Space  of  fix 

JNIoiiths  before  the  Qunre   Impedit  brought  ;  for  if  the  ri<;htKil  Patron  bring  his  Action  within  t!ie  5 

Months,    it  is  maintainable  by  this  Statute,  which  fhort  Purview  doth   remedy  many  Mifthiefs  at  the 

Common  Law.    2  Intl.  560. 

But  this  Act  doth  not  hiyid  the  King;  for  Plenarty  by  the  Space  of  fix  Months  is  no  B»r  againft  him,  but 
he  may  have  his  Qtiare  Impedit  when  he  will  ;  for  Nullum  terapus  occurrit  Rcgi.     z  Inft.  561. 

But  fome  have  taken  a  Diveiftty  ■when  the  King  claimeth  the  Advow^on  in  his  own  Ri;^ht  in  fure  Cc- 
rov£,  and  ivlen  he  claimeth  it  in  the  Right  of  a  SiihjeH  ;  for  then  he  fhall  not  be  in  better  Cale  t'lan  the 
Subicft  was ;  As  where  the  King  was  intitled  to  prefent  in  the  Right  of  a  Ward,  and  one  did  ufurp, 
and  the  Church  was  full  by  the  Space  of  fix  Months;  and  it  was  adjudged  within  12  Ys.'-rs  after  the 
Waking  of  this  Act,  that  the  King  by  this  Plenarty  was  barr'd  of  this  Quare  Impedit ;  bat  (Ince  that 
Time  the  L«w  hath  been  otherwile  taken.     2  Inft.;6l. 

Plenarty  by  6  Months  againft  the  ^<een  is  a  good  Plea,  /ilbeit  f:e  cl.iim  the  Advowfon  by  the  King's  /;;• 
ctcii'tnent.     ilnft.  ;()i. 

And  yet  in  All  Cafes,  Plenarty  by  fix  Months  is  no  Plea  in  a  Quare  Impedit ;  [As]  if  an  Advowfon  be 
alien'd  in  Mortniain,  and  the  (Church  becomes  void,  and  a  Slra»:fer  ufurp,  and  his  Clerk  is  in  by  fix 
Mouths,  \et  the  immediate  Lord  jhall  have  a  ^tare  IniHc.it  within  the  i«/»i- ;  for  the  Statute  of  ;  E.   i. 

De 


Prefentation.  44.5 


DeRcli^iofis,  givctli  liim  ;i  Year,  and  the  immcJiiitc  Lord  li.ilf  a  Ycjr  after  Sec.   and  for  that  Cuulc 
alio  no  Dcicciit  ot  Lands  in  the  mean  Time  Hull  take  away  his  Entry,     z  Inll.  561. 


(B.  d.  11)     Pleadings  by  the  Bifiop. 

I.  /^UARE  Impcdic  by  Sir  J.  Denhain  a^ainji  the  Bipop  of  E.  and 
^-  T.  Ch^non,  and  counted  that  the  Ad'M--x\on  0/  the  Abbey  of  St.  Edes, 
•wa^  Appendant  to  his  Alaiwr  oj  Hatlaiid,  and  that  Ji'.  his  Father  prefeiited 
one  B.  Chanon  of  the  Ahiey^  icho  oj  his  Prefentinent  "Xas  Aduiitted  and  lnfti~ 
tuted,  and  convey' d  the  Manor  to  him  by  De/lent,and  that  the  Abbey  voided  by 
the  Death  o/'B.  and  he  prefented^  and  the  Defendant  di/iiirb'd  him  i  the  Bi- 
jhop  faid  that  by  the  Foundation  the  Abbot  is  elecfive  by  the  Prior  and  the 
Monks  who  prefent  hnn  tn  the  Bijhcp,  and  he Jhall  exainine  and  admit ^  and  it' 
he  be  able,  then  theBilhop  fhall  admit  and  inllal,  and  put  him  in  corpo- 
ral Polleffion,  and  that  the  yibbcy  voided  by  the  Death  of  B.  and  they  ebjcted 
C.  and  he  upon  the  Prefenrment  ot  him  made  to  him,  examined  and 
ibund  him  able,  and  admitted  and  inlhiU'd  him  &c.  and  lb  claimed  no- 
thing but  as  Ordinary  ;  Judgment  if  without  fpecial  Dilturbance,  Tort  &c. 
It  ia  no  Plea  zvith.ut  traz-er/iug  the  'Title  of  the  Plaint  if  ^  lor  -ivhere  he  jhe-jos 
Title  in  Dejlniilton  of  the  title  of  the  Plaintiffs  he  ought  to  traverfe  &c.  or 
confefs  and  avoid  the  Title  of  the  Plaintiff,  notwithjlauding  that  he  claims 
nothing  but  as  Ordinary ;  by  which  afterwards  hetravers'd  abique  hoc,  that 
the  faid  B.  was  admitted  and  injhtntcd  by  the  Bifhcp  of  E.  at  the  Prf eminent 
of  IV.  Father  oJ  the  Plaintiff ;  and  the  other  e  contra.  And  per  Port, 
The  Bilhop  as  Ordinary  cannot  plead  any  Plea  which  touches  the  Right  of 
the  Patrofiage,  but  a  Di/lurber  tnay,  and  here  t!ie  Bilhop  is  Dilliirber  ;  for 
it  appears  that  the  Plaintiff  prefented  to  him,  and  alfo  the  Prior,  and  he  ac- 
cepted the  Prefentation  of  the  Prior  without  inquiring  De  Jure  Patronatus, 
and  therefore  a  Diilarber,  quod  Newton  and  Pallon  conceilerunt,that  he 
ought  to  ha\e  inquir'd  6vc.  as  well  as  between  two  Patrons.  Br,  Quare 
Impedit,  pi.  83.  cites  22  H.  6.  2$. 

z.   Quare  Impedit  was  brought  by  H.  againft  B.  and  the  Bilhop  and  Br.  Tra- 
the  Incumbent,   and  counted  that  he  was  feijed  of  the  Advowfun  as  in  grofs,  verfe  pci- 
and  this  as  of  Fee  and  of  Right  &c.  Tempore  Pacts  Sc.   and  died  ^c.  and  ^-^""''^^''tT^" 
the  Church  now  voided  ^c.  and  he  prefented.^  and  the  Defendants  difhirb'd  ^  ",\'' '[ , 
bim^  and  the  Bi/hup  fiid  that  he  cLunwd  nothing  but  Admiffion,  bi/iitution  ii.C.-— — ■ 
and  Induciion;  and  prayed  Judgnient  if  without  Ipecial  Dilturbance  &c.  Br.  Nuga- 
and  tne  Plaintifffaid  that  ^the  Church  voided  by  the  Death  of  f.  N.  as  ".'*"'  P'.,"^ • 
above,  and  that  he  prefented  fuch  a  Day.,  Tear  and  Place  IV.  P.   his  Clerk., 
and  required  him  to  admit  him.,  and  he  refits' d.,  andfo  diiturbM  hir.i  &c. 
to  which  the  Bijhopfaid  that  the  Defendant  prefented  fuch  a  Day.,  and  that 
after  in  the  Feajiof  St.  Hugh  the  Plaintiff  prefented.,  by  which  he  refus'd., 
and  made  Inquiry  De  Jure  Patronatus,  (which  was  alterwards  adjudged 
no  Plea,  becauic  he  did  not  fay  what  End  the  Inquiry  took)  which  Refufal 
in  the  faid  Feafi  of  St.  Hugh  &c.  is  the  fame  fpscial  Dijhirbance  &c.  ab- 
fqne  hoc,  that  he  ref us' d  after  the  faid  Feajf-,  Schoc  &c.  to  which  th-j  Plain- 
tiff faid  that  he  fuch  a  Day  and  Place  after  the  Feafl  aforefaid,  required  him 
to  admit  Sec.  and  he  refus'd;  and  upon  this  they   were  at  ill'uc  ;  and 
after  by  the  Opinion  of  the  Court  the  Ifuc  is  misjoined,  and  the  Plaintiff 
has  departed  from  his  firfi  Plea ;  tor  he  alleg'd  Dijlurbance  fuch  a  Day^ 
•uuhich  the  Bijhop  has  fujlified^  and  he  comes  and  alleges  another  Dt/lur- 
bancc,  by  another  Rethfal  another  Day.,  and  theretbrc  this  is  a  Departure  ; 
by  which  they  repleaded  ;  and  the  Bijbop  faid  that  the  Defendant  prefent- 
ed E.  hisCkrk  the  fame  Day  that  the  Plaintiff' prefented  F.  his  Clerk.,  and  Co 

5  V    '  the. 


44^ 


Prefentation. 


Br  Office 
dcvant,  pi. 
II.  cites 
S.  C. 


tf.c  Chunk  became  Litigious  ;  and  that  the  Law  of  Holy  Church  is,  that 
-juhcn  it  is  Litigious,  the  Ordinary  is  not  hoiifid  to  prefmt  till  it  ie  inquired 
T)e  Jure  Patronatus,  and  this  at  the  Suit  of  the  one  Patron  or  the  other,  or 
their  Incumbent ;  and  that  if  the  6  Months  pafs,  that  he  prefent  by  Lapfe, 
and  none  required  him  "within  the  6  Months,  by  which  ke  made  Collation  to 
one  1'.  his  Clerk  by  Lapfe,  &i  hoc  Sec.  and  demanded  Judgment  &c.  and 
upon  this  the  Plaintiff' demttrid  j  and  there  it  is  agreed  that  the  Jure  Pa- 
tronatus  pall  befued  at  the  Cojis  ej  the  Party  or  his  Clerk,  and  the  BiOiop 
is  not  bound  to  be  at  the  Colls,  lor  he  is  Judge  in  this  Calc  i  but  where 
the  Court  writes  to  the  Bifhop  to  certify  Ballardy,  or  Matrimony,  or  the 
like,  there  he  ihall  do  it  at  his  own  Colts  ;  lor  there  he  is  a  Minifter. 
But  per  Littleton,  The  Jultices  of  the  Special  Affife  are  not  bound  to  lie 
without  their  Fee,  nor  the  Chancellor  to  make  Writs  vvichouc  his  Fee 
for  the  \\"riting  &c.  And  alterwards  it  was  adjudged  th.at  to  Jay  that  the 
Church  was  Litigious,  as  above,  and  the  6  Months  pafs'd,  and  he  jnade 
Collation  by  Lapfe,  is  afufficient  Plea  without  the  other  A'attcr  of  the  Jure 
Patronatus,  which  is  alleg'd  before i  but  this  is  only  Surpluiitge,  and 
the  Pica  is  not  the  worfe ^  tor  the  Jure  Patronatus  is  only  for  the  Ex,- 
cufe  of  the  Biihop,  therefore  it  feems  it  had  been  a  good  Replication  for 
the  Plaintiif  to  have  fird,  that  he  or  his  Clerk  required  to  have  Jure 
Patronatus,  and  he  rel'us'd  ;  and  therefore  as  to  the  Bifhop,  Judg- 
ment was  given  that  the  Plaintiff  take  nothing  by  his  Writ.  Br. 
Quare  Impedit,  pi.  12.  cites  33  H.  6.  12  &32.  34  H.9.  11.  38.  &  35 
H.6.  18. 

3.  Quare  Impedic  by  the  7u;;_g- againft  the  Ordinary,  and  counted  that 
W.N.  was  (etfed  of  the  Manor  of  S.  with  the  Advowfon  appendant,  and  pre- 
fented  J.  &.C.  who  was  Admitted,  Inltituted  and  Indu6tcd&c.  andgave 
the  Manor  with  the  Advowfon  to  R.  L.  tn  Tail,  the  Remainder  to  the  right 
Heirs  ofW.  L.  in  Fee  &c.  and  that  fuch  a  Day  and  Year  it  Yfi&  found  be- 
fore the  Efchcator  &c.  that  the  f aid  E.  L.  died  fifed  of  the  Manor  in  Tail, 
and  that  the  Manor  was  held  of  the  King  in  chief,  and  that  7".  L.  is  Son  and 
Heir  within  Age  &c,  and  th^t  fuch  a  Day  and  I  ear  the  Church  -voided,  and 
the  King  prefented B.  and  tJoe  Bipop  difiurb'd  him,  and  the  Btpop  faid  Pro- 
tefiando  that  E.  L.  diedfeifed  in  Fee  of  the  f aid  Manor,  and  Pro  P/acito  that 
E.  L.  gave  the  f aid  Manor  to  M.  and  others  in  Fee  faving  the  Advowfon, 
and  after  E.  L.  granted  the  next  Pref»ntation  to  Butler,  and  after  M.  and 
the  others  gave  the  Manor  to  E.  L,  and  his  Feme  and  Lezvis  E.  and  after  E. 
died,  and  the  Church  voided,  and  B.  prefented  to  him  C.  at  D.  he  being  ready 
to  take  Horfc ;  and  the  Bijhop  commanded  him  to  attend  upon  him  at  JV. 
within  the  fame  Diocefs  within  three  Days,  to  examine  him  and  inquire  his 
Ability  i  and  he  did  not  come,  nor  fix  Aionths  after,  by  which  the  Biftjop 
made  Collaiton  by  Lapfe,  abfqtie  hoc  that  IV.  L.  gave  tbefaid  Manor  to  E.  L. 
in  Tail  Prilt  &c.  And  afterwards  Anno  15  H.  7.  7  and  8.  all  the  Juftices 
at  Length  held,  That  the  Ordinary  fliall  have  T'lmc  to  be  advifed; 
for  in  the  Examination  he  is  Judge  and  not  Officer,  and  he  ought  to 
give  him  Time  and  Place  convenient,  and  need  not  give  Notice  to 
the  Patron  that  he  did  not  come  to  be  examined  ;  lor  he  has  nor 
refus'd  him.  Br.  Quare  Impedir,  pi.  91.  cites  14  H.  7.  ci.  and  15  H. 
7.  6.7.  &8. 


(B.  d.   12)    Pleadings  ly  Imumbent, 


The  Iiicum-  ^'  ^S  ^^-  3-  Stat.'TT'EM,  Becaufe  that  many  Prefentments  to  divers  Bene- 
he:mjh.ili  not  3-  Cap.  7.      \^  fees  of  Holy  Chwch,  as  well  of  the  Patronage  of  Lay 

bythisSta-    People  as  of  People  of  Holy  Church,  which  are  void  ly  fix  Months,  whereof 
tute  We       the  Collation  of  fuch  Benefices  by  Lapfe  of  Tunc  zvas  devolute,  and  of  Right 
^  pertaining 


Prefentation.  ^^7 


iiertainiiig  to  the  Ordiftarics  of  the  Places,  were  recozxrcd  by  the  Ki/jf  U  the  fitu  of 


of  Right  dcvoliitc  to  htm  by  Lnpfe  of  Time,  and  njtcr  the  King  prefeiitcth  and  Years  in 
taketh  his  Suit  agamjl  the  Patron,  -which  per-cafc  -xtH  fijfer  that  the  King  ^''^i-'jiion, 
Jhall  recover  without  Act  ion  tried^  in  Deceit  of  the  Ordinary,  or  the  PoffcJJor  \l\^^l  ,^'|j 
■of  the  faid  Benefices,    that  in  fuch  Cafe,  and  all  other  Cafes  like,  -where  the  hxll^hi 
King's  Right  IS  not  tried,  the  Archbifhop  or  Bijhop,  Ordinary    or  PojfcJJor,  f^'iarc  Im- 
Jball  le  received  to  *  counterplead  the  Title  taken  for  the  King,  and  to  have  his  P^'^'^  aguinft 
Jnfwer,    andfhew  and  dejend  his  Right  upon  the  Matter,  although  that  /-^f  in"r''"  pT"" 
claim  nothing  in  the  Patronage  in  the  Cafe  uforefaid.  n-on.'w ho" 

appear,  the  King  fhould  have  oufted  the  Incumbent,  becaufe  Nullum  Tempus  occurrit  Kci,  und  tor 
that  Rcalbn  was  tiie  Statute  made.     Fic7.!i.  Tic,  Incumbent,   pi.  1 1.  circs  M.  lo  H.  4.  '  '^  ' 

The  Confeffion  of  the  Patron  or  fupijoicd  Patron,  bstore  this  Srauite  bound  the  Incumbent,  but  now 
rhs  Incumbent  may  f  lead  tie  Title  of  the  J'.Unni,  but  the  Ordina:"j  car.not  ;  for  the  Statute  docs  net  c,\t^nj 
to  nim.     Jenk  15.  pi.  4-. 

Siire  facial  upon  a  Recovery  by  the  Kin^  in  Quare  Impcdir  ;  the  F>:ciiwUnt  Defendant  f.xid,  that  after  ti.e 
Ynd.<'me!it  y.  N.  Pref;ntee  of  the  Kmc,  was  inff anted  and  indtiiUd  Ly  tie  L'ijlop  hy  the  Jame  Jitdirwerit  8cc. 
And  per  Hafty,  The  fame  Statute  which  gives  the  Incumbent  to  plead  ag..inil  the  Knig  iii  (^mi-e  laipe- 
dit,  gives  him  .Ani'wer  in  Scire  facias  iipuu  judgment  therein,   quod  noT  negatur  ;   by  which  th  ey  w  er 

at  ifiuc  ;  ouodnota.     Br.  Incumbent,  pi.  4.  cites  t  46  E.  ;.   15. f  S.'C.  CitcclzLcS,-.  pi.  u;. 

in  CaeofUgnelv.  Paftoi;.— — S  i",  Ku7.h.  Tir.  Incumbent,  pi.  10.  cites  H.  'jo.  E.  q. -  Keo  16. 

cites  S.C.  and  lays,  The  Mifchicf  before  this  Statute  was,  Tljat  by  the  faint  Plcauing  or  Co'nfeiUon  of 
the  Patron  in  Quare  Impedit,  the  Incumbent  was  without  Remedy  ;  but  that  this  Statute  enables  the 
Poifcffor  Sec.  (whicii  is  the  fame  Thing  as  to  fiy  the  Incumbent  alter  Induction,  as  was  held  ±  D.  i.  -• 
H  8  )  so  counterpie:id  tiie  Title  taken  for  the  King,  and  to  have  his  Aniwej-  Sec.  7  Rep.  26.  a.  Pafck 
;i  Eliz.  Cafes  of  Qua:-  Impedit- f  This  Cafe  is  D.  1.  b.  pi.  8,  JgatailC  ti.  LOOk,  where  the  Pa- 
tron claimed  Title  to  the  Advowibn  by  the  Anccftorof  the  Plalntiu  ;  and  the  Iicumbent  would  have 
pleaded  tr.^  fame  Plea,  but  was  oulled  by  this  Statute,  which  enables  the  Poileilor  to  plead  in  Bar 
but  in  this  Cife  the  Incumbent  was  not  inducted,  and  Lcjore  Popffioii  he  is  net  Ii:c:i>nhe>it,  and  fo  could' 
nor  rle.id  'Ne  dirturba  pas  &c. 

*  This  is  intended  -ivkere  Jfliin  is  com>ne>:c'd  ;  for  if  an  Incumbent  be  in,  and  is  onfled  hy  .-Idmiifu')!  and  Ik~ 
uBior:  ej  tl.s  IncumberU  of  the  King,  he  has  no  Remedy  but  to  lue  by  Petition  to  the  King.    Br.  Incum- 
bent, pi.  7-  citc-s  2  H.  4.  17.  _ 

The  particular  Canfe  of  this  Laiv,  is  for  the  Relief  only  of  the  Ordinary  that  hath  colIat»d  by  Lanfe 
and  of 'the  Cleilc  that  is  fo  collated,  thac  they  may  both  plead  to  the  Title  ag.iinft  the  King,  which* 
■when  you  con'iderit,  was  a  rcceliary  Law  as  againft  the  King  more  than  ag.iinl't  Common  Patrons;  for 
the  K'.'g  not  being  houn.d  by  Lapfe  of  I'ime,  if  tii_-  com:n.).i  Patrjn  fuff-nvd  a  Lapfe,  and  the  Bil'hop 
colla'vd  lawfully,  yet  if  the  King  pretending  himfelf  Patron,  brought  a  Quare  Impedit  againft  the  Or- 
tiinu.  y  and  Incumbent,  there  was  no  Means  for  them  to  fave  them!tl/cs,  fuice  they  could  not  deny  cl;e 
King's  Title  and  maintain  the  Patron's,  in  whofe  Default  the  Lapfc  took  Place  ;  but  the  Statute  gives 
Remedies  likcwife  in  like  Cales,  by  ejrprefs  Words  ;  lb  that  Cafes  of  like  Nature  are  rather  remedied  hy 
Litter  than  Epnity.  And  therefore  firff  (?;//•«  C',-/!' cf'L.i;Ve»  a  common  Perfon  might  by  Prafti.-e  have 
turned  out  a  lawful  Collatee  in  one  only  Cafe,  and  chat  was  this,  A  cominun  Pqrlon,  1:0  true  Patron  pre- 
ftvts 'Xsthin  6  Months,  and  the  true  Patrcnhitnfelf  frefents  not  in  '/ime  \  whereupon  the  Ordinary  collates  by 
Lapfe,  againft  whom  t'nt  Pretender  brinu  a  .^^lare  Impedit,  becaufe  his  Clerk  was  refuled,  wherein  he 
nuilt  needs  prevail,  li"  his  Title  be  good,  and  it  niufl  be  taken  for  good,  becaufe  neither  Ordinary  nor  incumbent 
ctnld  deny  it ;  for  Dc  non  apparenttbus  &  de  noii  e.xiifen:ibu.>  c.idem  eff  rado.  This  is  one  of  tiie  like 
Cales  meant  in  the  Statute  ;  for  all  in  other  Cafes  the  Lapfe  is  an  equal  Title  againil  all  common  Per- 
fons.  But  the  commoneft  like  Cafe,  and  that  which  extends  farthelf,  is  the  Purview  ;  for  every  Incum- 
bent that  is  c.iUed  a  Pofiellor,  as  well  by  Prefentment  as  by  CollarioM,  is  allowedbv  the  V\'ords  of  the 
Law  to  counterplead  the  King's  Title,  and  tafliew  and  defend  his  own  Right  upuii  the  Matter  tho* 
hi  cl  iim  notliing  in  the  Patronage  in  the  Cafe  aforefaid  ;  Kote  alt  lie  Ji'crdi,  for  they  h.i'.e  all  their 
Jt'dtiht ;  for  firff  the  he  timhent  mujl  be  a  Pcjfrffor  ;  fo  that  if  he  have  his  Prefentation,  Admillionand  In- 
J'.itution  upon  the  lawful  Title,  yet  he  remains  as  he  w.is  before,  under  the  Mifchief  of  the  Common 
I.aw,  becaufe  he  is  not  a  Poflelfor  according  to  the  Letter  of  the  Law,  but  hy  Indndion.  And  furher 
That  tho'  he  be  a  Pofleffor,  le  mufl,  by  the  Letter  and  Meaning  of  this  Law,  as  nvell pc^u  and  defend 
his  (Kill  Ki7jjt  as  counterplead  his  .-tdverfary's  ;  and  therefore  clearly  he  cannot  make  liimli;If  Paribn  Im- 
parfeiiicc  of  the  Prefentation  of  J.  S.  and  defend  himfelf  by  the  Title  of  |.  D.  Uiider  whom  he  claim.s 
not,  though  that  were  fufficicnt  to  dsftroy  the  Plaintiff's  Title,  by  Co.nfeilin!^  and  Avoiilini',  or  the 
like;  Neither  can  he  counterplead  the  Plaintiff's  Title,  but  muif  alfo  make  a  Title  to  him.'etfby  the 
Word  and  Meaning  of  this  Law,  which  I  fpeaknot  to  bind  the  Incumbent  by  the  P.iiron's  Plea,  v.  here- 
of I  will  f  eak  hereafter  v.  hen  I  come  to  the  Incumbent's  Plea  ;  but  touching  Plea  of  the  Ordinary  upon 
this  Statute,  I  hold  plainly  that  he  can  no  ctheriuifc  plead  Ihr.n  lie  could  at  the  Cor:nion  La-u;,  but  only  vjhcre 


Prcfcntation. 


.14^ 

he  I  nth  lottnteci  nBiinlly  iy  Lnffe  ;  for  tho'  tlic  Incunil'cr.t  in  by  Pjcfent.nion  be  alfo  admitted  to  plead  by 
rlic  McMiiing  of  this  Law  under  the  Word  (Like  Gate,)  becaufc  the  C:i(c  is  like  indeed,  yet  the  Or- 
dinarv's  Gale  before  Attual  Collation,  is  no  ways  like  in  Gaie";  for  he  hath  f^otten  no  Iinevell  for  liim- 
lirlf  nor  his  Clerk  in  the  Gluuch.  And  therefore  if  the  Incumbent,  ini'tit  ited  only  at  thi:  Prclcntation  of 
another,  be  not  within  the  Kelief,  m\ich  lels  fliall  the  Ordinary,  that  hath  no  Intcrelf,  but  an  Office 
only,  tluit  ought  to  be  inditierent  to  all  Patrons,  and  maintain  no  Side.  And  yet  more,  if  the  Imumhent 
v-hich  is  inducted,  be  Defendant  in  f^uare  Impedit  (which  may  plead  by  the  Statute)  and  do  rejhn  h.tng- 
vw  tie  Writ,  I e  Shith  left  his  Pri'-Jlege  of  ple^l'ng  to  the  Title  l.y  tie  StMute  ;  for  as  it  was  granted  him  to 
defend  his  PoflefTion,  lo  when  his  Polielhon  is  gone,  there  is  no  (^aule  for  him  to  ufe  it,  which  Keafon 
alio  turns  ftrorgly  againfl  the  Ordinary,  where  there  is  no  PoflelTion  under  him  ;  ioT  yet  that  Incumbent 
tliat  hath  refigncd  ni.^y  fler.i^,  ns  he  »iieht  h/ive  ple/tHeil  at  the  Co»:mcn  L^itv.  And  Note  that  Cafe  of  the 
■  •      ■      "     -  ■      ■        ■ Pl^a 

enant 

the 

,  but 

in  the  fjuare  Impedit  he  is  not  named  an  Incumbent,  but  a  Dillurber  only.  Neither  is  the  Suit  for  the 
Incumbency  directly,  but  for  the  Patro'-age  or  Prelenration  ;  and  therefore  in  the  Writ  of  Rigiu  of 
Advowlbn,' the  Incumbent  is  never  named;  ricithcr,  if  the  Defendant  recover  againft  his  Patron,  (Tiall 
lie  be  removed.  Per  Hob.irt  Ch.  J.  who  fiiid  that  he  had  been  the  larger  in  this  Difcourfe,  bccaufe  he 
law  the  Inheritances  of  Advowlons  lb  incumber'd  by  wilful  Ufurpations,  and  Dillurbances  of  pretended 
Patrons,  Ordinaries  and  Clerks,  a'ld  the  Mullip!i:ity  and  Perplexity  of  f'everal  Pleas  of  the  Defe-dants 
be  they  never  lb  many,  whereof",  if  any  one  pafs  againlf  him,  he  is  barr'd,  and  the  Uncertainty  a^d  Va- 
riety of  the  Learning  upon  it,  that  it  is  almoft  impolTible,  if  a  true  Patron  be  put  to  his  Action,  but  he 
vill  be  tired.     Hob.  319.  520.  Sir  William  Elvis  v.  Archbifhop  of  York. 

Fr.  Qiiare  2.  The  Incumbent  fliould  not  have  anfwercd  to  theT'itk  of  the  Patron 
JT'^'^.'^I'^'-  '''■  h'  thcComri/oH  Law  in  Qj-iare  Impedit,  liit  now  /pytbe  Statute  he  UialJ  plead 
S  C— Br  i'l^  the  Patron  pleads  taintly  ;  but  \\  here  his  Parron  is  bound  by  Jtid^iue/it^ 
Encumbent,  or  lijch  like,  the  Incumbent  is  bound  likewile.  Br.  Encumbent  (5cc.  pi.  8. 
pi.  5  cites     cites  38  E.  3.  31.  Per  Thorpe. 

Fitih.  Tit.  Encumbent,  pi.  4..  S.  P.  cites  M.  2.  R.  2. 

S.  P.  But  if.  5.  Quare  Impedit  agahift  T.  S  J.N.  ivho  was  hafmbcat,  and  Counted 
it  had  ap-  gj  jf-,g  i'refetitation  of  his  Prcdeccffory  and  7!  traverfcd  the  Prefentatio,/^  and 
hT  ftouW^"  w^rt'f  Title  to  have  Writ  to  the  Bijhcp,  and  J.  N.  pleaded  the  fame  Plea;,  And 
not  be  per-  there  it  is  faid,  That  at  the  Coiiiiiiqh  Ldiv^  the  Incumbent  ihail  ha.c  no 
mitted  to  PJea,  becaufe  he  has  nothing  in  the  Ad\  owlbn,  and  the  Statute  was  for 
plead  where  ^he  Milchicf,  that  if  the  Patron  would  not  plead,  the  Incumbent  might 
dad.r'^d  P^"^^*^?  ^""^  now,  when  the  Patron  pleads,  there  is  no  Milchief,  and 
diercfore  theretbre  the  Incumbent  need  not  to  plead  ;  But  Brooke  makes  aj^twre, 
both  IiTues  if  the  Patron  will  maintain  the  liiue  iainily  i  And  after,  becaufe  it  did 
were  taken  ;  not  appear  by  the  Writ //"^/^i?  is  Incttmient,  but  Itands  indiri'erent,  and 
and  io  fee  where  feveral  are  named,  it  may  be  that  all  are  Patrons,  therefore  the 
tvte  is\Dt  t'n-^^'^^  wasfulFercdi  quod  nota.  Br.  (^uare  Impedit.  pi.  104.  cites   39  E. 

termed  thit       3.  20. 
the  Ivcioiibevt 

pall  plead,  but 'xhere  the  Patro»  makes  Default,  or  will  not  p?i"ad  ;  quod  not«,  gcod  Reafbn.  Br.  En- 
cumbent &c.  pi.  15.  cites  39  E.  3.  30. S.  C.  Cited  7  Kep.  26.  a.  in  Gale  of  Hall  v.  the  Bifliop  of 

Bath  and  Wells. 

SotheA"/K(T  ^  In  Qtiare  Impedit  by  the  King  the  Co//;??  was,  that  the  King  him- 
m  a  Quare  {cli'-xas  feifed^  afui pnfented  one  B.  who  hz  his  Prelentment  was  received 
iZlud  that  S^c.  and  that  B.  died,  by  which  it  belonged  to  the  King  to  prefent; 
Ki?!g  H.  was  The  Defendant  being  the  hiciiiubent  pleaded  that  the  faid  H.  is  ft  ill  alive ; 
feifed,  and     And  that  Plea  was  allowed  without  any  other  Title   made   to  himft>lf. 

^^-''and'^r*    ^""g-  ^^-  46-  P^-  ^^-  ^^^^'  43-  E.  3.19- 

Kiyig  H  died,  andfo  the  JdvKvfon  defended  to  himfetf;  that  A  die-d,  and  he  prefented  B  tr!:d  that  w::-  B  is 
dead,  and  fo  it  belongs  to  him  to  preient.  The  Defendant  being  Iiuunwein,  traversed  the  I/iftitiitiori  and 
hduHionof  B.  •withctit  making 'title  to  hiwfelf.     Arg  Le.  4?).  pi.  5S.  cites  4-  E  5.  S. 

In  Quare  ^.  Note,    by   the  Opinion  of  all  the   Juilices  that  in  J^iiare Impedit 

Impedit  the  brought  by  another  than  the  King  agamft  Fatron  and  pMuaibent.^  the  In- 

ITiall'plead  kimbentftjuU  not  have  yinfuer  to  the  Title  vf  the  Palrvn,  becaufe  the  Statute 

ae.ainftthe  doiis  not  give  it  but  Agamft  the  King.    Cjutra,  it  is  haid  at  this  Day  by  the 

Kmg  by  the  Plqitity  oj  the  Statute.  Br.  Encumbent,  pi.  3.  cites  44  E.  3.  12. 

Statute,  and 

.i?^/«tf  a  *  common  Perfn  by  tbe  Ecjuily  ;  and  Qiiare  Impedit  lies  not  againil  the  Incumbent  alone,  but 

•v\  here  the  Pope  or  the  King  prelents.     Br.  Encumbent,  pi.   i;.  c\ics^  9  H.  0.  30. S.  P.  Per  Babbing-' 


Frefentation. 


449 


ton;  But  per  Paftm  he  might  have  pleaded  agninft  a  Common  Pcrfon  by  the  Com.non  Liw,  bat  not  a- 

{»,;inltt!ic  King    (or.  ()iiirc  laipciit.  pi.  6.  cites  S.  C. S.  C.  &  P.  cited  7  Rep.  26.  in  the  CifcoKHill 

V.  the  Bifliopof  Bathand  Wells  —  *  S.  P.  PI.  C.  ijS.  b.  Mich.  ^to.  Maria:  in  tlicCife  of  Hill  v.  Gra  g;. 

6.  An  Incumbent  fliill  plead  all  Pleas  fave  thofe  which  go  to  the  Right  S  P.  per 
of  the  Patroiiage,  and  this  it  itcm^bythc  Common  Lazv,  but  now  by  the  Sta-  ^'^"p^^  J* 
titte  he  niiiy  plead  ofthe  Title  of  the  Patronage.    Per  Brudenel  Ch.  J.  tion,  rl.  2;"* 
Br.  Encumbent  &c.  pi.  11.  cites  14  H.  6.  31.  citc5i4RS. 

*l.\'i\.\\Q.  Patron  \vo\A^confcfs  the  A:l ion  ox.    Tide,  yet   t\iQ.  Incanihcnt  ^■ 
ma)  plead  in  Bar.  Br.  Encumbent  iScc.  pi.  11.  per   Brudenel  Ch.  J.  cites 
14  II.  6.  31. 

8.  (^are  Impedit,  the  Defenilant  faid,  fhat  t.  H.  is  feifed  of  the  Afa-  But  Br. 

nor  of  D.  to  isohich  the  yJdvoxfun  zvas  and  ts  appendant,  and  the  Church  Q!i-"'c  Imp^- 
voided  by  the  Death  ot"G.  and  7!  prefented  him,  by  which  he  was  admitted  6  eitcs'Vfi  E^i 
Months  before  the  Writ purchafed.  Judgment  Si  Actio.   And  per  Danby  he  n.  it  was 
is  only  Incumbent,   and  thereloie  the  Pica  does  not  lie  m  his  Mouthy  lield  per  tot. 
But  per  Newton  &:  Cur.  the  Patron  may  have  the  Plea,  and  I'o  may  the  '^".''  ^'^^'^ 
Incumbent,  the  Kea(bn  feems  to  be  in  as  much  as  by  the  Statiitet\\&  Incum-  p))^  '''Ifff;',^ 
bent   may  plead.    Er.  Quare   Impedit.  pi.  146.  cites    22  H.  6.  14.  Imm-Ui^t, 

jh-'ir  tor  <r?;y 
ei/'cr,  lilt  [or  }im  agri>i(}  <u:lom  the  ffWit  of  Riirht  of  Jik-oivf'ti  Hes  vliich  lies  only  againfl  the  Patron  ;  foi* 
to  -he  Writ  it  is  no  Plea,  becaulehe  doe.s  not  give  a  better  Writ  againft  any  Perfon  certain  ;  and  to  the 
Actio^-,  it  is  no  Plea,  bccauic  he  who  pleaded  it  does  not  intitle  himlelf  to  the  Patronage.     Br.  Plenarry, 
pi.  9.  cites  S.  C. 

9.  The  Incumbent  fliall  pleud  the  fame  Plea  as  the  Patron  pleads  ; 
quodnota.  Br.  Encumbent,  i.  cites  33  H.  6.  13. 

10.  Quare  Impcditby  the  Abbot,  and  counted  of  a  Voidancc  by  Depri- 
I'atunoJ  one  J.  The  Defendant  faid  that  the  Church  was  fall  of  bimfelf  6 
Months  before  the  V-'rit  pnrchafed^  and  the  j'aid  'J  made  Default  in  the  fame 
Writ,  Et  non  allocatur,  without  anfwenng  to  the  Depri-vaticn  ;  and  after 
hefliewed  how  he  had  lucd  Repeal,  and  that  he  was  in,  and  becaule  he 
did  not  plead  certainly,  therciore  Non  Allocatur.  Br.  Qj.uue  Impedit. 
pi.  113.  cites  39.  H.  6.  19. 

11.  In  Qiiare  Impedit  (J'^^fz^/? /twoj  the  one  pleaded  as  Patron  Ss.c.    and  S.C.  cited 
the  other  pleaded  the  fame  llea^  and  that  the  Patron  prefented  him  to  the  Ei-  '  ^^P- -^-  ^ 

pop,  who  would  not  Admit  nor  Inltitute  ^/w,  which   is  the  fame  Diflur-  "fH^lv  tlia 
bance  Sec.  and  demanded  Judgment  Si  Actio.  And  per  Brian  and  Huwes  Bifliopof 
it  is  a  good  Plea  ;  Eor  he  cannot  lay,  Ne  diltuibapas^  For  in  Fact  this  Gath  ai-.d 
is  a  lawful  Dillurbance,  and  at  Common  Law  Incumbent  might  plead  a-  Wells. 
gain/^  a  Common  Pcrfcn,  but  not  againfi  the  King,  qusere  inde  ^  But  this  is 
now  remedied  by  the  Statute  ;  But  Keble  contra,  and  that  he  cannot  try 
the  Right  of  the  Patronage,    and  that  Di0ei  for.  Pernor,  lucumbint   Sec. 
pall  have  Plea  to  excnfe  them,  but  not  to  try  the  Right  of  theBencfce ;  Quaere, 
and  fee  the  Statute  of  W'eftminlter  2  cap.  5.  ot  Plenarty.  Br.  Qjaare  Im- 
pedit. pl.  1J7.  cites  2  H.  7.  14. 

12.  Tiie  King  brought  aQuare  Impedit  againfi  theEifoop  andhisCollatee  S.  P.  For 
by  his  Lapfe;  The  Bijrjop  pleaded  a  Plea,  which  was  held  good,  and   the  ^^''^  Plea  of 
Ccllaite  pleaded  that  he  is  Parfin  Imparfonee  of   the  Church  aforefaid  Ex  ^Ifjfffl"^' 
Prefintaticne  Prtefati  Epifccpi  in  Forma,  ci?  ex  Caufa  pro:- allegata.     It  was  ^ctto  refer  to 
laid  by  Yaxley,  That  itlliould  be  Ex  Collatione,  and  not  Ex  Prefenta-  the  Plea  of 
tione ;  For  that  it  is  no  more  than  Collation  ;  And  Coningsbv  faid.  That  *^'^  Erjhop. 
the  Plea  of  Ex  Caufa  prsailegata  is  not  good  by  the  Incumbent  \vhere  he  i,ent  '^]["™' 
does  net  join  in  Plea  with  the  Bifkop,  but  fhalljbew  the  Matter  as  f pec  tally  cites  14  U. 
as  the  Ordinary,  becaufe  he  is  a  Stranger  to  the  Plea  of  the  Ordinary  ;  And  7.  21. 

the  Julticesfaitl  plainly.  That  "-he  Plea  of  the  Incumbent  is  not  good, 
Pro  Caufiantedicla.  Er.Quare  Impedit.  pi.  91.  cites  14  H.  7.  21.  15  H.  7. 
6.  &  7  &  8. 

13.  \M:cre  a  Clerk  is  in  without  Prcfeiitation  (as  wh?re  the  Dean  and 
Chapter  of  Paul's  prefented  the  Dean  by  the  Name  of  B.  and  not 
by  the  Name  cf  Dean,  and  this  Prefentation  was  alio  with;uit  Writ- 
ing) cr  ly  Prayer  to  be  admitted,  fuch  Incuir.bent  is  not  aided  by  the  Sra- 
tuie  to  plead  in  Bar  j  For  there  is  no  Prcfentation  in  either  ot  thole 

J  X  Caic.ii 


.^o  Prefentation. 


Cafes  i  And  i\\c  St  at  tit  e  requires  an  Incumbent  prefented.   Jenk.  199,200. 
pi.  18.  cites  it  as  refolved. 

14.  An  Incumbent  prefented  and  inducted  may  at  this  Day  plead  the 
Right  olPatronage  of  his  Frefcntor,  where  the  Patron  conielled,  or  made 
iJctuult,  or  pleaded  faintly  ;  But  cannot  plead  the  Right  of  Patronage  in 
another,  than  in  him  who  prefented  him,  Jenk.  200  pi.  18.  fays  it  was  fo 
relolvedi  And  that  fo  are  16  E.  4.  &  14  H.  8.  to  be  underltood. 

15.  W  hen  the  Inainik'vt  pleads  the  Prefintment  (if  a  Stranger,  he  mull 
Jhew  thatthe  Stranger  had  a  T'ttk,  and  that  he  was  feifed  ot  the  Advow- 
fon  &:c.  or  that  he  was  feifed  of  a  Manor,  to  which  &c.  Rut  where  he 
pleads  that  he  was  in  for  6  Months  of  the  Prcfcntnient  of  the  Plaintiff'  him- 
lelr,  or  by  Collation  by  Lapfe  by  the  Ordinary,  there  he  need  not  not  make 
any  Tide.  Agreed  per  Cur.  Noy  30.  in  the  Cale  of  Liller  v.  Crameel. 

Het.iT.S.C.      i5.  In  Quare  Impedit  the  Defendant,  the  Incumbent,  pleaded,  'that  he 

Hmt  9^       "  i'cvfoiia  Imperfonata  of  the  faine  Church  Ex  Prcfentatione  Regis  &c.  Ex- 

s.  C.  but       ception  was  taken,  becaufe  he  laid  he  was  Perfona  Imperfonata,  and  does 

S.  P.  does      not  fay ^  tempore  Impctrationis  B^-evis,  fed  non  allocatur  i  For  it  is  inferred 

not  appear,     by  the  Writ  brought  againlt  him,  and  if  he  be  Parfon  Imparfonee  before 

the  Writ  brought  againil  him,  it  is  fufficient,  and  divers    Precedents 

■were  cited  in  the  New  Book  of  Entries,  asFol.  494.  405.  407.  to  that 

Purpofe.  Cro.  C.  104.  105.  pi.  6.  Hill.  3  Car.  C.  B.   Lady  Chichefley  v. 

Thompfon  and  the  Bifhop  ot'Ely. 

17.  Adjudged  that  the  Incumbent  cannot  plead  to  the  Title  of  the 
Parfonage,  that  he  EJ}  Perfona  Imperfonata  01  the  Prefentation  of  the  Pa- 
tron, and  the  faying  that  Fait  is  not  fufficient.  Agreed.  March.  159  Hill. 
17  Car.  Palmer  v.  Hudde. 


(B.  d.  13)     Double  Pleas. 

S'-Z-^rSs  ^-  TP^^E   King  brought  ^tare  Impedit,    and  intitkd  himfelf  to  the 
S.'c.'ac- '^  J-     ^I"'(ty  of  the  Advoiifon,  becaufe  the  Father  of  the  Defendant  was 

cordingiy.     f'fd  and  prefented  die.  and  died,  and  the  Defendant,  Heir  to  him,  wis  ont- 
,  la-wed  in  trefpafs,  and  the  Church  voided  by  the  Death  of  the  Incumbent  of 

the  Father  d^c.  The  Defendant  f aid  that  the  Church  is  fevered  into  3  Parts 
andfhcived  certain,  Abfqtie  hoc  that  the  f aid  Incumbent  was  in  by  the  Prefent- 
vient  of  the  Father  of  the  Defendant,  and  the  Plea  awarded  Double   viz 
the  Church  divided  into  3  Parts,  which  by  the  Jultices,  is  a  good  Plea  to 
the  Writ,  and  the  tr aver fe  goes  in  Bar  of  Aftion  ;  quod  nota.  Br.  Double 
pi.  85.  cites  22  Air  33.  ' 

Br  Double.  2.  In  Quare  Impedit  the  Defendant  pleaded,  That  A^.  the  tenant  granted 
cites  s!c.  ^^^^  Land,  and  the  Advowfon  to  him,  who  prefented  twice,  and  pewedwho 
and  fo  IS  he  feifed  of  the  Advowfon  Sec.  and  note  the  lall  Prefentment  coel 
to  the  Writ,  and  the  Deed  of  the  Grant  to  the  A6lion,  and  fo  Double  • 
But  becaufe  he  concluded  upon  the  one  Matter  viz.  the  Seilin  &c.  therefore 
it  is  not  Double.  Br.  Double,  pi.  $6.  cites  24  E.  3.  37. 

3.  In  e),,are  Impedit^  the  Plaintiff  intitkd  himfelf  as  Appendant  to  his 
Land  in  U  ard,  the  Defendant  faid,  that  after  the  Death  of  the  Ancejlor  he 
entered,  and  is  yet  feifed,  Abfqiie  hoc,  that  the  Plaintif  ts  poffcfj'ed  of  the 
Land,  and  that  the  Ancefior  of  the  Infant  held  of  one  A.  who  held  over  of  the 
Plaintiff,  Abfque  hoc,  that  he  held  immediately  of  the  Plainiff.  This  is 
Double.  Br.DoubIe.pl.  135.  cites  24 E.  3.  55, 
Impfdirthc  „  4-/^"  Prefentnuntsof  Fee  Simple  are  Double ;  Contra,  upon  Eftate  Tail. 
I'laintit^        '^r.  Quare  Impedit.  pi.  loi.  cites  24  E.  3.  77. 

m.ide  T///e  hy  Gift  in  'fail,  a;H  aUe^red  cm  Prefentment  in  the  Donor,  and  another  in  the  Doftee ;  And  the  bed 
Opinion  was  Tlur  ,t, snot  Double ;  For  to  fay  that  Ne  dona  pas  anfwers  to  all,  and  fo  of  reverair3-rcents 
;^H  6  And  It  was  raid  that  one  Prefenrmsnt  may  be  alle;;ed  in  the  Anceftor,  and  another  in  the 
Guanii;in  by  Chivalry  by  Nonage  ot  the  Heir,  and  good  Br.  C>uare  Impedit.  pi.  115.  cites  .1  E  ±  ^  - 
br  Double  pi.  97.  cites  S,C.  '         ■ -r     t- >■ 


Prefentation.  aCi 

T'^io  Prefentmenti  alleged,  arc  Double  ;  per  Brooke,  but  BrudiicU  Contra  ;  For  the  frjf  jh.ill  ie  taken 

for  Title,  and  tUcoihfr  for  Convey.ince  orly.  Br.  Qiiare  Impcdit.  pi.    149.  cites  12H.  S.  li. 6.  P.  Br. 

Double,  pi.  1 1 2.  cites  1 5  H.  S.  I  ; . 

5.  In  ^lare  hupedit  the  Plaintiff  counted  that  the  Ablot  and  his  Prede- 
cejlors  have  tiCed  'Time  out  of  Mind  at  every  Avoidance  of  the  Churches  of  C. 
topnfeiit  a  Clerk  to  the  Plaintiff'  and  his  Jnceftors,  and  he  over  to  the  Bijhofy 
and  alleged  P  off  el/ion  that  he  had  fo  prefented  C.  B.  who  was  admitted  and  m- 

Jiituted  J  and  'that  C.  B.  after  refignd^  and  the  Abbot  has  prefented  to  the  Or- 
dinary now  hnmedtatcly^  and  fo  difitirb'd  him.  And  Per  Grene  and  Skip. 
Prel'cr/ptwn  and  t\\Q PvffeffioH  alleged  by  the  laji  Prefentment  is  double;  and 
the  fame  Lawofz  Prerentments,  quod  concordatur  in  theCafeoi'£)Iiino;: 
fCl0  33  H  6.     Br.  Double,  pi.  67,  cites  24  E.  3.  78. 

6.  .^uare  Impedit  by  the  *  Kingy  and  he  counted  upon  2  Prefentments,  ♦  S.  P  For 
and  not  double.     Contra  in  Cafe  of  a  Common  Perfon.     Note  a  Difference  ^'^  "'"y  P'^"^ 

hx.  Double,    pi.  22.  cites  43  E.  3.  14.  '  fever.lAlat. 

'    "  t:)  y       t  tei-j,  apd  the 

Party  fhall 

anfwer  to  all  ;  Quod  nota    Br.  Double,  pi.  57.  cites  14  H.  ;.  26. S. P.  For  he  may  a'lei^e  as  many 

Pr.  Mentations  as  he  will ,  quod  nota  ;  Per  Cur.  quia  Rex  &c.  per  Prerogativam.  Br.  Double,  pi.  82.  cites 

5SH.6.53. 

7.  In  G);iare  Impedit  the  Defendant  pleaded  to  the  Writ,  That  where  the 
Plaintiff  fiippofed  the  Vvidance  by  the  Death  of  R.  it  voided  by  the  Death  of 
W.  judgment  of  the  Writ,  and  that  the  Brother  of  the  Plaintiff',  whofe 
Heir  he  is.,  aliened  one  Acre  andthe  Advowfon  appendant  to  the  Brother  of  the 
Defendant,  whofe  Heir  he  is,  and  his  Brother  prefented,  and  the  Church 
voiacd  6^c  and  not  double;  tor  he  vho  pleads  to  theW'rit  in  Quare Im- 
pedit ought  to  make  Title;  lor  otherwife  they  Ihail  not  have  Writ  to  the 
BifLop,  quod  nota,  Br.  Double,  pi. 23.  cites  43  E.  3.  25. 

8.  ^riare  Impedit  by  the  King  by  reafon  of  the  Avoidance  during  the  Tem- 
per alt  ics  of  the  Bifjop  being  in  his  Hands  i  the  Defendant  f aid,  that  the 
Church  did  not  void  whilji  the  Temporalties  were  in  the  King's  Hands,  and 
pleaded  Ratif  cation  of  the  King  of  the  Prefentation ;  this  is  double.  Contra, 
if  he  relies  upon  Ratification  of  the  King;  but  after  he  waved  the  Plea, 
therefore  quaere.     Br.  Double,  pi.  125.  cites  7  H.  4.  37. 

9.  ^lare  Impedit  by  the  King  againjt  a  Prior  who  had  taken  Gijt  of  a  But  Brooke 
Manor  and  Advowfon  m  Fee  to  hold  in  proper  Ufe  without  Licence,  and  the  ''^y''>  ^<^e  "f- 
Prior  pleaded  Letters  Patents  of  the  King  made  to  htm  then  Tenant  oj  the  ''^""■■"'^- 
Manor,  and  this  by  Cvnceffimus  (J/  Confirmavimus,  and  by  Judgment  this  Fe^ffr^e,^^  * 
is  lingle  enough  ;  for  by  reafon  it  was  pleaded  to  the  Prior,  then  Tenant  rjith  If'ar- 
of  the  Land,  it  can't  enure  by  w  ay  of  Grant,  but  by  way  of  Confirma-  ^-""y  '« 
tion  only.     And  Per  Cheney  and  NV'eftbury,  becaule  'tis  all  by  one  Deed,  J;^"^.'=  f  *« 
which  is  entire,  it  cannot  be  double.  Br.  Double,  pi  9.  cites  6'H.  6.  22.    'upm''!;// ^ 

li\irrantl. 
Br.  Double,  pi  9.   cites  oH.  6.  22. 

10.  Quare  Impedit  brought  by  H.  againft  B.  and  the  Bilhop  and  the  Br.  Double, 
Incumbent,  and  counted  that  he  was  feifed  of  the  Advoivfon  as  in  G'rofs,  and  P'-  ''■  cite.s 
this  as  0/  Fee  and  of  Right  &:c  and  prefented  T.  his  Clerk  who  was  admitted  \l       ^   \f* 

8i.c.in  Time  of  Peace  Sic.  and  died  6cc  and  the  Church  now  void;  and  he  pre-  ingly. ." 

fented,  and  the  Defendants  dijfurb'd  him.     B.faid,  That  W.  was  feifcd  oj  For  where  a 
the  Manor  of  D.  to  which  the  Advowfon  was  appendant,  and  prefented  his  '^'z'"  '"Hthd 
Clerk,  and  after  JV.  infeoff'ed  S.  &c.  who  gave  in  Tail  to  the  Baron  and  Feme,  '/yf/^o  * 
who  were  feifed,  and  prefented,  and  conveyed  the  Manor  to  the  Defendant  as  iard.u:t7r 
Heir  in  Tail ;  and  that  he  leafed  to  .^-for  ten  Tears,  during  which  Term  the  Common  Jp- 
Plaint  iff  prefented  by  Ufurpation,  and  now  the  Terni  is  determined,  and  fo  now  P^'"!^':',  and 
it  belongs  to  him  to  htm  to  prefent;  And  fo  by  the  Title  and  Ufurpation  he  ^tl'^l-  f' c 
contefs'd,  and  avoided  the  Plea  of  the  Plaintiff.  The  Plaintiff' f aid.  That  p^^Jn'in 
during  the  Gift  in  Tail  F.  his  Ancejlor,  whofe  Heir  See.  prefented  one  D.  his  the  ^Hanor  or 
Clerk,  who  was  advtittcd  &c.  Abfque  hoc  that  the  Church  was  appendant  to  ^'""'  '" 
thefaid  Manor  at  lh:  Time  of  the  Gift,  or  ever  after  ;    And  the  ('pinicn  "f  aJJd'frf^f'i.jV 

the 


4  £^2  Prefentation. 


tlie  Re^.trd-  tlic  Cotirc  was,  Thuc  this  is  doiil;le  ;  for  the  Prefcntment  before  the  Gift 
£:>:cy  or  Jp-  p^.j^g  [he  Advowlon  ill  Grofs  againft  all  i  and  theTraverfe  of  the  Appea- 
ls double -Vbr  diin'^y  is  another  Matter,  and  therefore  double.  But  by  all  the  Jultices, 
each  is  fii'ffici- W  the  Plaintitf  had /^/(^,  T'hat  he  bivifelf  prefeuted,  as  he  declard,  Abfque 
etit  M.itt'er.  hoc  that  the  Advowfon  ivas  dppendant  at  the  Time  oj  the  Gift ;  this  had  been 
PcrPiilot,  a  good  Plea.  Br.  Quare  Inipedit,  pi.  12.  cites  33  H.  6.  12,  32.  34  H 
^•"^-  6.   II,  38.     And  35  H.  6.  18. 

Jitd  Per  Pii-  II.  In  ._&//are  Inipedit  the  Plaintiff' counted  that  one  J.  S.  was  feifed  of 
fot  and  2  fj.,g  MjHorof  D.  Ad  quod  Advocatio  pro'dici a  pertifiet,  and  prefented  one  J.  N. 
^^^^Ici'h/^  '  ^'"^  (dieged  Gift  en  Tail  to  one  M.  his  Ancejior^  and  Defccnt,  and  that  the 
Grofs.,  if  th.c  Heir  prej'ented  upon  another  Avoidance ;  and  tho'  he  alleged  fever al  Defcents 
Plaihtiff  to  himfef  as  Hcir,ytt  upon  long  Argument  it  was  agreed,'rhat  the  Count 
counts  oj  fe-  ^^,jg  enough  liuglc;  for  the  Gift  is  the  Eilecl,  and  only  traverfable  ;  and 
m'e/ifs  this'i's '-'^^  Defcents  are  only  Conveyances ^  and  theretore  it  is  not  double  i  And  ib 
nor  double  ;  judgment,  Qj.iod  refpond'  ultra  j  But  Littleton  pray'd  Bill  to  be  fealed 
fornoncis     ol    the  Exception,  and  had  it.     Br.  Double,  pi.  16.  cites  33  H.  6.  32. 

travcr(able 

but  the  laft  Prefcntment,  and  if  the  laft  be  omitted,  the  Defendant  may  plead  it  in  Abatement  of  the 

Count.     Br.  Double,  pi.  16.  cites  55  H.  6.  32. 

1 2.  In  J^uare  Inipedit  the  Defendant  pewed  Conveyance  of  Eflatc  in  'tail^ 
viz.  Self  in  m  Fee  in  M.  who  made  a  Fe':Jfnicnt  in  Fee  oj  the  Manor  and  Ad- 
vow  pm  appendant.^  and  retook  in  Tail ;  and  after  difcontinued  the  Manor^and 
after  prefented  to  the  Advowfon  &zc.  his  Clerk,  and  then  he  died,  and  fo  con- 
veyed Remitter  to  the  Iffue  in  Tail ;  and  this  Matter  is  not  double,  lor  he 
cannot  convey  the  Remitter  without  exprelimg  thefe  Matters,  which 
are  the  Conveyance  of  it,  and  can't  aver  the  one  without  the  other  j 
and  therefore  it  is  not  double.  Per  Vavifor,  .Davers,  and  all ;  for 
the  one  cannot  appear  without  the  other.  Br.  Double,  pi.  92.  cites  5 
H.  7.  36. 
In  ^um  13,  la  Quare  Inipedit  the  one  Prefentment  in  the  Ancejlor  of  the  Plaintiff, 

I,„periit fnc  s^rtd  the  Other  in  the  Guardian  is  not  double.  Br.  Double,  pi.  150.  cites 
ie<y\i,  fhatN  4  E- 4'  3-  and  7  E.  4.  20. 

P.  Idd  of  him. 

certain  Land  avd  an  AdvoVi'fov,  in  CbivAlry,  and  prefented  See.  who  nvas  received  ?i.c  and  th.it  aCiiardian 
in  Right  of  the  iJeir  prrjented  &c.  and  that  N.  Tenant  is  now  dead  &c.  the  Heir  in  his  If'ard,  and  fo  it  be- 
longs to  him  to  prefent  See.  and  the  Count  awarded  good  notwithll'.mdir.g  the  z  Prefentments,  for  it  is  pnr- 

fnant ,  For  the  Prefentment  of  the  Guardian  only  is  no  Title     Br  Double,  pi.  56.  cites  24  E.  5.  97. 

Br.  Double,  pi.  154.  cites  S.C.  accordingly. Br. Quare  Impedit,  pi.  88.  S  C. 


14.  So,  of  the  one  in  the  Ancefior,  and  the  other  in  Tenant  for  Life.  Br. 
Double,  pi.  150.  cites  4  E.  4.  3.  and  7  E.  4.  20. 

15.  J^uare  hiipedit  by  M.  and  counted  that  f.  was  feifed  of  a  Manor  ad 
quod  &c.  and  after  convcfd  the  Manor  to  the  King  by  Aci  of  Parliament, 
and  the  Church  voided,  and  the  King  granted  the  fame  Avoidance  to  the  Plain- 
tiff ;  and  by  the  fame  Patent  granted  to  htm  the  Fee  Simple  of  the  Advowfon  i 
and  that  the  Plaintiff  prefented  after  the  Grant,  and  the  Defendant  dijlnrb'd 
htm ;  And  the  Defendant  demurr'd  tor  Doublenefs,  and  yet  the  Plaintiff 
recover'd  by  Award  ;  for  the  firll  Prefentment,  and  the  Aft  ot'  Parlia- 
ment, and  the  Grant,  and  the  Prelentation  of  the  Plaintiff,  is  only  Con- 
veyance.    Br.  Double,  pi.  162.  cites  loH.  7.  7,  8. 


(B.  d.   14)     Pleas  in  Bar. 

I.  'Tp  H  E  King  brought  Quare  Impedit,  and  counted  of  a  Prefentation  by 

X.     J-  S.  who  was  feifed  in  Fee  ike.  and  oj  two  others  in  hinfelj  by  the 

Ward  of  the  Heir  ofthefaid  J,  S.  and  that  the  Church  is  now  void,  and 

it  belong'd  to  him  to  prcfenr,  and  the  Delend-inr  dilturb'd  him,     Caund 

faid. 


Prefentation.  45-:^ 


faid,  'the  Clerk  alh-gd  by  the  King  to  be  iiijlitatcd  &c.  by  the  [aid  J.  S.  iv.is 
not  received  nor  injiituted  by  the  Prefentntioii  of  'J.  S.  And  it  ieems  to  be  a 
good  PJca ;  for  the  2  Prefeotnicnts  of  the  King  during  the  Cuftody  does 
not  make  Title  to  him  nor  to  the  Heir,  -without  alleging  Seilin  by  Prc- 
fentnient  in  the  Anceltor  of  the  Heir,  or  in  the  FcoHbr  oi  the  Ancellor 
of  the  Heir^    Et  Adjournatur.     Br.  Quare  Impcdit,  pi.  143.  cites  42 

E-  3-  4- 

2.  A  Man  may  plead  JVarranty  and  JJfets  defcended  to  bar  the  Plaintiff" Br.  AOcts 
in  Quare  Impedit,   or  to  have  Scire  facias  after,  if  he  has  not  AlFets  now.  pi-"''  Deicenr, 
Per  Finch,  Qj.iod  Mombray  Conceliit.     Br.  Quare  Impedit,  pi.  31.  cites  ^''P-  '^"" 
43  E.  3.24.  ',  45  £52^. 

3.  Ltnoe  ma.\  recoixr  twice  in  tzvo  ^iiarc  Impcdits  agaitifi  fever al  Dif- 
tnrlers,  by  feveralJirits  of  ^fiarc  Impedit.  Br.  Parliament,  pi.  8.  cites  46 
E.  3-  4- 

4.  Releafe  of  Ad  ions  Real  is  a  good  Plea  in  Qiiarelinpedit.     Br.  Quare  R«t  Per 
Impedit,  pi.  7.  cites  9  H.  6.  ^6.  Kolfc.Ifono 

recovers  in 
Quare  Impedit,  and  dies,  his  Heir  fliall  not  have  Execution,  and  therefore  it  is  not  an  Action  Real  Ibid. 
fif/^4/e  o/.:/ff/ow  Pfiyl'Krt/ is  a  good  Bar  in  Quare  Impedit.    Per  Porting.     Br.  Quare  Impedit,  pi  8-' 
I      cites  22  H.  6.  25. 

5.  If  the  Plaintiff  be  nonfttited  in  Quare  Impedit   after  Title  made, 
j     this  is  a  good  Bar   in  another  Quare  Impedit,  as  Nonfuit  in   \\'rit  of 

Right  after  Appearance.  Br.  Quare  Impedit,  pi.  83.  cites  22  H.  6.  25. 

6.  The.  Ordinary  cannot  fledd  in  Bar  In  Quare  Impedit  as  Ordinary  j 
Per  Bingham.  Br.  Qiiare  Impedit,  pi.  83.  cites  22  H.  6.  25. 

7.  There  were  fveral  I'crfons  and  their  Wives  Plaint  ijff's  in  a  Quare  Mo.  45?.??. 
Impedit,  the  Defendant  pleaded  the  Releafe  of  one  of  the  Husbands  pend-^z^.s.  C. — 
ing  the  Writ  ;  Adjudged,  that  this  goes  only  in  B.ir  of  him   who  made  ^'■°;  ^■^'.^: 
it' and  his  Feme,  and  that  the  Writ  fhall  Hand  good  for  the  relt.  5  1^»-T- -8&:"^^q  E- 
97.  Mich.    39  &   40  Eliz.  C.  B.  The  Counteb   of  Northumberland's  lii  Ficron 

Cafe.  and  the 

Countefs  of 
Northumberland  &  al  v.  Hall  &  al.  S.  C. 


(B.  d.  15)    Pleadings.     Tra-jerje\,     'Necejpjry,     in  whatSeeTraverfe^ 

Cales. 

X  Q^uare  Impedit,  if  the  Plaintifl' makes  title  as  appendant  to  fiicb 
Land  J  the  Defendant  foall  not  fay  that  it  is  in  Grofs  or  Appendant 
toother  Land^  iiithoitt  faying  How^  and  traverf/ng  the  Plaint.  Br.  Qiuire 
Impedit,  pi.  7.  cites  9  H.  6.  56. 

2.  The  Plaintiffin  Quare  Imped  ity^/WjT'i)^?  he  was  feifed  offuuo  Acres  s.  C.  cited 
/;/  D.  with   the   Advowfon  appendant,  and  prefented  &c.  and    now  the  accordMgly, 


and  he  prcfcnted.^  and  his  Clerk  in ^  and   now   it  is  void   again,  and  he  iSir  Kicli-- 
preiented,    Prout  ei  licuit  &c.  and  well,  without  traveriing  the  Ap-  '''ff'  H^tiiii 
pendancy.  Br.  Confefs  and  avoid,  pi.  60.  cites  15  H.  6.  and  Fitzh.  Qtia-  fh^'piea  "^  • 
re  Impeciit  77.  allowed  a  ' 

good  Plea 
\s ithout  anfwerinf!;  to  the  Appendarcy  alleged  by  the  PlaintilT,  which  is  in  Efecl:  avoided  by  the  De- 
fendant's Prefcntation  after,  and  that  in  this  Ca(e  the  Pliiinritl- was   without  Remedy,  (unlefihc  could 
tiuverfe  the  Prefentation  alleged  by  the  Defendant)  othcrwife  than   by  his  Writ  of  Kjo-ht  of  Ad- 
vow  fon. 

S  Y  3.  In 


4-54-  Prcfcntation. 


fmnSir'^nl  ^^  "  Q^i'-i^e  Iiiipcdit,  the  i'humillcou^Ui^,  That  the  Mvcwjon  ts  m 
1-  cites' S  ^'"f^^  '^"^  mtitLd  himfelj  &c.  r\\t  Defendant  faid^  That  the  AJoicty  is  to 
C.  and  P.       bim  Appendant  to  his  Manor  of  D.  and  intitkd  hnnfclj  to  every  2d.  Prejhiiment 


and  fays,  and  the  Plaintiif  to  every  fccond  Pidentmcnt  asm  GVo/j,  and  that  t  hi] 
the  Defcn'  '^  ^'"^  ^'"'"  '  ^^'^  '^  "°  ^^^^  without  7'ravcrfe  that  the  Ad-vowfon  is  not  in 
dantuT,u"d    ^^^"f^i  fiuuc&c.   lor  otherwife   it   is  only  Argument  j  for  he  has  not 


have  alleged  v-ontelled  and  avoided,  nor  1  ravcrfed.  £r.  Traverle  per  &c.  pi.  31.  cites 
that  the  Ad-  35  H.  6.  32.  33. 

vowfon  is 

.ippeti(famtoeveryfecondJvoidance,a>!tiinGrofsto  e-jery  ether  Avoidance  to' the  PUinffff,  &.  non  alloca 
tui-;  tor  his  own  Plea  proves  that  he  has  but  the  one  Moietv  oF  the  Advowlon  appendant,  and  thu 
the  Platntift  has  the  other  Moiety  in  Grofs  ;  Quod  Nota,    P^:r  tot.  Ckir. 

^}"'K^'''f        ^'  ^^'^^'^^^  common  Perfons  the  Defendant  may  traverfc  the  Title  of  the 
can   'n!i    ^    P^ainti§-s:tthont  intttlitigoj  hwfH\  but  then  he  jh all  not  hasoe  Urit  to  the 
ti-avcife  the    ^ipop.  Br.  (^are  Impcdit,  pi.  138.  cites  21  E.  4.  i.  t,.  Per  Notins^  Ch 
Title  of  the   Baron.     ■  •  a         • 

King  with- 
out intitling  himfelf ;  Per  Noting.  Ch  Baron,  which  Brian  denied  ;  bur  erroncoufly,  :u  it  feems.  Ibid. 

iTe'rooY'if  ^-  I"^"^^e  Impedit  the  Plaintilf  fatd,  That  he  prefcnt^  J.S.  ivho 
(Plaintiff)  ^'^■^  admitted,  inftitnted  &c.  and  alter  f.  S.  re/igned,  and  he  prefented, 
butfecms  ^"^  the  *  Defendant  dijlurbed  &c.  The  Defendant  fa/d,  'That  before  the 
mi'-printed    Prefentment  of  the  Plaintiff  he  himfclf  prefaiicd  the  fiid  J.  S.  zvho  was  ad- 

d'idon^.''1aS'  ""^^''^  ^^'  ""^  ^^^"^  ^^"'  ^^-'^"^'tf.  prefented  this  famej'.S.  the  faid  f.  S. 
th.-'vVordin  ^^'^"  ^'■''"S  incumbent  there,  and  lo  the  Prefentment  of  the  Plaiatiif  \oid, 
ihcYear-  and  no  Plea  i  Per  Brian  and  Vavifori  in  as  much  as  the  Delendant  ^/^ 
Bcok  is  (De-  not  traverfe  that  the  Church  was  not  'void  at  the  time  of  the  Prefentation  oj  the 
tendant.)  faid  Plaint ijf;  but  Tovvnfend  e  contra,  in  as  much  as  the  Lay  Gents 
cannot  take  Conufance  of  the  Voidancei  but  at  lalt  Keble  took  the  Tra- 
verfe. Br.  Q^uare  Impcdit,  pi.  164.  cites   11  H.  7.  17. 

6.  Where  the  Plaintiff  makes  Title  by  Appendancy^  and  the  Defendant 

alleges  two  Prefentnients  after,  there  he  need  not  traverfe  the  Appendancy  ; 

For  Ufurpation  is  fufficient  Title  in  (^uare  Impedit.     Br.  C^are  Impedit, 

pi.  149.  cites  12  H.  8.  12. 

Br.  Traverfe      7.  in  Quare  Impedit  the  Plaintilf  trow/Zf^  that  he  was  feifed  in  Fee  as  of 

per&c.pl      Grofs,  and  prefented  A.  &ic.   and  after  he  died,  and  ho  prefented  now 

2.  cues  6.  u  ^j^j  is  diilurbed  &c.   The  Defendant  fai^.  That  before  this  he  was  feifed 

in  Fee  as  of  Grofs,  and  prefented  B.  who  was   admitted  &c.  and  after  he 

granted  the  next  Prefentation  to  the  Plaintiff  who  prefented  A.  and  he  died^ 

andfo  now  it  belonged  to  the  Defendant  to  prefnt,  and  did  not  traverfe  the 

Seiiin  in  Fee  of  the  Plaintiff  ^  and  well  per  Fitzherbcrt  clearly,  for  he 

has  confefled  and  avoided  it  i  quod  mirum  ;  Br.  Confcfs  and   avoid,  pi. 

I.  cites  26  H.  8.  4. 


(B.  d  16)    Pleadings,      Traverfe.      Good;    In   what 

Cafes. 

Br.  Quai-e  i_  yisj  Quare  Impedit,  the  laf}  Prefentment  is  traverfable,  and  not  the 
S™otes'22  Pref'cription  alleged;  Quod  Nota.  Br.  Traverfe  per  &c.  pi.  99.  cites 

h:6.25.s:C.  32  H.  6.26. 

per  tot.  Cur. 

But  tefween  2.  ///  .G)!tare  Impedit,  where  the  King  is  intitkd  to  the  Manor  and  Ad- 
commm  Per-  .^(jyjfQfi  Jppgfidant  by  Ward  of  the  Heir  of  his  Tenant,  and  alleges  Prefentment 
fentracnt  ''^'  ^''  ^^^  Ancefior  ofthePhunhff,  and  that  tint  iVardfellto  him,  and  the  Defett- 
fhalibetra-   dant  makes  Title  to  him  as  in  Grofs,  attd  traverjes  the  Prefenttaeni,  this  is 

not 


Prefentation. 


455 


not  s;ood  ;  For  he  fl^all  traverfe  thcJppaidaiicy;  becaule  this  is  the  Title  ol'vx-iiL-d.and 
the  kin- i  QtiodNota,  by  all  the  Jultices  alter  great  Argument.  Bi'.J^'jJ^Jl'" 
Traverleper  ^c  pi.  257.  cites  co  E.  4.  13.  &  14.  fu,.  the  Pi'c- 

fcntment 

makes  Poffeffion  ;  Per  Collow    Rr.  Tiavcrfc  per  &c  pi.  257.  cites  20  E.  4  1;.  14. hut  yet  -v^here 

l^th  the  Fartiei  clniiii  Ly  one  and  the  fume  Per/on,  and  the  one  claims  in  Grol.s,  and  the  other  .-"s  appen- 
dant there  the  Appcndar.cy  fhallbe  traverlcd  ;  Per  Collow  ;  to  which  Littleton  and  Bryan  Juftices 
agreed.     Br,   Ibid Br.  Travcrfe  de  Office  pi.  40.  cites  20  £.  4.  14.  and  21  £.  4.  i.  S.  C. 

3.  In  Quare  Impedit,  the  I'ljhitiff'madc  q'ltlc  that  his  Mother  was ft:if-^'--^<^Z^''^- 
ed  and  p-cjliitcd,  and  Jhe  dud,    and  the  Church  voided,    and  the  ii//Z.'o/)  ^^^m'^  |,'- 
prcfcnted  i  and  the  Bijhop  faid,  that  the  Church  voided  in  the  Time  of  the 
Mother  of  the  Flaintiff,  ly  which  he  prefcntcd  by  Lapfe,  ablque  hoc  that 

the  Church -voided  ^yW  the  Death  of  the  Mother   of  the  Plaintilf,    and 
the  Court  held  the  Abfque  hoc  good.  Br.  Traverfe,  per  &c.  pi.  175. cites 

I  H.  ".  9- 

4.  In  Quare  Imped  it,  the  Plaintiff  [aid,  that  he  was  feifed  of  the  Ad~  S.  C.  cited 
liowfon  &c.  and  prefented,  and  now  'the  Church  is  void  &c.  The  Defcn-p  Y^"?''^'" 
dant  faidy  'That  it  is  appendant  to  the  Manor  of  D.  whereof  his  Aticcjlor  was  [^l^iffff^^^ 
feifed  and  prefented,  and  conveyed  the  Manor  to  himfclf  by  Abfque  hoc  that  sriiffon  0. 
the  .''ivvw\on  IS  m  Grofs  ;  and  no  Plea,  by  realbn  that  he  did  not  deny  2Jnr.plr» 


.cues  io  M.  7.  27.  ^^f'-''*t 

P.'.unt-ff  :n~ 
tiiles  hiwfeiniy  Prcfcnt^Jim  as  Jppn:iJ.i7ic),  and  the  Deniand.tnt  pleads  another  Pkaahftjue  hoc  that  the  -•>'(/- 

lo-iLJhi  v;as  Appendant,  tlii.s  is  a  good  Travcrle.     Br.  Travcrlc  per  Sec.  pi.  5S4  cites  10  H.  "•   ^T-- 

Sc  ir  le  tr..verj'es   the  Pre/en! nient  ;  For  every  of  them  defiroys  the  Deciu-.-.-lion  of  the  Plai).!'ff.      br.  Ibid. 

(■;uare'Im-editby  Lord  Buckhurft  agaialt  the  BifliopulChichcrur,  and  T.  Bickley,  for  the  Vicar- 
a"c  of  VN'eltheld,  and  counts,  that  the  Jdvou-pn  of  the  Fuar.y-c  appertains  to  the  Recioyy  of  IFepfei^i, 
.^hereof  he  was  feifed  in  Fee  &c  and  prefented  M.  Sackvtl,  iil.o  ctv/  admitted  &-c.  and  inducted,  and  that 
the  \  ■carafe  was  of  the  yearly  Falue  of  8  /.  and  void  by  his  Acceptance  of  another  Benefce,  and  the  p.-iin- 
i-ffprefcnie'd,  and  (he  Defendants  difturbed  him  &c.  The  Bijlop  pleaded,  that  Richard  lis  Predeceffcr  was 
rf//'?<Vofthe'Advowibnot'the  faid  Vicarage  in  Fcp,  as  of  an  .-Jdiowpa  in  Grojs,  and  collated  10  it  (hc:ir,g 
void)  one  Maurice  Berkley,  who  was  inducted;  th.it  the  fa'd  Bilhop  died  ;  that^the  Defendant  was 
rrMtpd  RifhoD    and    fo  became  feifed  of  the  Advowlbn,  .and  being  lb  fciftd  the  Church  became  void, 


mc 
he 


the  faid  ^L•S.  having  taken  another  Benefice  with  Cuie,  and  he  collatedthc  other  Defendant  T.  Bick 
kv  nr.di  raverfcd  thai  the  Fkaragc  appertained  to  the  faid  Rechry  ;  and  the  laid  Bickley  pleaded  the  fam 
PleV  Atid  upon  a  <>ecial  Demurrer  to  thefe  Picas,  for  ih.it  t.ie  Appendancy  was  not  traverlable,  thi 
Court  aoreed.  That  (though  in  many  Cafes  the  Books  are,  that  the  Appendancv  is  traverfablc,  yet)  as 
thsCafe'ts  here,  the  Jppendancy  is  not  travcrfable  ;  fur  the  material  Parts  oi  the  Declaration  are  theSeifn 
in  Fee  the  Prcfenlation,  the  Jdmijfwn  and  Inftitution  of  his  Clerk,  aysd_  the  Avoidance,  fo  that  it  is  not  ma- 
terial '  whether  the  Advowlon  was  Appendant  or  in  Grof.;  a:id  tiievcfure  when  the  Appendancv  fhaH  be 
travrfcd,  it  ought,  upon  the  Matter  ihewn,  to  be  material,  or  elfe  th.e  Tr.averfe  is  ill.  As  if  the  Plain- 
t'!*cou:  t'sofa  fcciUnofan  Advowfon  in  Grofs,  and  that  he  prelcnted,  and  the  Cinirch  becime  void 
£cL  if  the  Defendant  fays,  That  be  was  ieifed  of  the  Manor  to  which  the  Advov.  Ibn  bel  .rgs  w  hich  be- 
cair'e  void  ar-dhe  prefented,  ablque  hoc,  that  the  Advowlbn  was  ia  Grovs  ;  the  Court  licld  this  to  be  no 
pica    and'cited  10  H.  7.  27.   And  it  was  faid,  That  notwithfr.udirg  the  Book  there,  the  Law  will  be  the 


was  principally  relied  on  as  warranting  the  Judgment,  which  he  lays  it  fully  does,  it  being  adjudged 
for  the  fame  Reafon  there,  that  the  Seifin  in  Fee  of  the  Advowfon  in  Grols  was  not  traverfablc,  but 
t^e  Prefentation  was,  as  it  was  in  this  Cafe  adjudged  that  the  Appendancv  was  not  traverfablc  hut 
the  Prefentation.  Ard  Ld.  Vaughan  did  he  obferved.  That  in  ^.D.  SUChl)UrC'£  Caff  it  is  admit- 
ted that  the  Plain'::!!"  in  the  Cafe  of  10  //.  7  •  did  count  that  he  was  fefcd  of  the  Jdiowfon  in  Grofs  and 
prt'cnted,  whcrea.-:  he  faid,  he  noted  that  the  original  Cafe  in  the  Book  is,  tlrat  he  counted  only  upon  his 
F.rfeniation,  and  lay.s,  t,liat  probably  it  was  fo  for  the  Realbns  given  by  Lord  Hobartin  ©Ijiip'S  (iaiV, 
that  a  hare  Prefentment  is  nily  militant  when  fo  alleged  by  the  Platntiff,  and  m.:y  be  in  fuch  a  Caje  as  may 
tro%e  the  Leiendant  to  h^ne  a  Right  of  prefenting  at  the  prefent  J'i.oidance,  if  noRigit  be  alleged  by  the 
Flainliffwhy  he  Ihiuld prejent  ;  w'i'.eiice  he  collects,  that  in  botii  thele  Cafes  of  10  H  7.  and  this  of  the 
Lord  liuckhurlf'',  though  there  were  a  manifelf  Liconfidcncy  in  the  firft  Cafe  between  the  Plaintiils 
Court  that  he  was  feifed  of  the  Advowlon  in  Grofs,  and  prefented,  and  the  Defendant's  Title,  that 
hewas'leifcdof  a  Manor  to  which  the  Advowlbn  was  appendant  ( for  it  w.as  iirpollible  it  fliould  be  ap- 
pendant for  the  DTendant,  ard  in  Grols  for  the  Plaintiff)  u-d  in  the  JLD.  BUfbijUrft'^f  (iLSl'C,  who 
counted  [hat  be  wasleifed  of  the  Rettoryof  Wefificld,  to  which  the  Advowfon  of  liie  Viciraj^e  be- 
longed, and  the  Defendant  made  Title,  that  he  wai  fdlcd  oi  the  Advowfon  i;i  Gro's,  which  Titie.s 


456 


Prefentation. 


■vverc  directly  incoiifllknt,  yet  neither  the  Scifin  in  Grofs  in  the  firft  Cafe,  nor  the    Appcndancy  iti 
tlic  iail  Oil-were  traverlablc,  but  tlie  Prelentaiion  of  the  Phiintifls  in  bcjtii,    whicii   made  th^ir  ip.ime- 
riiatc  TitlcN  to  prelcnt  at  the  next  Avoidance,  whether  there  were  a  Scilin  it  Grofs,  or  an  Appcndan- 
cy  or  not  when  tlic-y  firft  prd'ented.     As  in  thefe  two  Cafes  the  true  Rcafoii  of  the  Law  appears,    why 
the  Seifin  in  Grofs  ot  the  Advowfon,  nor  the  Appcndancy    of  the  Advowfon   allet;ed  by  the  Plaintirts 
■i\erc  not  traverlahle,  but  only  the  Pre  entation,     by  tliefc  Cafes   the  Lord  Hobart's  Scruple  la  ^igs 
fcP'f'  (iftlt  is  latisfitd,    w  here  he  thinks,  that  it  a  Man  has  gained  a  Title  by  Uurpation,  at  thj  next  A-  ■ 
voidance  he   niuft  not  declare,  that  he  was  foiled  in  Fee  formerly  of  the  Ad /owfon,  and  prelciited  ;  but 
niuft  declare  fpecially  of  the  true  Patron's   former  Prefentation,  and  then  the  Cliurch  becomlT'g   void, 
that  hinifelf  prelcntcd,  leaft  otherwife  by   dcclavir)g  that  he    was  leifcd  of  the  Advowlon    in  Fee,   the 
Defendant  fhould  trice  him  by  traverling  his  Seifin,  whicliwas  falfe,  when  m  Truth  he  had  aKiglitco 
pre'ent  by  Ufurpation  ;  For  by  thcle  Cal'es  it  is   clear,  that  the   Seilln  in  Grots  nor  Appendaucy  arc 
travcrfi'.ble,  th(  uj^h  alleged  by  the  Plaintiff  w  iicn  lie  Iras  gaired   a  Tide  by  Ui'arpation,  but   the  Pi'e- 
fcntation  ought  to  be  travcrfed. —  but  if  the  Plaintifi  declare  the  Advowfon  to  be  appendant  to' a  Mar.or, 
ard  withal  lets  forth  in  his  Declaration  the  Letters  of  Prefentation  to   the   Church  as  appendant,  there 
the  Defendant  may  tiaverlc  either  the  Appendancy   or  the    Prefentation;   for  though   the  Advo.Vibn 
were  appendant,  yet  if  the  Plaintiff  prelented  not,  he  had  no  Title.     Whence  he  infers,  that  ii'  the  Plain- 
tiff i'.ad  counted  of  a  6eilinofthe  Alanor,  to  which   the  Advowfon    w3suppendant,   witrjout  iTicwing 
the  Prelcntment  to  be  to  the  Church  by  Virtue  of  the  Appendanv-V,  the  fraverfe  of  the  A,.pc,.u;t  icy" 
bad  not   been  gord;  but  it  mulf  have  been  of  the  Prefentation,  which  might  ha'.'e  been  by  L'hicat'.on, 
iiotw  ifhflarding  the  alleging  barclv  of  the  Appcrdancy,  as  is  refblvcd  before   in  the  Point  in  the  ILorD 
l£Ui.'t\l)tirC;'jl5  Saff  in  Ander  on,  and  in    the  principal  Cafe  of  to  H.  -.     But  when  the  Cou"t  i>  or  ;he 
Appei  df.r.cy  of  the  Advowion,  and  alio   of  the   Prefentation   to   it  ao  appendant,   there   could   be  no 
Ufinpation  according  to  the  Refolutions   in  *>ir  ii"  Clirj' ©iltillil'^  (iSft   in  the  Lord  Hohart  and  in 
G.  Vtm'^  (iLfiff  in  the  6th  Keport  of  the  Lord  Cook  ;  ard  he  fiiid,  tliat  the  not  obfcrving  of  this  Differ- 
ence made  the  Reporter  at  the  End  of  the  JLOfD  3clU"t.i)t.Vfi'S  (tSfe  deny  this  latter  Part  of  the  Cafe 
in  10H.7.  bccaufc  it  was  clearly  againfl  the  Realon  of  the  principal   Cafe  in   10  H.  7.  and   agairft  the 
Kcfblution  of  the  ?Lor'D  ]tBiU"kbUrfi'0  (iafc,  if  the  Words  of  fnewing  the  Prefcntnieut  to   have  heeti 
as  appendant  had  been  emitted  in  the  Cale  ;  but  thofe  \A  ords  make  tl.e  latter  Cafe   in   ir  H.  7.  exa^rtly 
ro  agree  with  the  [udgments  both  in  Sir  Henry  Gaudie'sCafe  in  Hub.  and  Green's  Cafe  in   the  6th. 
Kcp]     Per  Vaughan  Ch.  J.   Vaugh.  15.  in  Cale  of  Tufton  v.  Temple. 

Br  Ouarc  5-  Where  the  T'itk  of  the  Plaifitiff'  is  to  the  Manor  and  Jd-jc-xfon  ^p- 
Impedit,  pi.  pe/idaf/ty  and  that  the  Defe?idant  dij/eijtd  him  of  the  Manor^  and  the  Dc~ 
4  •^'^^^^^■^fj  end  ant  fays.  That  it  is  yippcndant  to  jour  Acres^  ^v  hereof  J.  A^.  ivas  fet^'ed 
~    77   ■    '  and  infeoffed  him,   there  the  2)//7t7///v  ot" the  Manor /j  not  traverfabl: ^  hut 

cued  by  . ,. .      -^    -"  ,  '  ,        i,  ,     -^  -  ,      ,■  »  a-v       j    %.  ;       ' 

Yiur'hunCh.  if  it  was  appcnaant  to  the  Alanor  or  to  the  jour  u'icres;  (^uod  isota.  ax, 

J.vtugh.i2.  Traverle  per  &c.  pi.  8.  cites  27  H.  8.29. 
Hill  17  & 

18  Car  2.  and  fays.  This  Traverfe  was  adjudged  not  good  ;  For  the  Difleilln  or  Non-dilTeifin  of  the 
Mai-or  was  not  material  to  intitlc  the  Plaintift  to  the  <^ua  Imp.  but  all  his  Title  was  by  the  Appendan- 
cy of  the  Advowfon  to  the  Manor,  and  therefore  the  Traverfe  ought. to  have  been,  and  was  lb  relrvved, 
to  the  Appendancy  which  deftroyed  the  Plaintiff's  intire  Title  to  prefent,  and  v/as  atfo  inconfiifent 
with  the  Defendant's  Appendancy  of  the  Advowlon  to  his  4  Acres. 

S.  CLitt.  6.  In  a  Qj-iare  Impedit  for  the  Church  of  Chelmsford  the  Plaintifi  y^/ 
Ecp.  K-ar-y^^,^,^  fjy.jf  ^^^q'^  yj,/  r^^s fifed  and  prefntcd  P.  and  then  -leafed  the  Ala- 
^ud't'men"--  '^"''f  ^°  ''•■^hich  the  Jdvowfon  was  Appendant ,  to  the  Plaintiff.^  and  that  the 
Vaugh.  16.  Church  became  void  lythe  Reftgnatton  of  P.  6cc.  whereupon  it  belonged  to 
in  the  Cafe  the  Plaintiff  to  prelent.  The  Defendant  confeffcd  the  Title  of  Sir  T.  M.  -nd 
of  Sir  John  ff^c  Leafe  made  to  the  Plaintiftj  and  pleaded  over  a  Simomacai  Contrail^ 
Sir  Ri'chard  "/""'  "^^^'^^  ^^  was  prcfented,  which  letng  void  by  the  Statute  of  31  Elii.. 
Temple,  the  King  prefented  the  Defe?idant,  who  was  admitted,  inllituted,  and  i»- 
cites  S.  C  duSed  theron,  Abfqiie  Hoc,  that  the  Church  became  void  by  the  Rfignati'u  of 
and  fay.s,  p_  ^j,j  ^^^^  Demurrer  it  was  obje£ted,That  this  Traverfe  is  iW;  For  ihQ 
'^'^tithe  ■  Prefentation  is  the  principal  Thing,  which  being  contelled  and  a  olded, 
Defendant  Cannot  be  traverfed  i  But  all  the  Court  conceived  the  Plea  good  j  For  the 
doth  admit  Plea  makes  the  Traverfc  argumentative  onh',  that  he  might  net  rciignj 
the  Advow-  ^^^  being  alleged  that  the  Church  is  void  Per  Mortem  vel  Religna- 
Grofs  or'"  tioncm,  or  otherwife  it  ought  to  be  confelied  or  traverfed;  For  that  is 
Appendant,  the  Caufe  of  his  Prefentment,  and  the  IJiie  ought  to  have  teen  Si  vacavit 
inxhc  Ph'm- p^r  Jl^ortem,    vel  Dcprivationem,  •'jel  Rfignationem ;   For  the  Prefentation^ 


u(f,^^<iip^^  j(f„ii/fon,  and  Injiitdtion  are  conducing  only  to  the  Reftgnation,  and  the 
"hcmTsin-  Relignation  or  Avoidance  is  the  chieieit  Matter.  Cro.  J.  61.  pi.  6.  Mich, 
crtnfiftent      2  Jac.  C.  B.  Fenner  v.  Nicholfon  and  Pasfield. 

w  ith  the 

Tiilc  made  '';•'  the  Defendant,    he  fnall  not  traverfe  the  Scilin  in  Grofs,  nor  the  Appendency;  but  be- 

caufe 


Prefentation.  457 


caufe  fomewliat  clfc  is  neccllaiy  to  give  the  Plaintiff  Right  to  prcfcnt,  viz.  tiie  Vacancy  ot  the 
Chiii-cli,  eitlicr  by  I'cath  orKcfignation,  or  Deprivation,  wluch  the  Plaintiff  mud  allege,  aid  whicU 
Bi-e  inconfilknt  with  the  Defendant's  Title,  w  ho  claims  not  by  Vacancy  by  Death,  Kclignatiun,  or 
Deprivation,  bur  hy  the  Simony,  therefore  he  fliall  traverfe  the  Vacancy  alleged  either  by  Death,  Ke- 
Agnation,  or  Deprivation,  as  the  Ca(e  frills  out,  without  one  of  which  the  Plaintiff  makes  no  Title,  and 
iftheprefent  Vacancy  be  by  either  ofthein,  the  Defendant  hath  no  Title. 

7.  Sir  Henry  G.iwdy  Knt.  brought  a  Ouarc  Impedic  againll  the  Arch-  ?  C.  cited 
biliiOpofC.  Sir\\\B.  and  H.  R.  Clerk,  and  co//)ird,l  that  Sir  R.   S.  '^2'''"  ofsiJi  Voifn 
ftifed  of  the  Manor  of  Popenko  in  Norjclk^  to  which   the  Advowfon   was  x ^fro,,  y 
Appendant,  ana  prefvnted  A'f.hiaCAark^  ichoivas  injlittited  and  indulled,^\vKic\urii 


_,  „         .  ^  ,  ,  ,  -ay>,    - 

Metropolitan,   prejented  by  Lapfe   one  Sncll^    aW  bv  mean  Q)nveyancC3  this  Ca'e  the 
derives  the  Manor.,  to  v\  liich  the  Advowfon  is  Appendant  to  hnnfeif.,  and  Traverfe  of 
tkat  by  SneWs  Death  it  belongs  trbi:a  to  prefent,  and  isriilturbcd  by  the  Dc-  ^'"^.f^'b'^'the 
t'enuants  i  The  Archbilhop  claims  nothing  but  as  Ordinary  Sede  vacante  Defendant 
ot  the  Bilhop  ot'Norvvich.     Sir  W.  B.  pleaded  Ne  Dilturba  pas  and  H.  was  dearly 
the  prelent  bicumbctn  pleaded.  That  he  was  Parfon  by  the  King's  Prcfenta-  Cod'  ^"^  '*' 
tm  i  and  that  long  before  Sir  R.  any  thing  had  m  the  Manor ^   'i^.  Elizabeth  t|'|,'"p[!;fr,\[j^-' 
waifeifed   of  the  Ad\owfcn  /;/  Grofs  in  Right  of  the  Croii'n.,  and prefented  Gawdv  had 
.y^t//,  and  that   ihe  dying  feiled,    the  jldvo'xfon   defended  to  King  janies.,  no  more,  not 
and  he,  being  feiled  and  the  Church  becoming  void  by  Sneli's  Death,  "'^'i'-"'' Title 
prefented  the  Defendant  H.  R.    '■j:;ho  ivas  injlitntcd  and  indntied^  Abfqiie  hoc,  ^^^f^'^ll 
that  the  yldzvjufon  is:ai  ^jf'eiidant  to  the  Manor  ot  Popenho,  and  thereup-  Appcn'dancy 
onlifue  was  joined.  Hob.  301.  pi.  380.  Hill.  17  Jac.  Gawdy  v  the  Arch-  of  theAd- 
bilhop  of  Canterbjiy  &  al.  '  vowfon  to 

'^  the  Manor, 

and  the  Incumbent's  Death  ;  and  the  Appendancy  to  the  Manor  was  inconfiflent  with  the  Defendant's 
Title  bv  :lie  Advowfori's  being  in  Grols.  And  this  proves  that  the  Traver;e  is  a.-f //  taien  lo  the  ^-tppen- 
dancy  of  t\ic  Advovji'ot^  ■i>.hen  it  h  rJl  the  Plahififf'j  7i/!e  to  prcfiitt,  atid  is  inroij.'fitnt 'u.-ilh  ihe  Dejei" 
Jaiit's.  E:it  ill  Gaivdy's  Cafe,  the  jfir.j  joiivd  SpeciaHy,  7hat  Sir  R.  S.  w.rj  fnjed  of  the  AJar.or  •ujith 
the  j^d\\V.J<t>i  Jppcr.davtt  i:}:d  preferited,  and  that  the  Tmumber.t  dying  the  feccnd  of  Fehrtiary,  H8;i. 
the  ^icen,  tie  l^thofFel.  the  fame  }  e^ir,  prefented  Sue  1 1  to  the  Chnnh  then  void  Per  Mcrlew  \atura!em 
ukimi  [r.cf.mhentis  ibidem  -j-xcintem,  ct  ad  noflr.im  I'rxfcritiiiomm  Jure  Pr^ro:rat/i.i  Corona  noftra  Jn%lu:. 
fpeci.xniern,  cir.d  her  Clerk  inflituled hy  Letters  ^  irifhittition  Rur.ring  Per  Lowiii.ir/i  Reoiiiam  I  eravi  &  Iridu^ 
bitiUam,  ut  di^iliir,  Patre;:am.  And  ^ftcr  ihc  L'ealh  of  Snell,  Kiiiir  J'.tmes  prefented  H.  Rone  in  thcih  Words, 


Pr 

Sleuth  of  FebruAi-y,  wherein  t;!e  Avoidance  was.  ^dly.  If  the  Q;jeen  had  preleitedbv  Lapfe,  it  had 
made  no  Severance  of  the  AJ.-owfon.  4thlv,  That  the  (Queen's  Prc'eatation  made  no  Uurpati-n,  he- 
cau'c  fhe  prcfcvited,  as  fuppofing  fhc  liau  a  Title  in  the  Right  of  her  (Irotvn,  as  appeared  by  the  Form 
of  her  Pre'.enration,  which  is  very  remarkable,  and  tlicrctore  licr  Prefcnratioi  was  m.-rely  void  ;  For  ic 
fhallnor  be  intended,  the  Qiieen  took  away  another's  Right  ag  linft  her  own  Will  and  dsclared  Inten- 
tion. 5i..''v,  For  the  fame  Reafon  Kirg  Jair.e.s'.s  Pre:'cr.t:<tion  of  Rone,  who  by  tlie  Form  of  his 
Prefenrat;;..'.  fuppo'ed  he  had  a  good  Title,  wlien  he  lud  none,  v\asallb  void;  And  this  a;>-rces  with  the 
RefoKition  1  .  Green's  Cafe  the  6th  Rep.  tliat  the  Queen's  Pielcntasion,  ;us  made  by  Lapie,  when  fhe 
had  no  fuch  Title  to  prefcr.t  by  Lap'.V,  but  a  iother  Title  either  in  Right  of  lier  Crown,  or  by  Sinwiy, 
or  fome  other  Way,  w.i:,  void,  becmfe  fnc  was  miftaken  in  her  Prefentation  ;  fo  if  fhe  prefcnts  by  rea- 
fon of  fbme  fuppo'cri  Title  in  her  Letters  of  Prefsntation,  when  i  •'d,-ed  fhe  lias  no  Title  at  all,  the  Pre- 
fentati'in  is  mcrL-'y  void,  and  though  fiijh  Prefentation  makes  a  Plenarty,  fo  as  to  avoid  Lap'e,  vet  the 
right  Patron  is o'u  of  PoffefTion,  but  may  prefent  7  Years  after,  and  if  his  Clerk  be  ind'i'.'t.-J,  the  for- 
mer Prefentee  is  immediately  culled.  Vaug.  1  5.  citcHj'j  501.  Sirfl-'iry  Gawdy's  Cafe. 


King  R  S.was  feifed  in  Fee,  and  prefented,  and  died  fei fed  ■,  And  that  itcoidifgly 
defcended  to  Ed.  6.  and  fo  to  ^iieen  Mary  and  Elizabeth,  'i.vho  being  feifcd  '''or  the 


made  litk,  and  the  Dejendant  zvas  inftituted  and  indiifica.     The  Plunti^'\-^.<.c\z  that 

J  Z  replied^  ''cdiunut 


6. 

ima 


45 


cS  Prefentation. 


die  fcif.-d,  replied,  and  tcok  Protijiiition  of  the  Seijin  of\&.  Marj^  .W.  KltzaLctb^  and 
forl'i'rou'l  ^^'^'^''"^  King^andJorPka  cvnfipdtht  iSaJin  o]  thiPhunti^ff  6^1.  :ind  the  Seiiin 
to'bc  n'l"^  "■  of  H.  8.  and  Ed.  6.  ^//(^  ?/7^«  (tcrivcd  a  Title  to  himfelf  lunkr  a  Gm»t made  of 
vci-!i-d.  2dly,  t'he  Advovvibn  hj  Kd.  6.  And  that  ^uru  Elizabeth  prcfcuted.,  but  that  the 
the  Court  fame  was  by  Lapfc  ;  And  that  by  tne  ]3eath  other  Prclentee,  it  now  be- 
hcld  t!ic  longs  to  the  Piaintirt'to  prefent,  Abfqueboc^  that  King  Ed.  6.  died  feifed 
oAbcHnccn  ^^-  ^^^  upon  Demurrer  it  was  objected.  That  he  docs  not  traverle  the 
robe  vv^il  Seiiin  oi"  Queen  Mary  and  Elizabeth,  and  their  dying  ieiied,  nor  the 
confciTcd,  Prelentments  alleged  by  reafon  oi'the  Seiiin  in  Fee,  bur  only  lays,  That 
by  Uyiio-,  j.[^gy  ^.^j.^  j^y  Laple  ;  But  as  to  this  Point,  the  Court  held  the  Keplica- 
bv  Lipfc^-  '^'""  ^^'^^^  enough  i  For  the  Dyifig  feifed  ivas  the  principal  Alatter  to  be  tra- 
Foritijnot  vcrled,  and  the  other  wtXQ  but  the  Confei^iieiits  thcicoi,  and  the  Plaintiff 
iillegcd  LC1--  may  traverfe  any  Part  of  the  Detendant's  Plea  ;  And  ib  a  tomier  Juds;- 
'i*'r|v'  .'^'"'^  mcnt  was  affirmed  in  Errors  But  becauie  the  Plaintilfin  the  rirlt  Action 
Drcrcmcd  as  '^'^"'^  pending  the  Plea,  the  Entry  of  the  Judgment  was  itaid.  Cro.  J.  650. 
Vera  Pa-  Mich.  20  Jac.  B.K.  Savii  v.  Thornton, 
rroiia,  hut 
only  that  flic  U  Seifcd  in  Jure  Coronx,  and  fo  feifed,  prefented  f^cnerallv,  without  faying  either  the  one 

Wdy  or  the  other,  and  then  the  f.iynig  it  was  *  bv  Lapic  was   a  good  Avoidance [*  The  C^rigi- 

nal  has  the  Word  (Not) 'but  it  fcems  mifprinted  ] S.  C.  Winch  15,  14.  but  it  feems  very  im- 
perfectly printed  ;  For  after  the  Gi-ant  pleaded  to  be  made  by  E.  <5.  and  that  the  Prcfe  ntmcnt  made  by 
<^ieen  Eli/.abeth  wa,>  by  rea'bn  of  Lapfe,  it  fays,  "  That  Q^jcen  Eii/.abeth  prefented  L.  only  Ab'  uc 
*Mioc,that  E.  6.  granted  &c  "  So  that  theWoids  (prelented  L.  only)  mull  be  printed  probably  according 

to  the  fliort  VVtiting  in  the  iManul'cript,  whence  it  was  taken,  inftead  ot  (nrefenteJ  bv  Lapfe  only.)- . 

.S  C.  Palm.  ;o6.  and  there  i  1 1 .  it  was  refolved  that  the  Traverfe  ot  tlie  Dying  feiled  ot  K.  6.  was  good, 
bccaufe  it  w:'s  material  to  the  Title  otthe  Defendant,  and  if  this  be  jrue,  it  will  deltroy  the  Plair.'.ifF's 
'I'ltlc,  and  for  that  Reafon  he  ought  to  traver'e  it  ;  But  if  the  Defendant  had  commenced  Wu  Title  by 
the  Prelcntment  of  the  Queen,  in  fuch  Cafe  the  Prefentment  fhould  be  traverfed  ;  And  they  agreed, 
That  wlien  the  Queen  prefented  by  L.ipfe,  this  is  as  Supreme  Patron,  and  not  as  Supren;e  Ordinary  ;  And 
therefore  though  the  Allegation  of  the  Defendant  in  Bar  is,  that  the  Queen  prelented,  yet  this  is  well 
confeiTed,  and  avoided  by  the  Plaintiff  in  the  Replication,  when  he  fays  t'lat  tliofe  Prelentments  were 
by  Lapfe;  For  Prefentments  by  Lapfe  maintain  the  Poflclfion  of  the  true  Patron,  and  do  not  gain  any 
Patronage  troni  him.  z  Roll.  Rep.  259.  S.  C.  but  notS  P. 

9.  In  a  Quare  Impedit,  the  Plaintiff  entitled  himfelf  by  Grant  of  the 
next  A^  oidancc,    and   that  7'.  C.  ivas  prefented^  admitted^  injitiitedy  and 
induced  i  And  that  the  faid  Church  became  void  by  Jcceptance  of  a  ftcond 
"  Qaa;re  if   Benejice  above  Value;  The  *  Archbilhop  pleaded  a  Plea,  to  which  there 
this  thould     was  a  Demurrer  ;  and  S.  the  Incumbent  pleaded  a  Plea,  and  traverfed  that 
not  be  (Bi-    (jf  Q  ^^^  admitted  and  inji tinted  therein  ■,  and  upon  this  they  were  at  ItJue, 
om'cA^cliO   '^""^  ^  ^^  '"''^  awarded  to  the  Archbilhop  for  that  Trial ;  But  afterwards  the 
Plea  of  S.  being  adjudged  ill,  a  Repleader  was  awarded,  becaufe  thcln- 
du&ion.,  being  alleged.^  ought  alfo  to  have  bee-n  traverfed  ;  whereupon  S.    a- 
iDended  his  Plea,  and  traverfed  the  Admillion,  Iniiitution,  and  Induc- 
tion;  III ue  was  joined  thereupon,    and  found  lor  the  Plaintiff  j  Aiier- 
wards  Error  was  brought,  and  among  other  Things  it  was  affigned,  that 
the  Repleader  was  not  well  awarded ;  For  that  the   Iffue,  uhich   was 
joined  before  the  Writ  awarded  to  the  Archbilhop,  was   well  enough, 
and  needed  not  any  Repleader  j  But  all  the  Court  Contra,  and  that  the 
Repleader  was  well  awarded  j  For  the  Induction  being  alleged,    as  well 
as  the  Iniiitution,  there  ought  to  be  a  Traverfe  to  it,  which   alters  the 
Courfe  of  the  Trial  according  to  the  Cafe  in  22  H.  9.  27.  &  2  H.  4.  17. 
fo  as  rt  fhall  be  tried  Per  Pais.   Cro.   C.  379,  3S0.   pi.  6.  Mich.   10.    Car. 
B.  R.  Stevens  v.  Facone. 
2  Jo.  3.  S.C.      10.  The  King  counts  that  J^tieca  Elizabeth  was  feifed  of  the  Advowfbn 
by  the  Name  of  the  Church  of  Northfield  i»  Grofs  in  Fee  in  Jurt  Corona,  and  prefented 
v^\'e^rvir^  o;/f  IV.  &c.  and  fo  derives  a  Title  to  himfelf.,  and   that  the  Church  became 
adjudged  ifor  ^^^^  ^Y  "^he  Death  of  the  faid  ^V^   and  lb  it  belonged  to  him  to  prefent, 
the  Defen-    but  the  Defendants  dillurbed  him.  T.  J.  one  of  the  Defendants,  pleaded, 

dant. that  before  the  Prefentation  of  the  ^uecn,    his  An^cftor   R.   J.  was  feifed 

T '^  Vc  "^  ^^^  ''-f  ^^'^  Manor  of  N.  towhich  the  Advowlbn  of  the  Church  was  and 
5.  The^'Ar-    '^  appendant,  and  that  it  became  void  by  the  Death  of  the  then  lafl  hicttm- 

iruments  of  bcnt. 


Prefentation 


459 


knt,  and  fo  continued  for  2  rears;  ivhcrenpon  the  .G)iiec!i  prefcntai  the  fj.id  IV.  ^'\■ild,  Ar- 
ly  Lapfe,    and  then  derives  a  I'ltk  to  hnnfelf  oi  tlie  faid  Manor  and  Ad-  £l^^''"'  '""* 
\owlon  i  And  that  his  Anceltor,  whole  Heir  he  is,  upon  the  Death  of  W.     ■ '■'■'^'  -'^■ 
granted  the  next  Turn  to   \V^.  R.   who  prcfented  J.  S.  who  was  inlli- 
luted  and  inducted,  and  died,  and  that  he  prcfonced  the  other  Delendanc 
Hunklcy,  and  traverfed  the  Queen's  AV///>;ol"the  Ad\  owlon  m  (irofs  ;  the 
Attoinoy-General  replied^  and  maintains  tiieSeilin  of  the  Q^ueen,  and  fo 
of  theprefent  King,  and  that  the  faid  IV.  R.prefentcd  ly  U/in-patio!/,    and 
trai'erjed,  thjt  the  yldvo-wfon  ol  the  Church  was,  or  is^  appertaining  to  the 
Manor,  and  upon  a  Demurrer  to  this  Replication,  the  Detendant,  the 
Patron  T.J.  had  Judgment.  Vaughan   Ch.  J,  obfervcd   the  Faults  on 
both  Sides  in  this  Pleading  ;  And  rirll  the  Fault  in  the  Pica  where  the 
Dependant  had  not  well  traverfcd  the  Kings  Title,  it  being  only  in  Parti 
For  he   tra\erfed   only  the   Seilin,    w  hen   properly   he  jljotild  have  trar 
verfedthe  Scijin  and  Prefentation  of  the  .&itcen  by  reafon  of  her  Salin,  (viz..) 
Mfqiie  hoc^  that  the  ^aecn  was  feijedof  the  Aavowfon  m  Grofs  and  frrcfentcd. 
Tht  Seilin  01  an  Ad\ovv  Ion,  makes  not  a  Tiiie  alone,  nor  is  it  traver- 
fablei  But  there  being  no  Demurrer,  ncr  Iliue  theieupon,  he  would  not 
lay  any  more  to  it.  Fie  fiid  that  the  Delendant's  Travcrle  \v  as  not  necel- 
Ihry,  becaule  he  had  conlelied  and  avoided  the  Queen's  Prefentation,  by 
laying  it  was  by  Laple  ;  And  it  he  hadrefted  there,  the  Attorney  Gene- 
ral  ought  to  have   maintained  his  Count,    and   tra\er!ed   the   Queen's 
Prefi:ntation  by   Laple,     whereas  he   delerts  making  out  the  King's 
Title,  and    falls  upon   the   Defendant's  Title,   viz..)  that   the  Ad\ow- 
Jbn  was  not  Appendant ;  And  he  oilers  a  Double  Ifjiie  \  iz.  that  the  Prefenta- 
tion of  W.  R.  was  by  Ufurpation,  and  that  the  Advowfon  ivas  not  Appendant 
totheManor.  Judgment  lor  the Dclendant.  Vaugh.  53   to  56.    Trin.  21. 
Car.  2.  in  C.  B.  The  King  v.  Bilhopof  W'orceller,  Jer\is  and  Hunckley. 

II.  Quare  Impedit  f)rthc  Church  of  Burton  Duller,  in  the  Countvor^*^  C.^'-iugh. 
Warwick.  The  iVIanor  ol'  B.  D.  was  divided^  and  the  Defendant  had  2  a'!h -i'-'- 
Parts  of  it,  andthe  Plaintiff  the  %d;  and  the  Plaintiff  fet  Jorth,   That  the  v'aup'han'^ 
Ri^ht  of  prefenting  every  yl  Turn  was  appendant  to  his  yi  Part,  and  that  it  f'.iy.<.,''lc 
biJoK^i'd  tv  the  Defendant  to  prefent  twice,  by  reafon  of   his  two  Parts  ■■,  And  ''■■^•'"^elcir, 
lb  Jets  forth,  that  the  Defendant  had  prelented  twice,  andfo  it  belonged  J'l-'^  "J'"'^ 
to  him  to  prcfenr  Now  ;  The  Defendant  fays,  that  the  whole  Advowfon  (,->'iureimpe- 
iiid  belong  Jo  him.  Sans  ceo,  that  one  Turn  was  appendant  to  the  Plaintiff  'j"  "it-,  tlie  D:- 
ihird  Part  i    The    Plaintilf  demurred   generally.     It  was  among  other  fy'""'"'^' "^-'y 
Things   oljebted.  That  the  Defendant  ought  to  have  traverfcd  the  Prefnt-  ^ylfr^^^fi' 
mcnt,  and  nctthc  ylppendancy;  For  tho'in  l()mc  Cafes  it  may  be  done,  yet  p„.'ft.ntjtiQn 
that  is  when  the  Appendancy  is  material,  and  v.'iien  the  i5elendant  mu:t  ;ill^-ged  in 
let  forth  a  Title,  and  cited  10  H.7.  27.  20  E.  4.  13.  21  iv  4.  r,  2.  Butto'^j'-.^^';''"- 
this  it  was  anfwered  tor  the  Delendant,  that  the  'l'ra\crfe  is  well  take.n  ;  ^'A "' ^,''".'"' 
iindthat  if  theAd\owfon  be  not  appendant  the  Plaintilf  hath  no  Tide,  lor  o'fKaCt'wUl 
he  hath  alleged  the  laft  Prefentation  in  us  ;  And  if  hehad  gained  a  Title  by  allow  irim  ib 
ibrmer  Prelcntations,  yet  when  we  prelented  again,  v.e  aie  remittel, '" '^"' ^T 
and  cited  1  Inll.  363.  Nat.  Brev.  35.  and  he  dilferenced  this  Cafe,  Irom  that  !',"■'  ^'■'J^"!^ 
in  I  And.  269.  becaufe  there  v\-as  a  Ipecial  Demurrer,  and   lo  might  take  i^hiioutal-*^ 
Advantage  ot' Matter  of  Form,  and  there  the  Delendant  made  a  Title  to  Iq^ipgaPie- 
an  Advowfon  in  Grofs,  and  then  the  Frcfentment  makes  the  Title;  But  ^^"tation  in 
Avhere  it  is  appendant,  the  Appendancy  makes   the  Title,  and  theretbre  '"'^'^'f.  his 
mult  be  traverled  ;  Andic  hath  frequently  been  f).  Freem.Rep.  34.  pi  43.  ^ho'e  fVom"'' 
Trin.  1672. -SCUftanU.CEUiplC  cites  D.  260.  i  Cro.  61.  Hob.  32i.  10.  Co.  whom  he 
Chancellor  of  Oxtbrd's  Cafe.     But  no  Judgment  appears  to  be  given.         claims  the 

Advowfon; 
Cut  the  I)cfendant  mull  not  travcrfc  (tliat  i.s  deny)  rlie  Pfefcntati'.jn  ::ncged,  when  there  ws';  a  PrclL--- 
tation  ;  l''ov  then  the  IlTue  mull  bs  four.d  againll  him  ;  Theretbre  L-ord  W.  urder  iviioni  tlie  Phiiiiti  t 
claims,  havinj;  prelented,  belt  by  wli.:t  Kight  foever.  rlierc  w  a'!  no  travcrfir:^  hi.s  Picienration  ;  £ut 
whatever  Riglit  the  Lord  V^^  prelented  by,  tiie  PlaincilT  has"0  Ri^ht  to  prcle./r,  unle's  th^-  r.ord'v\  's 
Presentation,  was  by  the  Appende-ncy  to  the  ;d  P^'t  of  tl.e  Manor  ;  For  he  deriving  no  Title  to  the 
Advowfon  as  in  Grofs,  nor  any  other  V\'ay,  bnta?  belongiii;^  ro  thi-  -d  Par;  of  the  Manor,  which  h;-. 
derives  from  the  Ld  W.  therefore  nothing  istravcrfable  by  thi;  Dcft-ndanr  'hit  t!'t  Ap.>"nde''"-y,  whit'i  if 
touad  .ig;< jnil  tlie  Plaintiff  he  h;i:.:  nn  (^'olo'.i'.-  of  Tit'r. 

rRd.  -.'■) 


460 


Prefentation. 


fBd.  17)   Pleadings.  Profert  or  Moujlrajis  o{  Deeds  Scc. 

Necejjdry  hi  ^johat  Cajes. 

I,  TN  Quare  Imped  it,  if  the  Defendant  makes  a  'title  hy  Grant  by  Deed, 
\^  and  does  not  ihew  ic,  by  which  the  Plaintiff'  demurs  for  the  not 
Ihevring,  A\hich  is  adjudged  againft  the  Defendant,  and  that  he  ought  to 
have  Ihewn  the  Deed,  this  is  peremptory^  and  the  Del'endant  lliall  lole  the 
Prefentation.  Br.  Peremptory,  pi.  70.  cites  19  E.  3.andFitz.h.  Monltrans 

2.  In  Q^uare  Impedit  by  the  King  againji  the  Bipcp  and  Patron,  it  was 
{ti-ai\<;  See  d1  ''gi'^cd,  that  the  Bilhop  »a'f/  mt  to  Jhew  the  Letters  of  Prefentation.  Br. 
45  ciccsS.'c.  Quare  Impedit.  pi.  65.  cites  38  E.  3.  3.  8,  9. 

3.  h'zht  King  makes  Prefentation  to  the  E'lihop  ly  his  Letters  Patents, 
the  Patent  belongs  to  the  Ordinary.  But  if  he -makes  Collation,  it  belongs 
to  the  Incumbent,  and  he  ihail  fhew  it.  Br.  Monltrans.  pi.  70.  cites  9  E. 
4.  16. 

4.  In  Cafe  of  an  Jdvowfon,  if  the  Party  makes  Title  where  it  is  by  way 
of  Defence,  he  ihail  ihew  Title.  Per  Brian.  Br.  Monllrans,  pi.  60.  cites 
15.  E.  4.  16. 

So  ill  '^iiare  5-  In^uare  Impedit  the  Plaintiff  made  Title,  That  y.  S.  was  feifed  of 
Impe^  the  Manor  of  B.  to  which  the  Ad'vowfon  is  and  was  Appendant,  andgranted 
dit,  the  f/yg  „(^f  Prefentation  to  B.  and  the  laid  B.  granted  it  to  A.  which  A.  granted 
^'ad^T^tle  ^°  ^^^  Plaintiff;  the  PlaintilFmuft  Ihew  all  the  Deeds  of  the  Grants.  Per 
That  7:  6".'  Fineux  and  Vavifour,  Quod  fuit  Conceffuai,  Br.  Monllrans.  pi.  109.  cites 

ivas  fc'fcA  cf  9  H.  7-  l6- 
the.-itkioivfcih 

and  ."j-jj/fp.^  the  next  Prcfentati.m  to  one  A.  and  after  the  faid  Aihoiofun  became  to;*/,  and  A.  prc/ented  L. 
and  after  J.  S.  died,  and  the  Advowfon  defceiuied  to  71  S.  wh  cj/inted  the  next  Prefent.ition  to  B.  a!id  B.  died 
InteJ}nte,  and  the  Ordinixi-y  ferjue fired  and  granted  the  Advowfin  to  the  Plaintiff,  and  t'ne  Incurnbe.it  died, 
the  Plaintiff  prelented,  and  the  Defendant  difturbed  him,  and  per  Reade  Brian,  Davers,  and  Fineux, 
he  fhall  fliew  all  the  Deeds,  exxept  the  Deed  made  by  J.  S.For  that  does  r.ot  beloiit',  to  the  Plaintiff,  nor  does 
he  wake  his  'fttiebyit,  nor  does  he  claim  by  J  S.  But  Vavifour  contra;  For  by  thisPrefentmcnt  J.S  v/as 
out  of  PoflelTion,  and  therefore  he  ought  to  fhew  the  Deed  to  prove  that  it  was  not  granted  bat  for  one 
Turn  only.  Br.  Monlbanv.  pi.  1 11.  cites  9H.  7.  23. 

6.  In  Quare  Impedit  the  ?li\nx\S declared,  that  K.  his  Anceftor  -was 
feifed  in  Fee  of  the  Vicarage  of  B.  in  Grofs  &c.  and  fo  fetfed  granted  the 
next  Avoidance  to  E.  who  granted  it  over  to  F.  and  that  the  Church  be- 
coming void  by  the  Death  of  the  Incumbent,  the  fiid  F.  prefenced  J.  N. 
who  was  admitted  &c.  that  afterwards  A.  by  Deed  granted  the  faid  Ad- 
\owfon  to  I'rufiees  and  their  Heirs,  to  the  life  of  A.  for  Life,  then  of  B. 
his  Son  and  Heir,  and  the  Heirs  Male  of  his  Body ;  and  for  Want  of  fuch 
IlTue,  to  the  Ufe  of  the  Heirs  Male  ot  the  Body  of  B.  And  that  during 
the  Time  of  the  troubles  in  1659.  the  Church  voided,  and  that  one  IV.  R. 
hy  Ufurpation  prefentcd  f.  S,  who  was  put  into  Pofjeffion  by  the  Perfons  then 
tn  Authority,  and  was  afterwards  by  the  1 2  Car.  2.  confirmed  in  the  fiiid 
Church  y^r  his  Life  ;  that  the  Church  became  void,  and  that  it  belonged  to 
the  Plaintiff  as  Heir  in  tail  of  B.  te  prefent.  The  Defendants  demurr'd3 
becaufe  the  Plaintiff  had  not  pleaded  the  faid  Grant  by  A.  to  the  Truf- 
tees,  with  a  Profert ;  for  that  here  the  Deed  is  necelFary  Ex  Inllitutione 
Legis,  to  make  it  a  good  Grant,  becaufe  without  the  Deed  the  Advow- 
fon  will  not  pafs.  But  it  was  refolved.  That  in  this  Cafe  the  Plaintifl' 
fhall  not  be  compell'd  to  produce  it.  ill.  Becaufe  it  ^o^j  not  belong  to 
him  who  is  only  Cejfy  que  t't'Jf',  but  it  belongs  to  The  Grantees,  zdly, 
Becaufe  he  has  no  Remedy  in  Law  to  get  Pofjcf/ion  of  it.  3dly.  He  is 
in  merely  bv  Operation  of  Law,  and  not  in  the  Per.  CarcH.  315.  Trm.  6 
W.  &  M.  keyneil  v.  Long. 

(B.  d.  18^ 


Prefcntation.  46 1 


(B.  d.  18)     Iffae.    VpoH 'what  to  ho,  takefit  nfd  of  what  See(B.d,iy) 
Things  the  Jiay  nivfi  'niqmre,  ^''  ^' 

I.  TN  a  Qiiare  Impcdit,  belldcs  the  Point  in  Iflue,  the  Jury  ought  Ex 
\^  Officio  to  inquire,      i  Dc  Plemtiidmc  hicckjix.     2dly.  ILiexQijiis 
prcefattatiove.   sdly.  St  tctnptis  fimeftre  prt£teriit.  4thly,  DcVahre  Ecckjia 
per  Annum,     jenk.  206.  pi.  36. 

2.  In  Qiuire  Impedit  by  the  ^ing^  who  made  title  by  Set/in  of  the  Tem- 
poralties  oj  the  Eijtop  of  R.  and  that  R.  late  Bif/jop  of  B.  prefinted  to  the 
Hofpital  of  C.  R.  his  Clerk,  who  was  received  and  injlittttcd,  and  'voided  by 
Permutation  made  between  R.  and  a  Prebendary;  and  the  Defendant  y^j/c/ 
that  the  Hofpital  rs  not  Pcrmiitable.  And  the  Court  flxid  they  would  not 
try  the  Caufe  otthe  Voidance,  but  whether  it  i-oided  while  the  T'empor.-Ities 
were  in  the  Hands  of  the  King,  or  not  ;  quod  nota.  Br.  Quare  Impedit, 
pi.  69    cites  21  E.  3.  6.  7. 

3.  In  Quare  Impedit  by  the  King  againfl  the  Bipop  of  S.  of  the  Prebend  J"  Q'^^''^ 
of  H.  ht  pleaded,  that  after  the  Voidance,  the  King  prefented  E.  «;.^o  a;rfj  ,  P^..'"^^  ^ 
received  and  inftalkd^  and   the  other  that  he  was  not  received  and  [injf ailed,  ii,cumhnt 
and  the  others  e  contra.  Br.  Qj^iare Impedit.  pi.  68.  cites  21  E.  3.  50.  &  ^o  fieweiiCoii^- 

him  l>y  the 
Bifiop,  iy  which  he  was  iniiuBed  and  hifftilleit,  and  afrer  the  Kinir  confirmed  to  the  f>:c;;mhe>it  for  Life,    ludjT. 
ment  ;  And  the  A/«^  faid  that  he  luas  not  inducied  nor  injlalled  at  the  T'inie  of  the  Confirmation.,  and  afrer  the 
I/ne  was  t.ikcn  upon  the  Induction  only,  and  not  upon  the  Jndi<8io>i,  and  InfiallaikTi.    Br.  Quare  Impedit.  pi. 
50  cites  II  H.  4.  7. 

4.  In  Quare  Impedit  the  Defendant  pleaded,  that  the  Church  was  full 
ly  6  Months  before  the  Writ  pttrcbas'd  oi  his  ovvn  Prefentment,  Judgment- 
of  the  Writ ;  and  there  the  Ilfuc  was  taken  if  it  was  void  ox  not,  and  not 
if  it  was  full  or  noti  quod  mirum.  Er.  Qu.ire  Impedit,  pi.  21.  cites 
40  E.  3.  20. 

5.  In  Quare  Impedit  the  Defendant  faid,  That  he  is  in  of  the  Prefent- 
ment of  the  fame  Plaint:ff,  and  he  f aid  that  he  did  not  prefent,  Prifl  ^a-nd  the 
others  e  contra.     Br.  Quare  Impedit,  pi.  25.  cites  42  E.  3.  8. 

6.  In  Quare  Impedit  the  Defendant  faid,  that  there  is  No  fuch  Church  in  So,  thw  Kul 
the  fame  County:,  and  held  a  good  Ple.i,  by   Reafon  of  the  Vifne.     Br. '''*'' f '''',.^'^- 

^   -'       r  J  ■  I  ■  u  ^  in  "le  ''■'me 

Qiiare  Impedit,  pi.  33.  cites  45  E.  3.  6.  Co^,,^^  ^^^ 


lun  ri-it- 


cipe  quod  reddat  of  the  Manor  of  D.  to  ^^.y  thar  there  is    No  fuch  Ma'-or  intl^e  fune  County  ;  and  afte 
iffue  was  taken  i'l  there  is  aChtirch  known  by  fuch  Name  in  tlic  lame  County  or  not.     Ibid. 

7.  Quare  Impedit  by  the  King,  and  made  'Title  ly  ^Tenure  of  him  as 
Appendant  to  the  Manor  ofD.  The  Defendant  faid  .hat  Not  appendant.  Prill  ^ 
and  the  King  faid  that  he  and  his  Anccflors  T'tme  out  of  Alind,  have  pre- 
fented  to  it  as  appendant,  Prift  &c.  and  was  not  iufler'd  to  have  fuch  Illbe, 

but  to  rely  upon  the  Appendancy,  viz..  Appendant  or  Not  Appendant 
&:c.  quod  nota.      Br.  Quare  Impedit,  pl.  38.  cites  46  E.  3.   30. 

8.  Quare  Iinpedit  was  Prtcfentare  ad  Ecclefiam  de  B.  The  Defendant 
faid  that  it  was  only  the  Chapel  of  B.  and  Ttnie  out  of  Mind  had  been,  and  is 
within  the  Parip  of  C.  and  becaufe  theW  rit  did  not  fay  Ad  Capellam,  lie 
prayed  Judgment  of  the  Writ ;  and  the  Court  being  of  Opinion  that  ihe 
Writ  fliould  abate,  the  Plaintiff  faid  that  the  (Church  is  Parochial,  and 
the  other  laid  that  it  is  a  Chapel  and  Not  Parochial.  But  the  Court  laid 
they  would  be  advifed  if  this  be  an  IlFue.  Br.  Quare  Impedit,  pl.  77. 
cites  8H.  6.  37. 

9.  Where  a  Man  prefents,  and  his  7'itle  is  found  upon  a  Jure  Patrpna- 
tus,  and  he  fues  to  have  his  Clerk  admitted,  and  after  another  prefents,  there, 
if  the  Bi/hcf  might  have  admitted  the  Clerk  nf  him  who  had  the  I'crditf,  and 

6  A  did 


/^62  Frefentation. 


rt'zW  »ot,  but  dcferr'd  till  the  Lapfe  fel!^  and  then  prefcuted  his  own  Clerk  ;  Jn 
this  Ciife  he  is  Dilturbcr  againlt  both  the  Prelcntois;  and  Ifl'iic  llnU  hi: 
txkcn  IV  hd  her  he  whopnjlntcd^  and  had  his  Title  found,  find  to  have  hts 
Clerk  admitted  or  tiot,  and  whether  the  fecond  prcfented  to  htvi  fo  haftily  that 
he  cull  Id  not  admit  the  Clerk  of  the  fir  (I  by  due  Proccfs  before  the  Prefentation 
of  the  fecond  or  not ;  and  fo  the  Church  not  litigious.  Br.  Quure  Impedit,  pi. 
80.  cites  21  H.  6.  44. 
Br.  Replica-  10.  In  Qunre  Impedit  the  Plaintiff  counted  that  his  Ancejlor  was  feifed 
t ion,  pi  41.  of  the  Advowfon^  and  his  Clerk  in,  and  after  be  granted  the  Ad\'OW'lbn 
cites  S.C.  to  J.  S.  for  Life,  the  Church  voided,  J.  S.  prefented,  and  his  Clerk  in, 
and  J.  >S.  died,  and  alter  the  Church  voided^  by  which  the  Plaintiff  as 
Heir  of  the  ylficcflor  prefcnt-cd^  and  the  Del'endant  dillurb'd  him.  And  it 
was  held  that  he  ftjall  allege  the  one  Prefentation  and  the  other ;  for  the  Pre- 
fentation of  the  Tenant  tor  Life  does  not  make  Title  to  the  Plaintiff, 
nor  the  Prefentation  of  a  Guardian  nor  Termor,  and  the  Defendant  (Joall 
anfiver  the  firji  Prefentation,  and  have  Iff  lie  thereupon,  and  not  upon  Both. 
And  per  Littleton,  He  ought  to  anfwer  to  Both,  but  the  liliae  Ihal!  be 
upon  the  firft  only,  and  the  Plaintiff  ihall  not  reply  to  him  as  to  the  le- 
coiid  Prel'entment.      Br.  Q^uare  Impedit,  pi.  129.  cites  7  E.  4.  20. 

1 1.  Quare  Impedit  of  a  Cbantery  where  the  Conipofition  was,  that  if  the 
Patron  does  not  prefent  wtthin  oik  Adonth,  that  then  the  Ordinary  jhall  pre- 
fcnt ;  and  the  jury  was  compell'd  to  inquire  if  the  Month  was  palt,  and 
of  the  Value  of  the  Chantery,  and  if  it  was  \  oid  or  not.  Br.  Qj-iare  Im- 
pedit, pi.  131.  cites  13  £.4.  3. 


(B.  d.  19)     Judgment.     Tfljcn  and  How,  and  of  the 

Ef^tiy  thereof. 

But  if  he       I.  TN  ^i/are  Impedit,  if  the  Defendant  makes  Default  after  Jppearance, 
makes  De-  I    [he  Plaintiff  Ihall  recover  immediately,  and    his  "^Damages.     Br, 

faults//..      Procefs,  pi.  27.  cites  2  H.  4.    i. 

taken,  he  ,  .  .  t 

Ihall  have  Diftfcfs,     6  R.  2.  Which  feems  to  be  Dijirefs  Ad  Audiendum  Judicium.  Br.  Procefs,  pi.  27, 

Jnd  if  it  Iiad  2.  .^lare  Impedit  hy  the  King  againji  the  Incumbent  alone ^  and  at  the  Nili 
been  brought  pj-jys  j[  \^^^^  found  againJl  the  King.  It  was  objected  that  Judgment 
"pat'rfi  a'l'd  ^^o^^  "°^  ^^  ^^  givcui  for  the  Patron  is  not  named  in  the  ly'rit ;  and  yen 
Inciwihvt,  Judgment  was  given  that  the  Defendant  Eat  fine  Die,  without  entering  any 
and  found  Caufe  :  So  that  by  Ibme,  the  judgment  Ihall  be  intended  to  be  for  the 
a^ainftthe  ^ot  naming  the  Patron,  and  fo  the  King  at  another  Time  at  no  Preju- 
T  'd^'  nt^  *^'^^  '  quaere  inde  j  for  it  feems  that  it  pall  have  Relation  to  the  Matter 
Jliodd  be  pleaded.  And  it  was  prayed  that  the  Caufe  of  the  Judgment  be  enter'd. 
Eat  jhe  die.  But  per  Thirn,  It  Ihall  not  be  i  for  it  appears  in  the  Records  lor  if  a 
Per  Mark-  jvian  takes  Exception  to  a  Count  or  to  a  Prefentment,  or  IndiStment,  by 
Tudemfit  ^"''hich  it  abates.  Judgment  Ihall  be  viz,.  Pro  eo  quod  it  is  infufficient  in  Lnv, 
pi.  14.  cite's-  thereforeNihil  capiat  izn<\  the  Caufe  Ihall  not  be  entered^  becaufe  it  appears 
H.  4.*  2. — I-  in  the  Record  i  quod  Mark,  concellit.  And  fo  it  ieems  th.it  the  W  ords 
*Itfliould  of  the  Judgment  are  all  one  to  the  Writ,  to  the  Count  and  to  the  Bars 
^e  5.  b.  pi.  ^^j.  j.|^jg  ^j^^jj  ^^  expounded  by  the  Matter  which  is  pleaded,  when  it 
goes  to  the  VVrit  or  Count,  and  when  in  Bar.  And  Hull  and  Hank 
agreed  that  this  Judgment  ihall  have  Relation  to  the  Plea.  Br.  Judg- 
ment, pi.  14.  cites  3  H.  4.  2. 
Uthe.  Sheriff  3.  In  Quarc  Impedit  the  Sheriff  return'd  Nihil  at  the  Summons,  and 
retimu  Nihil  Attachment  at  the  Dillrels.  And  per  Dauby,  Cott,  Nevs'con,  Palton 
Sunimons  and  Godred,  t\\t  Plaintiff  fhall  recover  by  the  Equity  of  the  Statute;  but 
Pone  &  Di-  Martin  and  Strange  contra.  Br.  Quare  Impedit,  pi.  152.   cites  1 1  H.  6.  3. 

ftrins;.is 

in  ^inre  L/:iiedit,  yet  the  Plaintiff  fliall  recover.    Per  Aflnon.    Br.  Judgmsnr,  pi,  6.  cites  z-  H.  6.  5. 

4.  la 


Prefejitation. 


463 


4.  In  u  Quare  Inipedic  againfi anArckbifkop^  Btfiop  mid  others,  the  Jrch-  S.  C.  Roll 
b/Jhop  and  Bijhop  plead  that  they  claim  uothing  but  the  one  as  Metrupoli-  ^i^'f;.l'^J;, 


lan,  and  the  other  asOrdniarj^  the  other  Defendants  plead  other  Pleas,  the  ,g.  „„8_ 
PJaintitr  has  Judgment  agahift  the  Ai'chlnjhop  and  Bijkop  to  have  a  Writ  to  s. P. Heldac- 


Adjornatur 
iac 


found  lor  the  Plaintiff,  he  had  Judgment  alFirmed  in  Error.     In  this  was^tfirm'd 
Cafe  thefaidOimJJton  ivasnot  erroneous  ■-  for  it  was  alter  Judgment  3  and  ii'Tiin.u.f^ic. 
it  be  Error,  it  is  Error  in  Executione  Judicii  ;  and  in  this  ijale  no  \\  rit  'J- R  <^ ''•"TSe 
of  Execution  was  lued  out  againft  them.     jenk.  323.  pi.  36.  pRdfU^i-^. 

s.c. 

5.  Quare  Impcdit  by  H.  againft  B.  and  the  Bilhop  and  the  Incumbent  j 
and  as  to  the  Bilhop,  whole  Flea  was  allowed,  Judgment  v/as  given  thac 
the  Plaintili  take  nothing  by  his  Writ,  and  all  the  other  Defendants  con- 
jejydthe  Acficn  ;  and  the  Jury,  which  was  ready  to  havepals'd  upon  the 
IHue,  were  put  to  inquire  of  the  Value  of  the  Church  piT  Ann.  which 
founci  20  1.  and  thereibre  Judgment  o^ double  Damages  (that  is  to  liiy)  of 
40  1.  was  given  for  the  Plaintilf  againji  the  other  Defendant  and  the  hi~ 
ctimbent,  and  the  Judgment  entered  as  well  againfl  the  Incumbent  as  againji 
the  ether  j  ior  now  it  was  full  by  Lapfe.  Br.  Quare  Impedit,  pi.  12.  cites 
33H.  6.  12&32.    34  H.  6.  II.  38.  and  35  H.  6.    18. 

6  Where  a  Man  has  a  ^uare  Imped/ 1  againji  one,  and  the  Defendant 
has  a  Darrein  Prefentment  againji  the  Plaint {ff,  and  recovers  in  the  Dar- 
rein Prelentment,  and  the  Plaint ijf  is  Nonfnit  in  the  Ghiare  hnpedit  i  the 
Delcndant  iL-ill  have  two  Judgments  againlt  the  Plaintifl  to  base  Writ  to 
the  Bilhop  in  both  Aftions.     K  N.  B.  39.  (J;  ) 

7.  In  a  Qiiare  Impedit  the  Bijhttp  pleaded.  That  he  examined  the  Pre-  And.  1S9.  ^ 
fcntee,  and  found  him  to  ht  Schifmaticns  inveteratus,  of  '-jshich  be ga-je  ^■--'^^^'^^y- 
the  Plaintiff  Notice,  who  did  not  prefent  within  6  Months  die.  and  upon  jjj,"Jj|'^£  y)jj 

Demurrer  the  Court  gave  Judgment,  that  the  Plaintiff  recover  agamjr  the  mam-s 

Bijicp  his  Prefentation  to  the  Church,  and  a  W  rit  to  the  Metropolitan  3  Le.  19S. 
6cc.  becaufe  the  Bilhop  is  Party,  P-t  idem  Kpifcopus  in  Mifericordui  iY^-  ^''^'^'n' 
aiiciwards  a  U  rit  0/  Enqniry  of  the  Value  oi  the  Church  was  "^'^'-'^'W'' i  ^^  to  the  Da- 

whereupon  the  Value  and  other  Points  of  the  Writ  were  found  and  re-  mages. 

turn'd  j  and  thereupon  Judgment  was  entered  again ^  viz.  That  the  Plain-  Goldsb.  ^';. 
tifflliculd  ha\e  a  Writ  to  the  Archbilhop  ut  fupni,  and  that  he  reco\er  P'  ^°  ^-^ 
Damages  againlt  the  Biftiop.  FjPrad.  Pfifcrpus  in  A/iferuordia  ;  and  this,^"^^  j-,3_ 

was  alfign'd  tor  Error,  becaufe  the  Billiop  was  twice  amerced,  which  he  mage. 

ought  not  to  be  bv  Law.     But  it  was  anlwered.  That  the  lajl  Judgment  Jenk.  ijS. 
was  but  a  Recital  ofthefirjl,  and  fo  to  give  a  full  Judgment  of  all,  with  ^'"^^ ^' . ^'^^* 
the  Damages,  and  not  a  new  Judgment;  lor  he  can  no  more  have  two  g  p  **" 
Writs  to  tne  Metropolitan  than  he  can  be  twice  amerc'd  ;  but  it  it  was 
erroneous,  yet  the  firll;  judgment  is  good  and  perleft  in   it  feltj  and 

ihall  not  be  impeached  by  any  Error  in  the  fecond,  becaule  the  fhji  was 
the  Judgment  which  was  at  Common  Law  in  a  Quare  Impedit ;  tor  belbre 
the  Statute  of  W.  2.  the  Plaintilf  never  recovered  any  Damages  in  a 
Qtiarc  Impedit,  and  now  he  may  waive  the  Benefit  ot  that  Statute,  and 
tal;e  the  Judgment  at  Common  Law,  if  he  will.  Quod  fuit  concelfuin 
per  tot.  Cur.  And  fo  the  firlt  Judgment  was  affirm'd.  5  Rep.  58.  b. 
Hill.  32  Eliz.  upon  a  Writ  of  Error  in  B.  R.  Specot's  Cale. 

8.  "where  the  King  has  Judgment  by  Default  in  a  C^^uire  Impedit,  he, 
as  well  as  a  Subject,  mull  lifSuggeJlion  on  the  Roll fet  forth  his  fpecial  Title. 
Per  Hole  Ch.  J.  2  Salk.  559.  pi.  2.  Trin.  5  \V.  &  M.  in  Cafe  of  The 
Kiny,  &c    Bilhop  of  London  and  Dr.  Lancaltcr. 

(B.  d.  20. 


464. 


Prefcntation. 


(B.  d.  2.0)     Judgment.      ff%it  recover  d,   and  auho  ihall 
have  Executlou,  and  the  EffeH  thereof! 

I.  "O  Y  Quare  Impedic  a  Man  pall  not  recover  the  Jdvcwfon  but  the  Pre- 
j3  fintnnnt  ^  but  if  he  has  Execution,  all  others  belides  the  Incum- 

beni,  are  thereby  out  oj  Pojjcjfton.     Br.  Quare  Impedit,  pi.  7.  cites  9  H. 

6.  56. 

2.  If  a  Man  recovers  in  Quare  Impedit,  and  dies,  his  Heir  fhall  not 

have  Execution,  and   thereiore   it  is  not  a   Kcal  Aclion.     Per  Rolf. 

Br.  Quare  Impedit,  pi.  7.  cites  9  H.  6.  56. 


(B.  d.  21)     Of  Damages  and   Ofis   SCc. 

maki'rf  'of  ^'  ^^  ^-  i-T7^'ACTS,  That /row  henceforth  in  Writs  of  Guia.  Imp.  and  , 
"hls^Act'the  <r/7/).  'j.S.'i,.  P  ^  Darrein  Pre fe fit tnent  Damages  pall  l^e  a-zvarded,  that  is  to 
Plaintitfin  Wit,  If  the  Tune  of  *  6  Months  pafs  by  the  Diflurbance  of  any,  f  fo  that  the 
Qua.  Imp.  re-  Btjbvp  do  Confer  to  the  Church,  and  the  liery  Patron  lofdh  his  Prcfentation  for 
covered  no  ^f^^^  Tinie^  Damages  Jball  be  awarded  for  tzvo  Tears  %  Value  of  the  Church. 
left  anv^Pro-  ■^"'^  'f  ^^'^  ^  jl'Ionths  be  not  pafs'd,  but  the  Prefcntment  be  deraignd  within 
fit,the  Patron  the  faid  'fiiiie,  then  Damages  jhall  be  awarded  to  the  Half  liar's  lvalue  of  the 
fhould  take,  Church.  And  if  the  Diflurber  be  not  able  to  render  Damages,  he  fhall  m  the 
fliould  fa-     j^yj^  Q^j-g  have  Imprifonrnent  of  two  Tears,  and  in  the  other  of  Half  a  Tear. 

mony,  which 

the  Common  Law  did  fo  deleft  ;  And  this  is  the  Caufe  that  the  King  in  a  Quare  Impedit  recoverethno'D.t- 
nmges,  hecaiije  he  could  recoier  tio>ie  Ly  the  Common  Laiv  ;  and  the  Kint^  is  not.  vjithin  the  L'urviev;  ot  this  Adt 
for  the  Caules  fhew'd  in  Bofwell'.s  Cafe.     2  Inft.  562.  — -  S.  P.  Co  Litt.  i".  b. 

The  King  pall  not  recover  Damages  in  ^tare  Inifedit  for  Lifpfe  nor  Dijiitcbancc.     Br.  Damages,  pi,  1 5. 

cites  54  H.  6.  5. ■  S.  P.  Br.  Prerogative,  pi.  iic.  cites  Fitih.  Quare  Impedit  54. S.  P.  For 

Damages  are  given  only  where  there  may  be  an  Lfurpatiov  by  VV.  2.  5.  And  there  can  be  no  Ufurpation  upon 
the  Kirg.     Jenk.  281   pi.  7. 

Tho"  the  King  declares  Ad  Damnum  &c.  yet  he  is  not  within  the  Staf.ite.  The  firft:  Part  of  the 
Claufe  for  Recovery  of  Damages  is,  Si  tempus  Semeftre  tr.infierit  &c.  Now  He  is  not  within  this  Part  of 
the  Claufe  for  Recovery  of  Damages  ;  for  by  his  Prerogative  he  cannot  lofe  his  Right  of  Prcfentation, 
the'  the  Bifliop  has  collated.  And  then  the  fecond  Claule  (viz.  Et  ft  tempa  Seme^re  nor.  tranjierit  &c.) 
is  only  dependant  on  the  firft  ;  and  lb,  as  he  is  not  within  the  ift,  he  cannot  be  within  the  2d.  6  Kcp. 
51.  Mich.  5  Jac.  BofweU's  Cafe. S.  P.  Le  149.  pi.  2o-.Trin.  56  Eli.-..  B.  K.  The  Queen  v.  Buck- 
beard.  Cro.  E.  162.  Bugbeard  v.  the  (^leen. 

Some  tliink  that  the  King  fhall  recover  Damages  in  a  Quare  Impedit ;  and  it  feems  to  tliem  to  be  weak 
Reafoning,  that  he  fhall  not  recover  fingle  D.images,becaulc  he  can't  recover  double;  JrgmMntiim  a  ma jori 
.id  minus  Negative  non  valet,  valet  e  converfo.  The  King  fhall  have  Benefit  of  an>  Statute  tho"  he  be 
not  named  in  it.  Colls  are  given  at  Common  Law  i'l  a  Quare  Impedit  in  the  Time  of  E.  1.  Fitih. 
<.)uarc  Impedit  161.  Damages  were  given  to  the  King  in  a  Qiare  Impedir,  and  thole  Judges  were  liv- 
ing when  th.e  faid  Statute  of  Weftmintter  z  was  made.  Jenk.  2S 1.  pi.  7.  cites  Brooke's  Cafes.  22  H.  S.  1 7. 
And  forafmuch  as  no  Damages  were  in  a  Quare  Impedit  at  the  Common  Law,  .and  this  Act  after  the 

Statute  of  Gloucefter  giveth  Damages  only,  the  Plaintiff  fhall  recover  no  Cofls.     2  Inft.  562. S.  P. 

Br  Cofts,  pi.  1.  cites  27  H.  6.  10.  For  where  Damages  are  given  by  Statute  afier  the  Statute  of  Glou- 
cefter in  certain  out  of  the  Courts  of  the  Common  Law,  a  Mati  fhall  recover  tiiat  which  is  limited  in 
the  Statute,  and  not  otherwifc  ;  As  in  Decies  tantum,  the  Plaintiff  fhall  recover  no  Cofts.  Co itra,  it  is 
faid  in  P.avifliment  of  Ward ;   and  therefore  he  ffiall  not  have  Cofts  in  Quie  Impidit.  .  Br.  Cofts,  pi.  i. 

cites  27  H.  6.  10.  ,-A  Common  Law  a  Man  fhould  recover  Cofts  in  Quare  Impedir,  but  contrary  .ifter 

the  Statute,  becaufc  the  Statute  gives  now  great  Damages  in  Quare  Impedit.  Per  Newton  ;  But  all  the 
Argument  there  was  for  Damages.     Br.  Cofts,  pi.  25.  cites  9  H.  6.   52. —  But  H.  22  H.  8.  Spilma-.i  J. 

agreed  with  Newton. —  S.  P.  Jenk  234,  pi.  56. S.  P.  Jenk  281,  pi,  7.  Ad  Ftnem  S.  P.  Br. 

Damages,  pl.iS2.  cites  9  H  6  ;o  But  Trin.   11  Ann.  It  was  held  Per  tor.  Cur.  That  where 

Yudgmeii  is  given  j'or  the  Defendant  upon  a  Demurrer  in  Qiarc  Impedit,  the  Defendant  fliall  have  his  C  ifts. 
Rep.  of  Pradt.  in  C.  B.  4  Anon.  [This  fcems  to  be  by  Rcalon  of  the  Stat.  S  &  9  VV.  5  cap.  1 1.  S.  2.] 
In  a  Quavc  Impedit  againft  a  Prior,  Patron,  and  Incumbent,  the  Prior  pleaded  in  Bar,  and  the  In- 
cumbent pleaded  the  fame  Plea,  whereupon  IlTues  are  joined,  the  Prior  dies,  and  the  Iflue  is  fjund  for 
the  fncumiert,  he  jh.ill  not  recczer  D.un.xges  i;  this  JH,  for  he  cannot  have  a  Writ  to  the  Bifliop  and   he 

continued  in  PolVeliion.     2  Inft.  562. —  S.  P.  i  iMod    54-.  in  the  Cafe  of  Pratt  v.  Rurleis •  S  P.  Br. 

Damages,  pi. 182.  citespH.fi.  50. Br.  Qure  Impedit,  pi. (5.  cites  S.C.  — —  But  Per  Nev/ton  in 

Qu.ire 


Prefentation. 


465 


Qiurc  Impcdu  againlt  i^atron  and  Incumbcnr,  if  the  I'.itroii  dies,  and  tlie  Plaintiff  is  iSoh/mfrJ,  tlie  Iiuiwi' 
herit  Jhiill  icuKer  Umwi'^ic^  by  the  Statute  of  \A'elhiiinrter  2.  For  the  Incumbent  may  (ik-ad.     Br.  (^uai-e 

Impcdit,  pi-  S;.  cites   22  H.  6.   2 i.  . ./>;,/  where  Patron  ami  hutimbert  pleaS  one  ai'd  the  jaiiie  t'iea, 

there  both  pall  recover  Damages  if  the  Incumbent  v:ai  tjiitii'ttcd  ;  for  otherwile  he  fhall  tiot  recover  Dama- 
ges; per  >se\vton.     Br.  (;>uare  Impcdit,  p!.  85.  cites  2;  H.  6.  25. So  where  an  Abbot  claims  to 

hold  in  Proprios  Ufus,  he  fliall  recover  Damages;  for  he  is  Patron  and  Incujiibent.  Br.  i.)uare  Impcdit, 
pi.  6.  cites  9  H.  6.  ;. 

♦  If  M/ifW  tie  Foundation  of  a  Chauntry  tleCowpcfition  is,  That  if  the  Patron  prefent  not  ii'ilJ  in  a  Month  the 
Ordinary  jhall  ci Hate  ;  In  a  Qiaare  Impedit  brou;;ht  for  this  Chauiitry,  if  tie  Month  be  fafi,  the  Plaintiff 
jVall  recover  Damages  for  2  J'ears  within  the  Equity  of  this  Statute  ;  for  that  the  Patron,  in  thi.s  Cafe, 
Jofeth  the  Preleiit.itioii,  altho"  the  VN'ords  of  the  Statute  be  Per  tempus  Semeltie,  and  this  is  Per  lemtn's 
Merfis  tar.tum.     2ln(t.;At,;62. 

j  Here  [Covjerat]  is  to  be  taken  for  Legitime  Conferat.     1  Inff.  i,67,. 

Albeit  the  hifliop  h:ith  not  collated,  yet  if  he  hath  Jus  Qnferendi,  the  Plaintiff  fhall,  if  he  will,  re- 
cover double  Dainages  within  the  Meaning  of  this  Art.     2  Inlf  ^65. 

But  albeit  the  6  Months  be  pall,  lb  as  the  Bifliop  hath  a  jult  Title  to  prefent  by  Lapfe,  yet  //  the 
C.iirch  remains  loui,  the  Plaintifr  at  his  I'cril  may  pray  aA^'rit  to  the  BilTiop  ;  but  then  he  jball  net  recover 
double  Damages,  Liit  for  Half  a  Tear  only  ;  becau'c,  in  that  V.-i<^e.,  he  fliatl  reto/cr  his  Prefentation  ;  So 
that  it  is  in  the  Plaintiti's  Election,  in  that  Cafe,  cither /j  hfe  his  Prefentaticn  and  have  double  Damaees,  or 

to  have  his  Prefentation  and  jinc^le  Dama!!;es.     2  Intl.  ;6;. If  he  takes  a  Ij'rif  to  the  Bijhop  at  his  Peril 

he  pall  not  have  Damages  after  2  Tears  to  the  Value  of  the  Church,  tho'  the  Bifocf  has  frefented  by  Lapje  ; 

for  he  takes  Notice  thereof  at  his  Peril.     Br.  Damages,  pi.  iSy   ci;es  1 1  H.  4.  80. ■  Br.  Quare  In-' 

pcdit,  pi.  5;   cites  S.C. 

Ihe  Plaintiff  in  a  (^uare  Impedit,  after  Jpiearr.nce,  ivas  norfiiited ;  whereupon  the  Court  avardcd  a 
Writ  to  tie  />;j;  c/)  for  the  Defendant,  and  a  Wnt  to  the  Sheritfto  e'^quirc  when  the  Church  became  void, 
the  yearly  Value  thereof,  and  whether  the  Church  was  full  &c.  The  Sheritr"  returned  the  Time  of  the 
Voidance,  the  yearly  Value,  and  that  the  Bijhop  had  collated  by  Lapfe;  whereby  it  appeared  'Teni'jus  Se- 
mefire  was  pafi  before  f'e  IVrit  could  be  ferved,  yet  feeing  tl-.e  fudgruent  was  given  ivithin  the  6  Months,  he 

could  recover  the  Damages  but  for  Half  a  Tear      2  Inft.  565.  ■ •  S.  P.  Br.  Damages,  pi.  151.  cites  24  E. 

5.25. Br.  Q;jare  impciit,  pi.  95.  cites  S.C.    Brooke  Hiys,  The  Resfon  ft-cms  t;  be,  inafrauch  as 

avhere  tie  Pijhop  makes  Collation  litlhin  tie  6  .Vonths,  Us  Clerk  Jhall  be  rer:oved,  and  therefore  only  Dama- 
ges of  Half  a  Year  ;  but  ■nhere  tlie  Bifhop  has  made  Collation  ajter  ths  6  Months,  and  the  Party  hasjiid%~' 
ment  ajter  tie  6  Months,  there  the  Clerk  iliali  not  be  removed,  and  therefore  he  who  recovers  Ihall  have 
Damages  cf  2  Years  ;  Note  the  Difterence.     Br.  C^uare  Impedit,  pi.  9^.  cites  24  E.  5.  2^ 

And  it  IS  to  be  oblerved.  That  albeit  the />'/;;;o/ </of6  ai/^rfp,  yet  U  lis  Incumbent  is  rcmczed  by  Jiidi- 
ment  within  the  6  Months,  or  after,  the  Plaintif  Jhall  reaver  the  Damages  but  ror  Half  a  Tear  ;  for  tiie 
Words  of  this  Branch  arc  £t  verus  Patronus  eaVice  Prxfentationem  fuam  amiitat ;  io  that  if  lie  lole 
not  his  Pre'entation,  the  Collation  of  the  Bifhop  is  not  material.     2  Inll.  36;. 

4:  This  fliall  be  accounted  according  to  the  very  true  I'alue,  as  the  fame  may  be  Lett.     2  Inft.   z,6z. 

2.  In^i^tre  Impedit^  ifU'rit  is  awarded  to  theBip?op^  who  will  fiot  receive  Bi"  Brief  al 
the  PrefeiiUe^  this  is  ;i  Contempt  to  the  King,  and  tiae  PlaintilF  Hiall  re-  ^^^'^^f^que,  pl._ 
cover  Damages  againil  him.  Per  Thorp.     Br.  Contempts,  pi.  5.  cites  38 '"' ''"'^^  '  ' 

E.  3.    12. 

3.  Quare  Impedit  agaiiifi  the  Bipcp  of  N.  and  another  G)tia;'e  Impedit 
agatriji  J.I.  o\  the  fame  Church.  The  Hipjop  conjefsd  the  Dift itrbance.^  and 
J.T.  traversed  tie  7'itle  of  the  Plaintijlf.,  and  lound  ior  the'PlaintiiF,  and 
the  Value  ol  the  Church  40  Marks,  and  that  the  Church  is  //.'//  of  the 
PrtfentJfiCiit  of  J.  1".  and  the  Bifhop  is  Ordinary,  and  the  6  Months  are 
pall.  The  Plaintift'pray'd  Writ  to  the  Bilhop,  and  Value  oi"  the  Church 
by  2  Years  ;  But  per  Thorp,  Tim  cannot  ha-je  the  Value  cf  2  liars  and 
Writ  the  B/ficf.  And  becaufe  the  <3rdinary  cannot  have  the  Lapie  where 
he  contelles  the  Dilturbance,  therefore  it  was  awarded.  That  tiie  Plain- 
tiff iliall  have  Writ  to  the  Bilhop,  and  Damages  of  Haifa  Year  &C. 
Quod  nota  bene.     Br.  Quare  Impedit,  pi,  103.  cites  39  E.  3.  15. 

4.  In  Quare   Impedit  they  were  at  Ilfue,  and  'twas   found ^    ^hat  Er.Quare 
tit   the  Time  when   the  fury  was  charged  the  Church  was  vuid^    and  at  Impedit,  pi. 
the  Ttvie  that  they  gcrce  theirVerdiii  it  was  full  of  the  Prefrntnent  of  the  ^7^  cues  S.C. 
Etfljop  by  Lapfe;  a:.d  the  Plaintiff  recovered  Damages  of  2  Years  byjudg-  PhiSrJ! 
ment.  Br.  Damages,  pi.  26.  cites  43  E.  3.  10.  ccver'dhis 

Prefint- 
vter.t  and  Damages   for   2  Years,    notwith Handing  the  Defendant  allcg'd,  That  the  PlaintilY  (-.7^  >•?- 

cover'd  Daviages  c}  Hal)  a  Tear  in  ancther  ^:are  In:pedit  againfl  J.  B  If  the  6  Months  tafs  pendimr 

the  IVrit,  fo  that  the  lirjlop  prefe?:ts  by  Lapfe,  now  the  Plaintiff  cannot  have  the  Prefentment,  and  vet  the 
Writ  fhall  not  abate,  but  he  Ihall  recover  all  in  Damages  ;  and  therefore,  to  prevent  this,  it  is  u'lual  to 

name  the  Ordinary  in  the  Quare  Impedit.     Br.  Qiiare  impedit,  pi.  147.  cites  9  E.  4.  ;o. S.  P.  Br. 

Brief,  pi.  220.  cites  9  £■  4.  5;.     Per  Choke. 

6  B  5.  In 


466 


Prefentation. 


5.  In  Qiiare  Impedit  the  Plaintiff  recover'd,  and  if  there  be  no  other 
Dilhirbance  buc  the  Prcfuntation  of  the  King,  ■-s:hu  has  tcvokH  tt,  and  there 
was  no  other  Dijhtrbance  by  the  lucumbent,  the  Plaintiff  iliali  not  have  Da- 
mages.    Br.  Damages,  pi.  171.  cites  44  E.  3.  35. 
But  theOpi-      6.  Qj.iare  Impedit  by  J.  agatnft  2.  One  made  ''Title  to  have  Tarn,  and  the 
tor°nd     "  "^^''^  ^^^''  '^^'^  '  '""^  'tii'asjouiul,  that  it  was  the  Turn  of  one  Defendant,  and 
Cand.  like-wife  agatnft  the  Plaintiff  and  agatnft  the  other Dejendatit ;  and  by  the  belt 

vas,  That  Opinion  iie  Ihail  have  a  Writ  to  the  Bifhop  againlt  both,  and  Damac^es- 
he  fliall  rot  agaitift  the  Plaintiff  and  the  other  Defendant.  But  Brooke  makes  a  Quafei 
the />/!/«//?  ^"^^  ^"^^^^  '^  "°  Original  between  the  2  Defendants,  Br.  Damages,  pi.  173! 
nnd  Dvjcd  ^"ites  45  E.  3.    14. 

ti>:t  are  e.zch  • 

Jiicr  t!g.u)ill  the  oiler,  and  each  may  recover  againft  the  other.  Contra  of  one  of  the  Defendants  a-^.tinft 
the  other,  and  therefore  fliall  have  judgment  againft  the  Plaintiff  only.  But  Finch  Contra  ;  and"  that 
tiie  one  Defendant  fliall  have  Attaint  againft  the  other.  And  Per  Kirton,  Where  two  Defendants  are  in 
(^iiare  Ln^^edit,  and  the  one  can  fliew  Title  to  bar  the  Plaintiff',  there  it  fhail  not  be  imiuir'd  if  the'other 
be  a  Difturber  or  not  And  in  Qiiare  Impedit  againft  tuo,  it  the  one  comes  and  pleads  to  Iffue,  the  In- 
quert  fliall  be  taken  between  the  Plaintiff  and  him, tho' the  other  does  not  come;  and  if  it  be  found  for 
the  Defendant  againft  the  Plaintiff,  it  ftiall  not  be  incuir'd  nor  Title  made  againft  tlie  Plaintiff;  but 
Finch  dcny'd  it,  and  laid  that  tiie  one  Inqueft  fhall  not  be  taken  againft  tiie  otiier.  And  ib  in  VS'ard'upon 
Priority  the  one  Inqueft  fliall  ftay  the  other  &c.     Br.  (^lare  Impedit,  pi.  3  5 .  cites  S.  C. 

Br.Quare  7.  In  Quare  Impedit  after  6  Months  ^ull,  'twas  awarded,  That  the 

^e^'d^sSC  Plaintiff  ihou Id  recover  Damages  lor  2  Years  as  well  againft  the  Incim- 
and  Piahititf'  ^ ''"^  ^^  againft  the  Defendant,  becaule  both  had  counterpleaded  the  Plaintiff's 
rccoverVithe  I'ttle  and  the  Diftuibance  i  and  yet  it  did  not  appear,  whether  the  Ordi- 
Preicntnient  nary  had  prefeated  by  Lapfe  or  not.     Br.  Damages,  pi.  185.  cites   <6 

8.  'Twas  admitted.  That  in  Scire  facias  in  Nature  cf  .^lare  Impedit  up. 
on  Comprfition  to  prefent  by  Turn  lefwcen  Parceners  the  Planuiii  ihail  recover 
the  Prelentment  and  Damages.     Br.  Damages,  pi.  36.  cites  50  E.  3.  22 
Br.  Quare  9,   In  Quare  Impedit  the  Plaintiff"  Hull  recover,  and  Ihall  have  a  U'ri'r ' 

^''"atesS  C  ^°  ^^^  Bifliop,  and  Damages  tiion  the  Default  of  the  Defendant  after  Ap- 
but  fays,       pcarance.     Qu^re,  it  it  had  been  after  a  Continuance.     Br.  Damages    pi 
That 'if 'lie       192.  cites  2  H.  4.  I.  '  ^  ' 

Jiad  m.idc 

Default  after  Continuance,  a  Diftringas  fliould  ilTue,  as  appears  M.  6.  R.  2. Br.  Qii.^rc  Imped't 

pi.  151.  cites  S,  C.  ■  ^  '      .     P    '  » 

10.  In  Quare  Impedit  the  Plaintiff^ made  Title  by  the  Heir  in  his  Ward 
the  Dejendant  made  Title  by  Coparcenary  to  prefent  by  Turn  ^  to  -which  the 
Plaintiff  faid,  Thatfavmg  to  him  his  'Courfe  at  another  Time  that  Ne  Dif- 
turba  pas i  Wherefore  Hull  awarded  lor  the  Defendant  a  W^rit  to  the  Bi- 
ihop,  and  aWrit  of  Enquiry  of  Damages  againlt  the  Plaintiff  ^  lor  it  does 
not  lie  in  the  Mouth  o_t  the  Plaintiff  to  plead  this  Plea.  Br.  Brief  de 
Enquire  (See.  pl.  12.  cites  5  H.  5.  10. 
.^n:^  where  n.  In  Quare  Impedit,  if  one  fies  Execution  of  the  mater  Damages  he 
•Sr'and'  ^^^^  ""'^^^  ^'"^'°"  °^"  ^^^  ^^^  ^''°''^-  Per  P"^"^-     -B^-  Pieadines,  pl  %i 

\uodCeIfet      cites  30  H.  6.    jT.  ..      f  •  J    • 

ExectJic,  yet 

he  ftall  make  Mention  of  this  alfb,  tho'  it  be  againft  him.     Ibid. 

12.  In  Quare  Impedit  the  Bif:>op  prafd  Damages.    And  Per  Aihton. 
Danby,  Newton  and  Porting,  he  ihall  recover  Damages  ^  But  by  others- 
he  Ihail  not  recover  Damages,  unlefs  he  can  have  V\  rit  to  the  Bifhop 
which  he  cannot  have.     Br.  Quare  Impedit,  pl.  83.  cites  22  H.  6    25 
So  if  I  prefent      ,  3 .  I  f  J  prefent,  and  my  Clerk,  is  induBed,  and  /.  N.  brings  '3iiare  hn- 
7Jd^'^d    P'^'^  ^S^'"^  "^^  ^'^^  ^^'^^  """^  "fi''  "  '^onfut/ed,  I  Ihall  have  Damages,  and 
and  Quare'    Y^^  cannot  have  Writ  to  the  Bilhop.     Br.  Quare  Impedit,  pl.  83.  cites  22 
Impedit        H.  6.  25.     Per  AHiton. 

I.S  brought 

againft  me  aid  my  Son,  and  after  Title  made  I  die,  and  the  PLvniiff  is  n^nfrnted,  my  Sctijhall  riwerDa. 

mmres   ■ 


Prefentation. 


467 


'apes,  and  cannot  have  Writ  to  the  Bifhop.     Ibid. ^wrf  Per  Danby,    U  tht  Defend-iu  i/:trtles 

htmfct}  in  a  Quare  Impcdit  to  hold  the  Church  /;;  proper  Ufe,  and  the  Plaintiff  is  nonfuifeii,  the   Ocf.-iidant 

flial!  recover  Damages,  and  cannot  have  Writ  to  the  Billiop.     Ibid. J'o  where  tiie  Defendant  in 

Quare  Impedit  claims  free  Clutpel  to  iiidiilt  his  Clerk  ■:i>/>/  .i«/  Pirfeiitation  to  tie  Bijhop,  and  the  Plaintiff  is  m>i- 
fuited,  the  Defendant  fhall  recover  Damage.';,  and  no  Writ  to  the  Bifliop.     Ibid. 

14.  A  Man   fliall  recover  Damages  in  Qiiarc  Impedit  zt'/wc  be  was -^s  where/ 
fiever  dtfturb'd.     Per  Newton,      Br.  Quare  Impedit,    pi.  8^.    cites  22  ■?'''■'''■■'' ^'^^ 

TT^„;;  ^-  t         J     i^         J  niyticrkis 

"•°-  ^5-  admirted   ' 

and  J.  N. 
admitted,  and  J.  N.  brings  ^are  Impedit  againft  mc,  and  is  iionfuited  after  IJfue,  I  Hiall  recover  Dama'^es. 
Ibid. 

15.  A  Man  may  recover  Damages  for  two  Years  in  Quare  Impedit,  Br  Qvurc 
andjf?  the  Church  is  not  full  hy  the  Bifhop^  lor  it  was  a  Chaiitery  by  Crc-  I^nfcd^t,  pi. 
ation^  and  ivithoiit  Cure  oj  Souls.     Br.  Damages,  pi.  164.  cites  13  E.  4.  3.   '''•"■"'■^ 

16.  In  Quare  Impedit,  if  tlie  Defendant  pleads,  that  Ne  diftnrba  pas,  f^""  Quare 
thePIaincirt'  Ihall  have  Writ  to  the  Bilhop  immediately,  and  Writ  ol^'y^'^Y^'-s" 

Enquiry  of  Damages,  and  Judgment  thereof  after,  per   tot.  Cur.  except  (^'1 s'p'. 

Brian.     Br.  Judgment,  pi.  122.  cites  13  £.  4.  7.  Br.  Brief, 

al  Evefciue, 
pi.  14.  cites  21  H  6.  45.  and   21  H  6.  2S,  29. 

17.  In  Quare  Impedit  againjf  three,  the    V\x\\\x\^ recovered  by  Default  S-  C.  cited 
agamjt  one,  and  Judgment  was,  that  he   ha\e  \Vrit  to  the  Biiliop,  and  ^\'o'  ^  '^pafe 
Damages  for  hair  a  Year,  and  CeiTet  Executio  till  it   be  try'd  againft  ^fQ,..,"„g"y^ 
the  other  Defendants  ;  for  otherwife  this  Execution  againft  the  one    a-Deany. '^ 
lone,  Ihall  abate  the  W^rit  againft  the  others  ;  lor  he  cannot  recover  the 
Prefentation  againft  the  others  when  he  has  the  Prefentation  by  the  firft 
Judgment  i  as  in  Trefpafs  againft  two,  and  it  is  tried  againft  the  one, 

and  he  takes  Execution  againft  him,  the  \V"rit  Ihall  abate  againft  the 
other.  Br.  Quare  Impedit,  pi.  137.  cites  20  £.  4.  i.  and  10  E  4. 
II.  13. 

18.  Where  a  Man  has  a  ^iiare  Impedit  aganifi  one,  and  the  Defendant 
has  a  Darrein  Prefentment  agatuji  the  Plaiiiliff',  and  recovers  in  the  J3ar- 
rein  Prefentment,  and  the  Plaintilf-' is  Nonfuited  in  the.G^i.'se  hnpedit,  the 
Defendant  fhall  ha\e  two  A\'rits  to  enquire  of  the  Damages,  but  he 
fhill  not  render  double  Damages  for  one  Difturbance.  F.  N.  B.  39.  (D) 

19.  Damages  for  half  a  Year  v\ere  adjudged,  where  it  appeared 
that  the  Summons  ivas  not  Dereigned  withtn  the  6  Alonths,  and  lield 
good.  D.  77  pi.  35.  Mich.  6  £.  6.  Plenflow  and  Scanby  v.  Bilhop  of  S.i- 
ruin  and  Keble. 

20.  In  Quare  Impedit  the  jury  found  the  Value  of  the  Church  only.  And  iuch  a 
The  OinilHon  of  the  other  three  Points  may  befupplied  bv  Writ  of  £u-  P'c^'e'i^-n:  is 

i.-i>  I-  \(  1  •  ,7  V.     r   1  in  the  bo:ik 

quay  ofDamages.  D.  i35.Marg.  pi.  12.  cites  10  Kep.  118.  tof.   119.        ^f  EnnieM 

fol.  1 10.  Er 
cjiiod  Interim  cejfet  Exeailio  de  Brevi  Epifcopo  habend',  and  at  length  the   Plaintiff  rclinquiflicd   his  Dama- 
ges, and   had  Judgment  and  Writ  to  the  Bifhop  ;  Qiiod  Nota.  D.  i  q  5  pi   12.   Mich.    5  &4  P.  &  M. 

Poyner  v.   Charleton   and  Charels. And  the  realon,  why  fuch  Omifiions  in   the  tii'ding   by  the 

Jury  in  a  Quare  Impedit  maybe  llipplied  by  a  VNrit  of  Intiuiry  of  Damages,  U,  becanfe  as  to   the  4 
Points  to  be  mquired,  no  Attaint  lies  of  them  ;  For  as  to  them  it  is  only  an  In  [ueft  of  Office.   10  Kcp 
1 1 5.  Mich.  I  o  Jac.  per  Cur.  in  Chcyney 's  Cale.  cites  1 1  H.  40.  So. 

21.  The  Patron  Defendant    died  pending  the  Qiiare  Impedit  for  a  Pre- 
fentment to  a  Prc^rart',  yet  the  Plaintilf  had    Judgment  to  recover  the 
Prefentment  and  Damages  to  10  1.  only,  and  to  remove  the  Incumbent 
and  a  Writ  to  the  Kiif.op  Ad  Petitioncm  Quercntis  dirigend'.  D.  194.  pi, 
33.  Mich.  2  &  3  Eliz..  Bilhop  Litchfield  and  Merrick's  Cafe. 

£2.  In  Quare  Impedit  agawji  the  Archhijhcp,  the   Btpr.p  ol"  Lincoln,  D  241  a  pi. 
andcne  G.   they  al!  made  Default  at  the  Diffrefs,  and  Judgment  was  given  f^;"^''','''-,? 
againft  them  for  the  Plaintilf  to  have  a  W^ri't  to  the  Billiop,  and  to  re-  .|!',',i';ifg  ^j^ 
co\{^r  Damages  againj}  all  oi' them,  becanfe  by  this   Default  all   of  th-MVi  "'i^ij-^-l^n^' 
are  Ibppofed  to  be  Difturb^rs  3  but   the   Plaintiff  was  compelUd  to  make  foui^.d  that 

q'  1 1,, 
1  mL^ 


.68  Prefentation. 


the  Cliiii-ch  q'ltle,  and  Procefs  illlied  to  inquire  whetlKT  the  Church  is  void,  ;tud  how 
wasvoulfor  j^,,^,,^  ^^^  ^^  ^^.^^  Valuc  &c.  Mo.  8 1,  pi.  214.  Hiil.  17  Eliz.  W'utfon  v. 
Ll:cnXl?iBilLop  of  Canterbury  &al. 

void   two 

Years  and  move,  and  thnt  the  Church  is  now  fall  of  G.  of  the  Colluion  of  the  faid  Archbidiop ;  and 
bv  the  Opinion  of  the  Court  Judtnnent  was  ^ivcn,  that  the  Plaintiff  recover  the  Prelentation,  and  have 
Writ  to  the  Bidiop  of  Lincoln  aforelaid,  and  Damage  to  the  Value  of  the  Church  to  half  a  Year  &c. 

and  that  all  the  Defendants  be  in  Mifcricordia.- ■ ^^Bendl.  149-   p'   207.  S.  C.  fays,   Th- Plaintiff 

had  Indf^ment  to  recover  his  Prclcntation  and  Damages  for  two  Years,  and  that  he  was  ofCounfcl  with 
the  Plaintiff. 

But  fee  Cro.  23.  Error  of  a  Jiidiimnt  in  Qiiare  Impedit,  the  Judgment  being  for  the 
C.  1-5  (rarl  pi;iii,tirt',  and  the  Value  ot  the  Church  tbund  to  be  80  1.  per  Annum,  a 
hro^n"*  ^Vrit  ot  Error  being  brought  ot'the  Judgment  Lxfore  the  Kxigi  fac.  and 
IBoCock*  after  the  Record  removed,  and  the  Judgment  being  affirmed,  and  ha v- 
whcrc  Da-  ing  depended  a  Year  and  more,  the  Court  awarded,  that  the  Defendant 
mages  were  [^  Error  Ihould  have  Damages  for  a  Tear^  during  which  Time  the  Writ 
mitij;ated  on  j-  Y.XXOX  was  dependins;  according  to  the  Value  of  the  Church  Ibund  bv 
Account  ot       ,      ,r       ,.,'-,  1  •    1       °     n      )  K.  J     1  1     J  1  •       ri     I 

the  Clerk's    the  Verdift,    which  was  80  1.  per  Annum,  and  they  awarded  him  80  1. 

having  had  hcfides  Cojls,  according  to  the  Prefident  in  6  Edw.  6.  D.  77.  Cro.  Car. 
Poflelhon.      1^5.  Mich.  4  Car.  pi.  24.  Anon. 

24.  If  upon  a  Writ  of  Error  brought  Judgment  he  affirmed-^  the  Defen- 
dant in  the   Writ  oi  Error  ihall  have    Damages  i    Per  W'hiclo.k   J. 
Godb.  439.  Trin.  5  Car.   Earl  of  Pembroke  v.  Bollock. 
S.CSkin.  25.  In   a  Quare  Impedit  there  was  a  Demurrer  and  an  HTuc.     The 

25.  Mich  ;-  'Plaintiff  had  a  Vcrditf,  and  the  Jury  who  try'd  the  lii'ue  tbund  the  Va- 
Car.  z.  C.  B.  ^^g  Qj.  jj^g  Church,  and  that  it  is  yet  vacant,  and  taxed  Damages  for 
Oucftioti'^  the  half  Year  i  and  the  Plaintiff  had  Judgment  likcxvife  upon  the  Dcmitr- 
uas,  IFthe  rer.  It  wasmo\ed,  xh^t  the  Church  being  yet  vacant^  and  that  the  Pa- 
Plaintiif  tron  might  have  the  F'ruit  of  his  Prefentation,  he  ought  not  to  recover 
ftiould  have  Damages  for  the  Value  of  the  half  Year  ;  And  the  Prothonotaries  laid, 
it  waVrulcd  ^^'^^  ^^  '^  '^'^^  conftant  Courie,  that  the  Plaintiif  tliail  not  recover  Dama- 
That  if  it  be  ges  for  the  half  Year  where  the  Church  remains  void  i  And  though  the 
a  Qiaare  Im-  Jury  tax  Damages,  yet  in  fuch  Cafes  they  enter  a  Remittitur  of  the 
pedit  by  Damages  where  the  Church  remains  void,  and  fo  they  would  have 
Common  ^^^^^  |^  ^.j^j^  ^.^^-^  without  troubling  the  Court,  if  the  Parties  had  ap- 
therc fliall     plied  themfehes  to  them.  3  Lev.  59.  Trin.  34.  Car.    2.  C.  B.  Holt  v. 

be  no  Colh  ;  Holland, 
but  other- 
wife  if  by  Statute;  And  if  the  Church  is  full  of  the  Defendant  by  Infticution,  then  it  is  a  Quare  Im- 
pedit within  the  Statute  ;  but  if  it  is  not,  then  it  is  at  Common  Law  ;  and  cites  Co.  Ent.  50S,  539. 

5  Nelf.  Abr.  55.  tit.  Quare  Impedit  (C)  pi.  6.  in  abridging  this  Cafe  of  Lev.  59.  fay.s  the  Court  vi  as 
of  that  Opinion,  viz.  that  the  Plaintiff  ought  not  to  have  Damages  for  the  V.due  of  half  a  Year.  [But 
I  do  not  obfcrve  any  Thing  in  the  Cafe  to  that  Purpofe  ;  and  I  prefume  the  Law  is  otherwife  ] 

26.  In  Quare  Impedit  to  prefent  to  the  Vicarage  of  B.  the  Plaintiff 
fet  forth,  that  E.  C.  was  feifed  of  the  Reftory  of  B.  to  which  the  faid 
Vicarage  belongs,  and  that  the  faid  E.  C.  prefented  one  S.  and  then  convey- 
ed the  Reftory  to  the  Plaintiff'  F.  and  others  'Trajlees,  and  their  Heirs,  to 
the  Ufe  of  the  faid  E.  C.  and  her  Heirs,  till  Marriage  had  between  Her 
and  C.  D.  and  after  to  the  Ufe  of  the  Plaintiff  s  for  500  Tears^  for  raiflng 
4000  /.  ^c.  that  the  Marriage  was  had,  and  fo  the  Plaint iffs  pofjcffed  &c. 
that  the  Vicarage  became  void  by  the  Death  of  S.  and  fo  it  belonged  to 
them  to  prefent.  The  Bithop  claimed  nothing  but  as  Ordinary.  H.  the 
Incumbent  pleaded,  that  King  James  I.  was  feifed  of  the  faid  Retlory 
in  Fee,  and  that  it  being  void  by  the  Death  of  L.  he  prefented  one 
Solbear,  and  fo  derived  a  Defcent  down  to  King  William  &c.  abfque 
hoc,  that  E.  C.  was  feifed  in  Fee;  there  w;is  Judgment  againlt  the  Bi- 
Ihop,  and  the  Plaintiffs  took  Ilfue  upon  the  Traverfe,  which  was  tried 
at  the  Alfifesat  Exon,  and  the  Plaintiffs  had  a  Verdiil  ;  and  the  Jury 
farther  found,  that  the  Vicarage  was  full  of  the  Defendant  H.  Ex  Prae- 

fenta- 


Prefentation. 


469 


fentatione  of  the  King,  and  that  it  was  afterwards  void  on  the  25th  of 
December,  1697,  by  the  Death  of  Sainthill  the  lall  Incumbent,  and  that 
20  May,  10  \V.  3.  the  Plaintiffs  brought  a  Qiiare  Impedit  againll  the 
Bifliop  and  the  Defendant,  and  that  the  Vicarage  was  of  the  yearly  Va- 
lue of  60  1.  Ultra  Reprizas,  and  thereupon  the  Plaintiffs  prayed  Judg- 
ment according  to  the  Statute,  and  a  \\  rit  to  the  Bifliop  to  remove  the 
Defendant  H.  and  to  admit  Idoneam  Perfonam  at  the  Prefentation  of  the 
Plaintif-fs,  and  Damages  to  the  Value  of  the  Vicarage  of  the  Church  lor 
half  a  Year,  and  had  Judgment  accordingly  i  and  a  Writ  of  Error  was 
brought,  and  the  Plaintitt  in  Error  was  nonfuited.  Lutw.  901.  Hill,  lo 
&  n  \V.  3.  Bifhop  of  Exeter  and  Pleskett  v.  Freake  &  al. 


(B.  d.  22)  Error.     And  Judgment  re ver fed.  .«^eeCB.d.i9} 

I.  A  Seifed  of  the  Manor  and  Advowfon  jippendant  had  Ifiie  B.  and  BrPve'en- 
X\»  died  feifed^  and  B.  entered  and  endoived  M.  his  Mother  of  the  ^d.  wtion,pl  38. 
Part  of  the  Manor ^  and  the  id.  Part  of  the  Advoivfon  to  frefent  by  J'lirn^  ^  ' 
and  took  S.  to  Wife^  and  deiuifcd  tivo  Parts  of  the  Manor ^  and  the  Re'verjion 
of  the  ^d.  Part  with  his  Part  of  the  Advowfon  in  Demefne  and  in  Reverjion^ 
and  retook  to  him  and  his  Fane  for  their  Ltves^  and  prefented  twice  to  the 
Advo\vlbn,  and  after  granted  fxo  Acres  of  the  Manor  -with  the  Adiiov:- 
fo»,  to  IF.  ivho  prefented^  and  then  W.  releafed  to  the  Heirs  of  B.  and  to  S. 
his  Feme,  a/l  his  Ri?ht.  B.  died.  M.  died.,  and  the  Church  bccanje  void. 
S.  to  whom  the  Eltate  was  made  tor  Lite,  ut  fupra,  prefented.^  and  T. 
the  Son  of  IF.  the  Difcontiniiee^  diftarbed,  and  he  brought  AJJife  of  Darrein 
Prefentment  againji  S.  and  recovered,  ^nd  S.  brought  Writ  of  £r/-or  ^  and 
becaufe  the  two  Parts  of  the  Advowfon  which  remained  Appendant  may 
lie  in  Difcontinuance  by  Demife  of  two  Acres  with  the  Advowfon,  yet 
the  3d.  Part  of  the  Advowfon  which  the  Tenant  in  Dower  had,  which 
remained  in  Reverfion  and  lies  in  Grant,  this  does  not  lie  in  Difcontinu- 
ance, and  therefore  the  Grant  of  B.  was  not  good  of  this  but  during 
his  Life,  and  therefore,  becaufe  the  Baron  had  two  Prefentments,  this  3d. 
Prefentment  belonged  to  M.  if  fhe  had  been  alive,  and  now  by  her  Deatii 
it  belongs  to  S.  to  whom  it  was  re-granted  for  Lifl",  and  thereibre  the 
Judgment  erroneous  which  was  given  againft  S.  For  by  the  Death  of  B. 
her  Baron,  his  Grant  was  void  ;  whererbre  it  was  awarded,  that  the  tirll 
Judgment  be  reveifed,  and  that  S.  have  a  Writ  to  the  Bifl'op^  and  that  the 
re- have  her  Damages  loft  bythejirfl  fttdgmcnt;  and  of  the  Damages  after  the 
firft  Judgment /^f  Co//)-/ roo/t  Ad'vifement ;  and  there  it  was  agreed,  that 
though  a  Man  be  nonfuited  in  Writ  of  Error,  he  may  ha\e  another  Writ 
of  E'rror.  Br.  Error,  pi.  121.  cites  23  Alf.  8. 

2.  In  Quare  Impedit,  the  Defcnd.'Vit  appeared  by  Attorney  ijvho  had  no 
Warrant.,  and  Writ  "was  awarded  to  the  Bifhop  for  the  Defendant,  becaufe  the 
Plaintiff  was  demanded  and  did  net  come  i  and  becaufe  it  was  perceived 
afterwards  that  the  Defendant's  Attorney  had  no  W^arrant,  tlie  fnd^- 
ment  and  Execution  were  repealed,  and  Writ  of  Repeal  awarded  to  the  Btjhopy 
and  the  Defendant's  Attorney  committed  to  Prifbn  till  they  fhould  con- 
lider  further  what  to  do  with  him.  Br.  Imprifonment,  pi.  16.  cites  38 
E.3.   8. 

3.  Error  ;  the  Provofl  ofC.  brought  Q^ia.  Imp.  againJl  J.  H.  and  count- 
ed, that  the  Advowfon  was  Appendant  to  his  Manor  of  D.  and  Jbewed  a 
Prefentation  in  himfelf,  by  which  his  Clerk  was  infiitutcd  and  indutied 
&c.  J.  H.  faid,  that  one  J.  was  Maficr  of  the  Hofpital  oj  G.  and  was 
fcifed  of  the  Advowfon  as  in  Grafs  in  Right  of  the  Houfe,  and  prefented  one 
P.  who  was  inflituted  &c.  and  the  Majler  died,  and  AI.  wa^  made  Maficr, 
which  M.  and  his  Confreres  prefented  the  faid  y.  f/.  now  Defendant  i  ancl 

6  C'  the 


47  o  Prcfentation. 


the  Phiifititf'  faid.,  that  thefaid  J.  Majler^  and  the  [aid  J.  B.  Defendant^ 
arc  o>ic  and  the  fame  Perfon^  and  not  diverle  ;  upon  which  rhev  demurred, 
and  the  Provolt  PlaintiH  had  Judgment  to  recover  in  C.  B.  And  the  De- 
fendant brought  Writ  oi'Krrur,  and  ajji^ned^  becaiife  he  brought  ^lare  Im- 
fedit  where  he  is  out  of  PvfJ'cffioii,  and  therefore  ought  to  ha^-je  H'rit  of  Right 
of  Advuivf'oii ;  and  he  faid  iurther,  that  no  Pa:ron  is  named  tn  the  Writ; 
and  alio,  that  by  the  Averment  that  the  [aid  ff.H.  and  J.  the  Mxjhr  are 
one  and  the  fame  Per  [on,  and  that  the  Majhr  and  Confreres  prcfinted  the 
Alafter^  he  ha^bythis  confeffed  no  Patron  to  be  named  &;c.  Br.  Error,  pi. 
83.  cites  14  H.  8.  2. 

4.  The  Plaintiffs  had  a  Verdict  in  a  Quare  Inipcdit  againft  the  Ordi- 
nary and  the  Incumbent,  and  a  Writ  awarded  to  the  Metropolitan,  and 
a  Fieri  Facias  to  the  Sheriff.     Writ  of  Error  was  brought  i  and  one  of 
the  Errors  aligned  was,  that  Damages  u-ere  given  for  Half  a  Tear,  when 
it  appears  that  the  Nonfummons  "-iSas  not  deraign'd  within  the  fix  Months; 
but  the  firll  Judgment   was  affirm'd.     1),  78.  b.  pi.  34.  Mich.  6  E.  6. 
Henllow  and  Stansby  v.  Biihop  of  Saium,  and  Kcble. 
The  Veriiicl      5.  A.  recovers  in  a  Quare  Impedit  againlt  the  Bidiop  and  Incumbent  by 
'"^'"1^"'*'^     Verdift,  and  has  Judgment  before  the  Judges  of  Afiifc,  and  Nili  Prius  by 
W^y  that     ^^^  Statute  o'iWeft.  2.  20.  A.  has  a  Writ  to  tlie  Metropolitan,  QuiuEpil- 
the//'fKm-     copus  ell  pars ,  the  Church  is  in  the  Diocefe  of  the  Bifnop  Deknd.tnt ;  the 
hnti  ivai  in    Bilhop  and  Incumbent  bring  a  Writ  of  Error  dirctfed  to  the  Ch.  J.  of  C.  B. 
by  the  Prcjcn- iQ  revcrfe  the  Judgment  given  there,  whereas  it  was  not  given  there; 
tmtteiioj    ■  j^    VVrit  was  good,  tor  there  is  no  other  Form,  and  the  Orij^inal  was 

rcxty  toile  returnable  in  C.  B.  and  the  Count,  Plea  and  illue,  and  \  enne  hicias  tor 
Writ ;  this  the  Trial,  are  there.  And  this  is  not  like  a  Judgment  in  an  Afjife,  and  a 
was  .idif^ncJ  Writ  of  Error  brought  upon  it ;  for  there  the  Original,  and  Procels  and 
SoifalToca-  "^'ert^ict,  Hre  all  belore  the  Juftices  of  Aliile.  And  in  lu.h  Cale  a  fpecial 
tui-;  for  this  ^Vrit  ot  Error  is  framed,  and  this  Judgment  in  Afiife  can  only  be  re- 
finding  is  on-  verled  in  the  King's  Bench  ;  and  fo  it  is  of  a  Judgment  given  by  Juftices 
lylixOffi-    of  Nifi  Prius.     lenk.  206.  pi.  36. 

cio,  and  the 

Incumbent  by  not  pleading  it,  has  waived  it.  If  fiich  Plea  or  Matter  had  been  pleaded,  it  would  not 
Jiave  abated  tiie  Writ,  but  ic  ci'oaW  hd'-ue  maAc  the  Writ  ahateahle,  and  fuch  Matter  is  not  aifignable  for 
Error.     Jcuk.  206.  pi.  56. 

Cro.  E.  65^  6.  In  a  ^I'.are  Impedit  by  the  ^leen  againji  the  Bipop  of  Gloucefter  &c. 
h'  n'  ^'  S  ^"^  '^"^  ^-  ^^^  Bijhop  pleaded  that  he  claimed  nothing  but  as  Ordinary ;  and 
filfhop^of  °  ^^^  .^ueen  recovered  ;  afterwards  the  Eipop  and  S.  joined  in  a  A\~tit  of  £r- 
Gloucefter  ror.  It  was  inlifted  that  they  ought  not  to  join  in  this  Writ,  becaufe  tiie 
and  Savacre'sBilliop  had  diiclaimed  the  Patronage  ;i7;.'ithe  Conclulion  ot  zhe Mat ivas, 
^'*.'"^'j  j"!  ^^'^  grave  damnum  Epifcopi,  which  cannot  be  ;  lor  tlie  Bilhop  cannot  be 
the^'^VV'rit  ^'grieved  by  the  Judgment,  when  he  neither  had  or  claimed  any  Thing  in 
•was  \^cll  the  Church.  Wray  faid  that  it  had  better  been  left  out,  but  that  the 
brought ;  for  Billiop  Ihall  join  for  Conformity  and  Ibr  Pn\  ity  of  Record ;  and  the  Plea 
^'■^y  ^-''^  of  the  Bilhop  is  not  fo  Itrong  as  a  Difclaimer  ;  for  in  Ditliaimer  the  Judg- 
LT'/'-r'*  ''  "^^""^  '^5  '^'^'^"^  ^^^  Plaintiff  take  nothing  by  the  VV^rit,  whereas  here  it  is 
Lofs,  for  by  Quod  querens  recuperet  Praefentationem  fuam  verfus  dittum  Epilcopum  ad 
this  Jndg-  Eccleliam  praedictam.  AndalterwardstheWrit  ofError  was  awarded  good, 
ment"  the       „  L^.  176.  pl.  228.  Trin.2o  Eliz.The  Queen  v.  The  Bilhop  of  Gloucefter. 

ff'ritp.rll  be  ^  '        '^  '  ^  .  ' 

to  the  Jrchbijhcp  for  Jcimijlon  and  Itifiittttioii,  and  fo  he  has  Lofs,  and  therefore  may  Join. Cro.  J.  94 

in  Cafe  of  Lancatter  and  Lowe,  was  cited  the  Cafe  of  3|onf5'  I),  ©iroil,  where  Jones  and  the  Arch- 
bifliopof  York  fued  a  Writ  of  Error  of  a  Judgment  againft  them,   and  Jones  only  affign'd  the  Errors, 

and  therefore  held  to  be  ill. -If  the  Bidiop  and  Defendant  join  in  bringing  a  Writ  of  Error,  the 

Bifhop,  unlcfs/«OT/;wHV.T;;ii/^i;frV,  muft  join  in  the  rt//;»n;X^  them.     Cro.  J.  92    Lancafter  v.  Lowe. 

If  a  Quare  Impedit  he  brought  againft  a  Bifhop  and  others,  and  Judgment  be  againft  then  all,  the 
nhiiUnts  niufl  all  join  in  a  Writ  of  Error,  unlcfs  where  the  Bifhop  claims  only  as  Ordinary.  5  MoJ. 
134.  inCafeof  Racket  V.  Heme. 

Noy^iJ.  S  C  .7.  The  Queen  had  Judgment  in  Quare  Impedit,  by  Reafoa  of  Lapfe; 
but  not  S.  P.  Erior  was  brought,  but  the  Incumbent  was  Jtmmon'd  and  fever' d ;  and  alter 


Prefentation.  ^7 1 


Judgment  was  rcvers'd  at  the  Suit  of  the  Heir  and  Executor,  (being  the 
iiime  Perfon)  and  as  Heir  and  Executor.  It  w  as  faid  that  the  Incumbent 
might  weJl  enter,  lor  by  the  Revcrliil  there  is  no  Record  of  the  Re- 
covery againlt  him.  Cro.  E.  324.  Pafch.  36  Eliz.  Pipe  &c.  v.  the  (^ucen. 

8.  In  Error  to  reverfe  a  Judgment  in  a  Qiiare  Inipcdit  it  was  aliig..'d. 
ift.  That  a  Stra/z^e;-  was  pojfifs'd for  }cars,  and  dcvifcd  it  to  the  Plaintiff'^ 
and  that  he  had  it  by  the  Afjhit  of  the  Kxaittor,  but  did  not  foy  Virtv.ie  Le- 
gationts  pYctd.  zdly.  He_/^t"r£/'.f  not  how  the  Church  became  void^  eitiier  by 
the  Death  or  Deprivation  of  the  Incumbent,  nor  for  what  Caufe  i  and  it 
might  be  fuch  a  Caufe  for  which  the  Queen  Jhould  have  the  Prcfcnration 
as  lor  Simony  &c.  gdly.  Becaufe  the  Value  of  the  Church  is  found  to 
be  40  I .  per  Annum,  And  the  [udgment  is,  J^uod  recuperet  Damnum^  'viz. 
Medietateni  diCti  Valoris  difia:  F.ccU/ix  per  DiiiiidiiuH  tinius  Anni^  qu£  fe 
attingttnt  ad  2.0 1,  which  is  not  according  to  the  Precedents.  P>ut  the 
Court  being  full,  the  Judgment  was  affirm'd.  Cro.  E.  67b.  Tnn.  41 
Eliz.  B.  R.   Billiop  ol  Glouceller  v.  Veale. 

9.  Judgment  was  gi\en  againll;  Dr.  Harris  in  a  Quare  Impedic  in  C.  B.  2  HulfT  -6. 
who  brought  a  Writ  of  Error  in  B.  R.  and  the  Error  afhgned  was,  for  ^.C  aud  58. 
that  Aullen  the  Defendant  i»  the  original  Aci ion  had  pleaded  in  Har^  that  ^-  ^■ 

one  Peaking  ivas  Inctiniiicnt,  and  that  the  Church  became  void  by  I.  is  Depri- 
z'jtion  (but  no  Tune  fhe'-jun  when  he  was  deprived)  and  that  .^hieen  Alary 
prejented  one  Wocd  L'fnrpando  on  the  rightful  Patron,  ivho  was  in  for  Jix 
Months  &c.  The  Plaintiti>f/)//f(V,  That  after  Wood  was  prefentcd  Dy  the 
Qiieen,  the  Earl  of  Pembroke,  who  had  purchaftdthe  Advozvfun  before,  brought 
a  ^uare  Impcdit  againil:  the  Ordinary  and  the  Incumbent  j  to  which  tne 
Ordinary  pleaded,  That  he  ciaim'd  nothing  but  as  Ordinary,  and  the  i>V- 
fendafit's  Attorney  pleaded  Afon  fum  Jnformatus,  by  which  he  rccu\er'd,  and 
the  Incumbent  Legnimo  undo  amotus  fuit,  and  it  doth  not  appear  whether 
this  Quare  Impedit  was  brought  within  6  Afonths  after  flood  was  pref'ented : 
It  was  infilled  that  this  Plea  fliould  be  taken  ftrongell  againlt  the 
Header,  and  therefore  the  Quare  Impedit  lliall  be  intended  to  be 
brought  wirhin  6  -Months  i  for  otherwile  the  Incumbent  could  not  be 
Legicimo  mcdo  amotus:  And  the  judges  being  of  this  Opinion,  the 
Judgment  was  affirmed,  i  Roll.  Rep.  210.  Trin.  13  Jac.  B.  R.  Harris 
V.  Aullen. 

13.  Judgment  was  in  Quare  Impedit,  and  the  fame  Term  a  Writ  of 
Error  was  delivered  to  the  lame  Court,  before  a  Writ  to  the  Eijhop  was 
awarded  to  admit  the  Clerk.  Per  tor.  Cur.  The  Writ  of  Error  ought 
to  have  been  allowed  \\  ithout  any  other  tjuperfedeas,  becauie  a  \Vric  oi 
Error  is  a  Superfedeas  in  itfelf  Godb.  439.  Trin.  5  Car.  Earl  of  Pem- 
broke V.  Bollock. 

I  r.  In  Error  brought  upon  a  Judgment  in  Quare  Impedit  gi\en  in  Ire- 
land, it  was  inlilled  that  the  Plaintiff  mtiji  fet  forth  both  iicijin  and  Va- 
cancy, but  that  here  he  had  fail'd  in  both.  For  ift.  As  to  the  Seilinthe 
Declaration  llands  thus,  Seifitus  fait  S  in  advocatione  Eccle/ix  ;  here  the 
(£r)  couples  nothing,  and  Seilitus  refers  to  nothing,  sdly.  Vacancy  ; 
the  Record  is  thus,  Ecclejia  prxdici.  vaca-vit  per  ce[fionem  &:c.  Now  this 
is  pleading  a  Confcquence  without  fetting  forth  the  Acf,  of  which  this  is  a 
Confequence  i  it  ought  to  have  been  pleaded  thus,  that  the  Parl'on  was 
made  a  Bill.op,  or  advanced  to  a  Living  incompatible  &c.  as  the  Faft 
was,  Per  quod  Ecclelia  pra:d.  vacavit.  Third  Exception  taken  to  the 
Record  \vas,  That  the  Conclulion  was,  Fj  hocparatus  ejl  -vcrificare,  in- 
ftead  oi  Inde  prcdiicit  fecJam,  and  fo  no  Suit  belore  the  Court,  and  that 
this  is  not  meet  Matter  of  Form.  But  it  was  anfwered  that  the  Word 
(AY)  may  be  left  out  or  iranfpoled  thus,  Et  de  Feodo  &  de  Jure.  And  as 
to  the  Vacancy  and  the  Paratus  Verihcare,  Advantage  might  poliibly^ 
have  been  taken  of  them  by  Demurrer,  which  Advantage  is  loll  by  tak- 
ing Ilfue.  Per  Cur.  The  Objection  ol  the  Seilin  is  the  Itrongeft,  fir  it  is 
hionfenfe  at  prelent,  and  every  Thing  may  be  cured  by  Lca\  ing  out  and 

putting 


472 


Prcfcntation. 


putting  in.  I'olfibly  in  Tranfcribing  the  Record  (He^  was  omitted  ;  and 
ii'the  Fiift  be  fo,  it  may  be  fet  right  by  a  Certiorari ;  Dc  S  in  advoca- 
tione  would  be  well.  As  to  the  Oniifrion  ol'  the  Inde  producit  fe6lam, 
this  would  have  excufcd  the  Defendant  in  not  anl'wering  ;  but  in  Fact 
he  has  anfwered  it.  And  as  to  the  Obje£lion  about  pleading  the  Vacan- 
cy, it  ought  to  have  been  pleaded  as  above  objetted  that  it  ought  to  be, 
but  the  Vacancy  is  admitted  by  pleading  a  Prefcntiiieiit  under  it.  Adjorna- 
tur.  10  Mod.  308  &c.  Paich.  i  Geo.  B.  K.  The  King  v.  the  JBilhop 
of  Meath. 


f" ?q6^'the (B-  ^-  ^3)  '^(^'t''^  ficJiU  in  Qiiare  Iinpedit,   and  Pkadhig^ 


Note  in  the 
Middle  and 
the  Sedtions 
following. 


F  N.B.  47 
(I.)  the 
Note  in  the 
Marg.  cites 
21  H.  7.  ;. 


Ibid,  in  the 
new  Notes 
(a)  fays  fee 
12E.  3.   9. 
15  H,  8.  14. 
22  E.4  9  27 
H.S.  u. 


therein. 


I.  TN  Quare  Imped  it  ly  the  King  againji  the  Patron  he  rccoz-ered^  and 
after  confirmed  the  hjlate  of  the  Inciunbent  0/  the  Dcjendant^  and  then 
the  King  had  Scire  facias  upon  this  Judgment  agaviji  the  Patron  •■,  He  can't 
plead  this  Confirmation  made  to  tne  Incumbent,  tor  the  Incumbent  had 
nothing  in  the  Patronage.     Br.  Barre,  pi.  96.  cites  q  E.  3. 

2  VVhere  the  King  feifes  the  7'emporalties  of  a  Bilhop  by  Jndgjneiit;  and 
a  Prebend  annex'd  voids^  the  King  Jhall  have  Scire  tacias  of  the  Prelenta- 
tion,  and  Ihall  have  Execution  ;  quod  nota.  Br.  Quare  Impedit,  pi.  71. 
cites  21  E.  3.  29. 

3.  A  Man  had  Proximam  Praefentationeni  by  Grant ;  the  Church  void- 
ed ;  a  Stranger  prefented^  and  the  Grantee  brought  ^uare  Impedit,  and  re- 
covered^ and  had  Writ  to  the  Bipop,  who  returned  that  the  Prefcntee  of  the 
Dijliirber  rcjign'd,  and  another  is  in  ;  and  upon  this  the  Plaintilt  had 
Scire  facias  to  have  Execution,  notwithltanding  that  it  be  a  fecond  Avoid- 
ance now,  becat'fe  he  recovered  the  Jirfl  Avoidance,  and  the  Covin  of  the 
Deiendant  Ihall  not  prejudice  the  Plaintiif.  Br.  Prefentation,  pi.  33. 
cites  21  H.  7.  8. 

4.  Where  Partition  is  made  bet-jcixt  Coparceners,  ly  Licence  of  the  King, 
of  an  Advowfon  /;/  a  Court  of  Record,  as  in  the  Common  Pleas,  and  after- 
wards the  Coparcener  "Ji'ho  hath  the  next  J'urn  dieth,  her  Htir  within  Age, 
and  in  Ward  to  the  King,  and  the  Church  voids,  the  King  (hall  have  a 
Scire  tacias  againit  the  other  Coparcener  &c.  upon  that  Partition  i  and 
y£t  he  was  a  Stranger  to  the  Partition.     F.  N.  B.  34.  (H. ) 

5.  If  2  Coparceners  make  Partition  to  prefent  by  7'urns,  although  that  one 
of  the  Coparceners  afterwards  ufurps  upon  the  other  Coparcener,  and  prefents 
in  her  Turn,  that  Prefentment  thai!  not  put  her  out  of  Polfeliion,  but  ihe 
ihall  have  her  Turn  when  it  fails  again,  and  Ihall  have  a  Quare  Impedic 
or  a  Scire  facias  upon  the  Compolition,  if  it  be  upon  Record,  if  the  be 
diilurbcd  to  prefent  &c.     F.  N.  B.  34.  (I.) 


B. 


FN,. 

(I)  in  the 
new  Notes 
theie(d) 
cites  14  E. 
2.  Quare 


6.  Where  a  Man  doth  recover  in  a  Writ  of  Right  of  Advowfon,  he  fliaU 
prefent  at  the  next  Avoidance,  and  thall  have  a  Quare  Impedit,  without 
alleging  any  Prefentment  to  himfelf  or  his  Anceltors,  but  fhall  declare 
upon  the  Record,  ox  may  have  a  Scire  facias  upon  the  Recovery,  andy^ 
may  his  Heir  have  a  Scire  facias  upon  that  Recovery,  againll  the  Heir  of 
the  other  Party,  at  the  next  Avoidance  alter  the  Recovery,  but  not  after, 
Impedit  1 7 1 .  as  it  feemeth.     F.  N.  B.  36.  (A. ) 

172.    That  a 

Man  may  have  a  Scire  facias  on  the  Judgment  for  the  Difturbance,  but  that  on  the  Judgment  in  a 
Writ  of  Rij'Jir,  he  had  Seifin  delivered  by  the  Sheriff ;  and  yet  iecaiife  he  camiet  have  Seiiin  0}  the  Church 
'Without  a  Pre/e)!triie)it,  when  the  Church  avoid.^  he  jh.tU  h/ive  a  Scire  jaiias  for  the  Prefentment.     1  5  E.  2. 

Quare  Impedit  1-2 F.  N.  B.  V)   (A)  in  the  new  Notes  there  (b)  cire.s  13  E.  5  .  Scire  ficias  uS. 

where  the  ConU7.ee  of  a  Fine  of  an  Advowlbn  brought  a  Scire  facia.s  at  the  ne.^t  Avoidaace  agaiiiil  the 
Heir  of  thcConufor,  and  held  good  without  fliewing  any  Prefentment. 


7-  m 


Piefentation. 


+73 


7.  [  VoJ  it"a  Man  recover  in  ^tiare  h/peiiit,  he  fliull  have  a  Scire  facias  Ibid  in  the 
a^aiiiji  the  Patron  and  the  Incambentivho  viade  DefaitU^  il'he  wiJI  fue  Exe-  "cw  Notes 
cunon  of  this  Recovery.    F.  N.  B.  36.  (B.)  fluiiw'a 

Scire  facias  a^.iinfi  the  Heir  at  the  next  Avoidance.  59  E.  ;.  25.  But  the  Heir  pall  mt  ha-^e  a  Scire  fa- 
cias on  a  Recovery  in  a  Cjiiare  Impcdit.  9  H.  6.  57.  bccaulc  in  tlic  (^arc  Inipedi:  the  Prefcntmcnt  only 
is  recoverable,  and  not  the  Advowlbn. 

8.  \i  Coparceners  make  Partition  in  the  Chancery^  or  in  C.  B.  to  prefint  hy  Ibid,  in  th; 
'jturns,  and  alter  wards  'd.  Stranger  aftirps  in  their  fever  al  ^/urnsi  yet  after,  "^'^^J^"'^* 
ivhm  their  'Turns  come,  every  of  them  may  have  a  Scire  Jacias  upon  this  Par-  \-'^^  j-J^'', 
t:ticn  agiunji  the  Stranger^  when  his  Turn  cometh,  to  Ihew  \\  herclbre  he  the  contrary,' 
ihould  not  prefent,  notwithrtanding  the  Ufurpation  aibrefaid.    But  other-  %%  £.  3. 
ivife  it  fccmeth  it  is  //'  the  Partition  be  of  Record,  then  they  IhuU  be  put  Q^^i'c  Impe- 
to  their  Writ  of  Right  by  Reaion  of  the  Ufurpation    F.N.  B.  36.  (c)      i'^^if  fccms 

not  to  be 
Law  ;  for  there  it  was  brouj^ht  againft  an  Eftrans^cr,  and  held,  That  tho'  by  fuch  Ufurpation  he  put  the 
one  Coparcener  (whofe  Turn  it  was)  out  of  PoirL-Ifion,  yet'ic  did  not  put  the  other  our  of  roflelTion. 
-  E  5.  15.     22  E  4.  9. 

(C,  d)     JjJIfe  of  Darrein  Prefcjdmcnt.     jrbo  pall  have  ^^^-  '^ 
it  without  any  'Prejeritment  before. 

I.  Ti7  a  Tenant  bi)  g^CrHiCC  Of  Chivalry  prefents  and  dies,  f)!6  5)a'rm 

1  J©nrt!,  mivma:  uiljtcl)  UBarDfljip  tl)c  crijiirclj  Doins,  ti)c  Guar- 
dian in  Chivalry  iiuii)  uiell  UTatutaui  tfjis  WxM  Of  Darrciu  f^rcfcnt- 
nicnt  If  Ijc  be  Difturlicn,  tijo'  Ijc  ijimfeif  ncucr  prcfcntcn  before.  3^ 
e.  I.  89.    atinuttcQ,    Contra  50  e»  3-  i-i-   ]^cr  f)olt. 

2.  djC  fime  Law  oi  the  Grantee  of  the  Ward,  for  ijC  Uliip  Uintlltain 

ti)i£J  ilBrit.    32  €♦  1. 89.    aomittcn. 

3.  13  K.  I.  cap.  5.  Enacts,  TJiac  as  often  as  any,  having 'no  Right,  dvth  *  Tc;:^>:t  fir 
prefent  during  the  Time  that  Heirs  are  in  'Wavd, or  during  the  Ejhtes  of  Tc-  1/™  °i^- 
nants  in  Dower,  by  the  Courtefy,  or  othcrwije  for  Term  of  Life,   or  *  of  or  a  Year'"" 
Years,  or  t  m  Tail,  ^  at  the  next  Avoidance,  "-juhcn  the  Hiir  is  come  to  full  and  Grantee 
Jge,  or  when,  after  the  Death  of  the  Tenants  before  named,  the  Aivowfon  of  tie  next 
jhM  revert  unto  the  Heir,  being  of  full  Age,  he  Jhall  have  fuch  Action   \\  by  ■'^'"'■^^"''f' 


urview 


Writ  of  Jdvowfon  Pojfcffory,  **  as  the  lajl  Ancefior  of  fuch  an  Heir  poutd  the  Pu.  v.^v, 
have  had  the  laji  Avoidance  happening  in  his  Time,  being  of  full  Age  bcjore  and  Meaning; 
his  Death,  or  be/ore  the  Demife  was  rnadefor  Term  oj  Lite,  or  in  Fee  Tail  °^  ^'■''''  ^^'^' 
as  before  is  fud.  ^  Tenant  i;- 

-'  -^  Statute  Mer- 

ctant,  cr  Staple,  or  Elegit,   are  within  the  Purview  of  thi.s  Statute.     2  Inft.  7, 59. 

■\  ^cna?it  ill  'Tail  was  ot  a  Manor,  whcreunto  an  Advowlbn  was  appendant,  and  hejore  this  .Statnte  an 
Elh-anj;er  uiurped,  ard  then  the  Stat.  oJ  Denis  Gondii'  ard  thi.s  Act  w  as  made  Tenant  inTjil  dies,  and  the 
Jvlaror  de'ctnds  to  liis  liluc  ;  yet  the  Heir  i:i  Tail  liath  no  Remedy,  becaufe  the  Advowfon  was  fe- 
vered by  tlie  Ufurpation  ;  and  tl.is  .-!H  extendcth  tut  to  CJiivfath^ns  iefore  this  Acr.     2  lull.  ;  51). 

Viit  if  Tenant  in  Tail  futfer  an  Ufurpation  after  this  Act,  and  di.-tli,  his  Itfue  fliall  have  Remedy  by 
Quare  Impcdit  within  the  Purview  of  this  Statute.     2  Inll.  559. 

+  Note,  Albeit  tlic  Heir  liath  the  Advowfon  hy  Defceiit,  yet  if  he  fuffjreth  an  Ufurpation  he  haih  r.o 
Remedy  by  this  Branch  ;/;;/;/  a^Jer  le  unieth  of  fuitJge  ;  this  is  is  to  be  intended  tuheii  the  Heir  is7«  li'ard 
for  fo'tiiis  Act  putteth  theCaii;  ;  but  ij  the  Heirbec«J  cf  IVard.  he  may  have  his  (^.irc  Impedit  or  his 
Affile  of  I')arreiT  Prefentmcn:  during  his  Minority.     2  Inft  559. 

II  This  is  by  a  ^lare  Impcdit  or  Alfife  of   Darrein  Prefenlmeiit.     1  Inft.  3  59. 

*♦  Then  put  Caie,  That  one  purchafeth  an  Advov,  fon  in  Kee,  atid  dieth  hejore  any  PrcfenlatiM  made  hv 
him,  ard  this  descends  to  his  Heir  Within  Joe,  the  Ci.iirch  becomes  void  ;  if  the  Heir  be  in  V\'ard  the  Heir 
may  have  hisQuare  Impcdit  at  his  full  Age  ;  and  if  he  be  v.  ithin  Age,  and  out  of  Ward,  he  may  have 
hisQuare  Im-.icdit,  and  count  of  a  Prefentation  made  by  him  of  whom  the  Purchalc  was  made  •  bui  he 
can  have  ro  Writ  of  Right  of  Advowfon,  becaufe  neither  his  Anceliornor  he  never  prelented.  2  Inll.'>9. 

Note,  It  is  r(J//li;W  here  .^((j/fw /iiji;«/,  i«/ Qualem /^lio-f?,  as  the  Anccftor  fliouid  have  had  it  the 
Church  had  become  void  in  hisTime,  and  his  Title  to  prefent  had  accrued  unto  him;  for  there  the 
Eight,  or  at  leaft  the  Poflibility  of  Adtion  i:oth  dcfcend.     2  Inft.  -j^p. 

Uiie  feifedoi  an  Advowfon  in  Fee,  prefents  to  the  Church  being  void,  and  prants  the  fmic  to  J.  for 
Lite,  and  aticr  f^rants  the  Reterfoii  to  K.  and  his  Heirs  ;  .■/.  Tenant  for  Life  fiiffercth  an  i  fur  pa  I  ion  to  the 
Church,  the  Heir  of  K.  having  the  Right  of  this  Advowfon  by  Dellcnt,  fliall,  af:cr  the  Death  of  A. 
the  Church  becoming  void,  prelent,  and  yet  K.  could  not  have  had  a  Ouare  Impedit  ;  but  if  A  had  died 
before  the  Ufurpation,  then  niiglit  K.  have  had  a  (^uai-c  Imocdir,  and  therefore  his  Heir  (hall   have  :it 

0   U  the 


474-  Prefcntation. 

the  next  Avoidance  th:it  Remedy  which  by  the  PofTibility  he  nnglit  have  had  ;  And  herewith  agrceth 
the  Authority  of  the  Boole  of  2  £.  ;.  10,  II.  For  there  Tend  taketh  this  Exception,  but  doth  not  de- 
mur,    ilnft.  359,  360. See  (C.  c.  2) 

4.  A  Man  ihall  have  AlBfe  of  Darrein  Prefencment,  tho''  he  fior  his  An- 

ccjfors  did  pcfctit  to  the  lafi  Avoidance ;  As  ij  the  Tenant  [or  Life,  or  tor 

Tears,  or  in  Dou'er,  or  by  the  Cnrtefy,  fiiff'crs  anUftirpatioii  unto  a  Church 

&c.  and  dies,  he  in  the  Reiser /ion,  --jaho  is  Heir  unto  the  Ancellor  who  kit 

prefented,  Ihall  have  an  Aihle  of  Darrein  Prefentment,  if  he  be  dilturbed. 

F.N.  B.  31    (G) 

(G)  in  the''      ^-  ^"^  'f  ^  ^^^'"'  prefents,  and  then  *  grants  the  Advowfon  unto  another 

new  Notes    for  Life,  and  he  fiiffers  one  Ufurpation,  or  2  or  3  Ufiirpattous,  now  at  the 

there  (c)       next  Avoidance  he  in  the  Rcverlion  ihall  not  have  an  Allife  of  Darrein 

cites  2  E.  3.   Prefentment,  if  he  be  dilturbed  to  prefent  ;  And  that  appeareth  iy  the 

y^-^^^^\l^^^  Statute  of  Utflunnjhr  2..  cap.  $.  ThM  the  Remedy  oi  the 'iiiituie  is  given 

Grantee  of  a  ior  the  Heir  of  him  who  made  the  Demile,  who  is  in  Reverlion,  and  not 

Kevcifioii     jor  the  LeJJor  himfelf.  F.  N.  B.  31.  (G)  cites  18  K.  2.  pj.  20.  6  E.  3.  41. 

fliall  avoid 

this  for  a  Pnrprife  on  the  Tenant  for  Life  ;  In  a  Quare  Impedit  brought  by  Stanhope  a^ainft  the  Bifhop 
of  Lincoln,  this  was  denied  by  al!  but  one.  But  fee  the  contrary  held  by  Moyle  and  Prifot,  34  H.  6. 
26,27.     And  (o  is  35  H.  6.  12. 

6.  If  the  AJ/ifc  finds  that  Tenant  hy  the  Ciirtefy,   or  Tenant  in  Duwcr 

ivas  the  lafi  'who  prefented,  by  that  the  Heir  ihall  have  a  Writ  to  the  Bi- 

lliop,  and  yet  he  cannon  make  Title  by  that  Prelenrnient.     Contra,  in  a 

Quare  Impedit.    And  Seton  gives  the  Kealon,  becaule  he  cannot  convey 

by  them ;  But  if  the  Heir  do  allege  the  lalt  Pieientment  in  herfeltj  and 

the  AHile  be  to  her  by  Default,  and  tound  u:  Supra,  yet  the  Heir  Ihall 

recover.     Contra^  If  they  be  at  Illue  upon  that  Prelentment.     F.  N.  B. 

31.  (G)  The  Note  in  the  Margin. 

But  if  the  In-      7.  If  a  Man  itfiirps  upon  an  Infant,  and  prefents  which  Infint  hath  the 

i-a'-t  tuuh^fe  jdr^Qrjuj-Qji  ly  £)efcent ;  and  alierwards  the  hiaiinbent  dieth,  the  Infint  ihall 

and  prdent    P'<?^ent  i  and  if  he  be  dilturbed,  helliall  have  an  Alfife  of  Darrein  Pre- 

and  after-'   lentmtnt.     F.  N.  B.  31.  (^K)  [according  to  the  new  Edition,  but  in  the 

ward  the       old  Editions  it  is  (I)  S.  4.J 

Church  be- 
comes void,  and  a  Strans^cr  prefents  and  ufurps  upon  the  Infant,  and  then  the  Incumbent  dies,  the  In- 
fant prefents,  and  is  diflurbcd  by  a  Stranger,  he  fhj  11  not  have  a  Darrein  Prefentment,  but  fhall  be  pvit 
to  his  Writ  of  Kight.     F.  N.  B.  51,  (K)  [according  to  the  new  Edition,  but  in  the  old  Editions  it  is 
CI)S.4] 


(D.  d)     Who   Ihall  have  it  after  PrefentmCNt. 

I.  T  JT  a  Guardian  in  Chivalry  prefents,   miD  aftCt  t\)t  CfjUtCl)  DOiDiS, 

JL  IjE  fljall  l)a\3C  anaiTifeof  Datrcmpcetttuinent  if  Ijc  be  maucb'D. 
Jfit?.  Ba*  31-  %    Contra  50  €.  3-  h-    l^et  ipalt 

Watf  Comp.      2.  ^0  a  Lellee  ior  Years  fljaU  ijatie  tl}i|5  Will  It  IjC  \M  prefCllteQ 

Inc.  svo.  before.  Jrit?.  J15a.  31- 31»  5  ip.  ?•  16.  b.  per  Jfairfa^r,  Conaa  50 
cil'^s^'t"  <J£*3- 14-    pcripolt*   m\l   :jncertiCempori?s  118.  i3. 

SeeCH.d) 

pi.  3.  and  the  Notes  there. 

Watf  Comp.  3.  g)a  a  Tenant  at  Will,  after  Ije  Ijagi  once  preftnteti,  fljall  Ija^e  xW 
Inc.  Svo.     jj3,.{j^   contra  50  e*  3- 14-   Per  ipolt* 

This  i.s  the  4.  If  the  King's  Patentee  of  an  Advoiafon  prefents  fwice  to  the  flime  Ad- 
Cafe  of  the  vowlon,  and  his  Clerk  is  infiitiited  and  induffed,  tho'  the  Patent  is  void  in 
Rec-tory  of  ^^,.j.  ^^  ;-j^,jj  the  Advowfon  does  not  pafs  thereby,  yet  the  Paceacee  has 
Weft  Bod-  ^                                                                 I                     .  '   J                                   ^ 


Prefentation. 


475 


fo  giiin'd  the  Advowfon  by  Ufurpation  againll  all  Strangers,That  if  he  be  win  in  Wilt- 
dilluib'd  at  the  next  Avoidance,  he  mav  maintain  an  Aliife  of  Darrein  ^"'^    '|^- 
Prefentnient  againlt  a  Stranger  that  has  no  Title  to  it,     Wati;  Coiiip.  Inc.  ITncndU^-i 
8vo.  222.  cap.  13.  cites  Dyer  351.   iSEliz.  pi.  ijo.S.C. 


(E.  d)     Aflife  of  Darrein  Prefentinent.     [/«  ^.vkii:  Cafe 
it  lies.    EJlcUc  altered.  ] 

i.TTC  lUljO  Ulill  bntlC  tljlS  nSrtt  ought  to  have  the  lame  (Slfi\tC,  or  VV-.tf  Co.np. 

X~X  JPiircel  ot  the  lame  Eltate  which  he  had  at  tIjC  ClUlC  Of  the  liilt  1"^.  8^04^  2. 

Prclentment.  ^"'^  "•  '^"" 

2.  3If  a  ^mt  bCinO:  Tenant  Pur  auter  vie  Of  Hll  atHlOtDrQlt  prCfcntS,  VV-itfComp. 
ailB  after  his  Eltate  is  enlarged  lor  his  own  Lite;  jilUO  ilftCC  tljC  CtjUCCl)  J'"'-"  8V04-5. 

ijottigi  again,  ije  fljall  not  maintain  an  SKTijC  of  Darrein  |^rcrent.iient"v'-,"-£!'^* 
upon  tije  fain  prefentment,  Ueeauic  it  le  not  tljc  fame  etlate  \m  any  ^as  ^  c,<b 
l^nrcel of  tije Cffarc  upon uiijiclj  tlje  firft  |i3mcntment  luas,  uut  lofxTe.ant 
new  £itate.   £^ell*  Jnccrti  tempon0  i  is.  b»  h^'-'^  cm-i-fy 

Wihoprefented 
hi  the  Life  of  his  IVife,  who  was  feifcd  in  fee.     Keihv.  1 1 S.  b. See  pL.  1  5. 

3.  So  it  10  if  Leflee  for  Years  Uf  an  aC^OUlfOn  prCfCUt^,  anB  aftCt  WatfComp. 
his  Elhite  is  enlarged  lor  Life  or  in  Fee,  aUD  tljCIt  tijC  CIJUI'lU  \3Uii3y,  I"'--^^<'-4rv 

!)e  fl)an  notOa^c  Ctflife  of  Darrein  {^rcfcntaicnt,  UzcaXiZ  \)z  fjas  a  ncta  Tc-T? 
Cftate  b^  enlargement.  f.  n.  b.  ^  i.* 

(H)  i-itbe 
new  Nores  (b)  .iccordingly. 

4»  djc  fame  Law  if  LeiTec  at  AViii  prrfentd^  ant!  nftcr  Iji's  €[!ate  ^v«r.comp. 
i0  eiUargct!  for  life  or  liear^,  ann  tijis  isf  more  iitaiiu  ■,  Jroc  jje  ^"-"  ^^° 
coiiin  nor  yai3C  tlji^  i©rit  upon  tije  firit  eJitate.  dlsTc"' 

5,  Jif  Leilee  for  Lile  Of  an  SnUOWfOn  upon  Condition  to  have  Fee  vVatf.Comp. 

preient0,  anu  after  tiie  Fee  accrues,  nnti  tijcn  tije  Cijurcij  tjoros,  it  ^"'^-  ''^^°- 
teen<0  tijat  be  fliall  \mz  tW  ilBnt,  becaufe  parcel  of  x\)t  olD^^^,"f;"- 
<£rtate  continues,  aim  be  !)an  tbc  l^oiriiulit}.'  ot  accruer  at  tue  time 
of  tije  firft  i^refentmcnt 

6,  3f  Lclibe  lor  Years  Of  aU  atmOUlfOll  ptCfCUt^,  ailtl  aftCt  the  Term  l^^atCComp. 
incurs,  ailtl  \)Z  takes   a   ne^v  Leale   for    Years   Of  tijC    SiD'OOsUra:],  it  ^'^'^-  ^^o- 

feems  cleaiij)  tljat  be  fiiaU  not  Ijalictljis  il^rit,  UzMz  be  i3  m  of+^^^-^^i^i^p"' 
ctber  (icfratc  tban  tbat  upon  iuljicb  tbc  firff  l*>refciitmcnt  iu.10  maDe. "''" 

7-  If  tbe  Grantee  of  a  next  A\oidance  prelents,  ;\\\Xi  nftCi;   purchales  WatfComp. 

theAdvovvihn,  nno  aftct  tbc  Cbutd)  lioiosi,  be  fljail  not  ba^e  tbis  ^"c.  bvo. 
mx\t,  becaufe  tbts  10  merely  a  nciD  eifatc,  nnn  no  li)ara1  of  tbc  ef-  Vr'fr  "^ 
tat^  upon  'miii)  tbe  fira  j^reientaient  uias. 

8.  ®0  If  Leifce  for  Years,  or  Pur  auter   vie   prCfCnt^,  anti  aftCt  Watf  Comp. 
purcha;cs  the  Re.  eriion,   fintl  tljCll  the  Years  expire,  or  Ceih'  que  Vic  I'lc  Svo. 

dies,  nntiaftcnirart!0  tbe  Cijitrcb  uoiQ0,  Ije  fljall  not  banc  tijtjs  li^rit,--  «?  21 
bvCuUfe  be  iG  in  of  otbcr  e ftatc.  '"''  ^-  ^• 

9-  SofijrdfJtbe,  tljOUgb  tljC  church  voids  during  the  Years,  or  tJU^  vVatfComp. 

rinn;  tljc  Life  of  Ceitv  que  Vie;  if  or  tbc  firrt  eifatc  i0  crtinft  by  bi'j  ^"^^  s™- 
oiun  Tift,  an^itljcretbrcljc  fljall  not  balic  any  l^cncftt  of  tljc  firif  ei'^'^-^^^'i.'Pr^^- 
tate,  ^  ^""^^• 

10.    .^f  two  Jointenants   for  Years,   Life,  or  in   Fee  prcrCUt,  i:inn  WatfComp. 

tbenone  UiCp,  anH  after  tbe  Cljurcb  \30tt1s,  the  Sur\ivi)r  fij.iU  ba\5cf'>c-sm 
tbisUBnt;  iiecatifcijc  ijao  tljc  liiuic  etlate  wljiclj  ijc  Ijan  uuoii  tljc^^-^/ r"- 
firt!  prcfcntmciit.  "''"'  ^-  ^* 

it.jf 


47^ 


Prefentation. 


S^'Qi:""'^'  "•  ^^  Tenant  in  Fee  or  in  Tail  Of  flit  at)\30U)fOll  upon  Condiiion 
-5  cap  '^  toha\elorLileor   Ycnrs  prCfCntS,  auO  ilftCr  his    titate  decRai:s,  fje 

cuc;s.'c"  fl)iiU  ijaijc  ti)i0  i©nt  uitjcn  tljc  Cijurdj  ijoiDs  airam,  became  lie  has 
pnrccl  ot  rijc  om  eftatc.  ' 

Watf  Comp.       I..  So  If  Tenant  in  Tail  prcfClltS,  niHl  flftcr  becomes  Tenant  alter 

4;;  cap'.  ;z.  P^'fibii.ty,  r.nn  nftcr  tljc  (Lijurcl)  i)oio,5,  ijc  fl)aUl)a\jc  rijis  i©rit,  bc^ 
cites  s.c.     caufctljisisnEcnimintofttjc^mU 

WatfCoinp.       13.  jf  tIjC  Baron  leiled  in  Right  of  his  Feme  Of  ait  CiOliaturan  UrC= 

i",':^;°;  „  ft»tjj,  ana  after  has  niue,  and  Feme  dies,  aiiD  after  tlje  CUiirch 
dt«  js.  c.""  ^P'^5,  tijc  I3aran  fljall  not  Ijaije  rtjts  iDnt,  becatifeUe  id  m  of  orijcc 
— F.N.  B.  e;iiarc  tijan  tijat  upon  irijiclj  ijc  preicntco  before ;  for  tefore  Ijeijati  not 
;i.cg;  iu  nnp  ertate,  but  Uiass  onlp  feifcn  in  Hmljt  oftije  J^eme,  anti  nam  Ije  ig 
'•slxTslcre  ^^^^^ °f ^"  '^^''^f^  ^^^  ^'"ft- Dubitatuf. UelU  incerti temporis.  i is. b* 

,b)  circs  Kitchin  [but  it  fsems  it  fhould  be  Kelw.]  1  iS.  that  in  this  Cafe  the  Husband  Ihall  have  Affifc 
CSC.   [tSjt  the  (Jaie  Iccms  to  be  only  the  Arguments  on  either  Side.] 

'^F^y^^H^      ^*^"  ^^^  '^  ^^^  Baron  alter  IfTue  had,  had  prefented,  atltl after  tljC  f  eiUt 

^^^^•s}^  fics,  ano  aftcriuarrisi  tlje  Cijurclj  uoibs,  tlje  oaaron  fijall  ijaiie  tijis 

v\  atf  cop.-,p.  HSrit,  became  bcbao  an  *  inception  ot  an  Eitate  tor  Lite  bu  ti)eCur= 
Inc.  svo.     rcfu  at  tije  ftr(t  i3refentnicnt,  tlje  iuljicb  m  nom  compieated. " 

ciles  f-Te^^'  ^^'  ^^^  ^'^"^'■'  ^^  ^^'^*^*^  ^°'"  ^'^'-'5  '^'^'-"  Remainder  i'or  Life  to  the  Bi- 
des."' '        ^o"'  Of  an  atlbOlUfOn,  antJ  tljC  Baron  prcicnts,  anQ  after  tije  Feme  dies. 

It  feems  tijat  tlje  ^=?aron  fljall  not  babe  iBrit  luijen  tije  Cburctj  \)0iDS 
again ,  becaufe  before,  be  prefenteb  iii  tye  Einljt  of  tl)C  jfcnie  hy  rea- 
lan  otber  eftate  for  Life,  ana  nolo  be  i.s  feifea  ofanotljer  eitatc. 

16.  It  mc  Husliind  iUidlVije  preinit-to  an  .idvcivfon  in  the  Right  of 
the  Wife,  which  is  appendant  to  the  Manor  of  the  IVtfe's^  and  alter  thef/,7/- 
band  aliens  one  Aue^  Parcel  of  the  Manor,  ivith  the  Jdvo'-jjfun  in  Fee  to' a 
Stranger,  and  dies,  and  the  Stranger  prefents,  and  aliens  the  Jcre  to  an- 
other inFee,  favmg  the  Ad-co'-j:fon  to  himfelf,  and  then  the  Church  voids, 
the  Wiie  Ihall  prelent;  and  if  the  be  dilturbed,  fhe  Ihall  have  an  Alfife 
ot  Darrein  Prelentment  ;  becaufe  the  Ad\  o\\  fon  v.  as  levered  from  the 
Acre;  but  if  the  Advovsfon  were  appendant  to  the  Acre,  then  the  Wife 
ought  to  recover  the  Acre  betore  ihe  prefent  to  the  Advoufon.  F.  N.  B, 
3 1.  (K)  S.  2.  [according  to  the  new  Edition,  but  in  the  old  Editions  it 
is  (I)S.5.j 
yVatrComp.      17.  Wherever  a  Man  7uay  have  KMe  oi Darrein  Prefentment,  he  mav 


4;  I.  cap.  22 
S.  P.      " 


have  a    C^iare  Impedit,  but  not  e  contra.     Godolph.  Rep.  643.  cap.  44.  S. 
1.  cites  'I'erms  of  Law,   Verb.  Quare  Impedit. 


(O  d)  (F'  d)  li'ljat  fhall  hQ  gocd  Frefiutmetit  to  mawkiin  it, 

Watf.  Comp  I. T  p'  J.  S.  prefents  in  myXame, and  bv  mvAflcnt,  anH  aftcr  tbC  CbUtCl) 

.",";  ^3°-,,     1  bbiDS,  tbisida  fumcicnt  J-)refentment  tlirmeto  baucan  ar 
cites' s  c'   fifeofDarrem  }3)reO:ntment  againlt  J-e.  for  tdis  U)as  iup  {i^re^ 
fentnient.  Cr.  5  C  i.  b.  Hot.  25.  abmogeri, 

2.  ^\  here  the  the  King  or  the  Pope  prefe/its  to   my  Ad\o\vfon  without 
Title,  1  ihall  ha\  e  Alfife   of  Darrein  Prefentment.  Br.  Darrein    Prelent- 
ment, pi.  4.  cites  3  H.  -I.  7. 
Soif  z  Man        3-  -It  a  Man  prefents  unto  an  Ad-vowfon  unto  "^'hich  he  hath  Right,  and 
pre/ents  unto  afterwards  the  Incumbent  dies^  and  a  Stranger  ufiirps,    and  prefents  unto 
an  Advow  -    this  Ad\  ou  fon  in  the  "twie  of  IVar,  and  alter  that  Incumbent  dies  i  Now,  if 

;»r''i"!f  VC  f^e-j:ho  hath  Right  prefents  a/am.,  and  be  dillurbed,  he  Ihall  haA  e  an  Alfife 
tens ards  the     ,  -r,         •    n     r  i    i  •     r.     ,-  ;     •     r^-  -  it-        i 

Incumbent      oi  IJarrein  Frekntment,  and  this  Prelentment  made  in  Time  ot   \\  ar  by 

tiiei,  and  a-   the  Stranger,  Ihall  not  grieve  him.  F.  N.  B.  31.  (I) 

nother  Or- 

dinary 


Prefentation.  477 


dw.rrv  frt/ents  hi  Laffe  anothei-  Incun.bc-nt,  and  after  tliat  Tiicumhent  dies  ;    Now   the  Ri£;hr  Patron  flwll 
preVe'nt,  and  if  he  be  rlifturlied,  he  fliall  have  an  AfTilc  of  Darrein   Prefentmcnr,   notwithlfanding  the 

mean  P'rerentments.   F.  N.  B    i;i   (I) But  it  a  Mm  frefents  nmo  ?Ln  Mvaw'ion,  and  after  le.ipi 

tief-jme  for  Term  of  Tcji-/,  and  after  the  Church  is  void,  r.r:d  the  7en.ir.t  for  Years  prefer.ts  &c,  and  tlu-n 
tlie  hciwibent  di,'s,  and  the  Lepr  p  refei.ls,  and  is  dilhirbcd,  it  feenieth  that  he  fliall  not  have  an  Afliltof 
Darrein  Prefentment,  becaufe  the  tenant  ]cr  fears  did  prefent  in  his  own  Rigjt-  V.  N.  B.  31.  (Il 


(G.  d)   h  ivhn  Cafes  the  Pnfentmoit.     Of  one  pall  he     scc  ;e.  d) 

of  others. 

I*     A    JiJrcrCiltniCltt  by  the  Grandfather  id  fUfFlCtCllt  for  the  Son  tO  W«rComp. 

J\  niaintam  tDis  UBrit  uiitljoiit  fliip  l^rcfcntmcnt  by  ijinifclc,  J""-  ,?;^i;^, 
tijisi  bcmn;  ttjc  lad  prcfcntmcnn  Cc*  5>Cu  i\  Eot.  25.  s.  c.""' 

2.  3fiV2rcnautbi'€>crliiccof  €l)iXiaIv\'prclcnt5anD  Dies,  {)!SDdc 
inHBarQ,  minnixiuijiclji^arDnjiptDcClnircij^oirid,  tljc  Guardian  in 
chivdirv  map  U3iMl  nmmtam  tijiis  wm  ifi)cbcDifttirbcri,  tlja'  ijc  l)(m= 
relf  uebcr  prcVcntcD  before*  32  C.  u  S9.  annuttcn. 

3.  '^CijCl^imc  Law  of  the  Grantee  ot  the  Wardi  jfOC  IjC  UiaD  maltV 

tain  ti3i£j  n^rit*  32  €.  i.  89.  snmittcu. 

4.  Sn  Heir  UlijO  COUIC^  lU  by  Defcent  OjaH  maintain  tljiS  SfllfC  lipcn  WatrCompt 

a  J^rcfentmcnt  niabc  by  any  Anceitor«  'Bnrtoii*  fal.  242*  b»  ^'^^c.  svo. 

4^-*  cap.  22, 

cites  S.  C.  \^  the  Crtarduir.  prefents   iy.iheRi^ht   of  tie  Heir,    and  the  Incumbent  die;,    the  Heir 

fhill  pefcnt;  and  if  lie  be  difturbcd,  he  fnall    have   an  Alhfe   of  Darrein  Prclbntoicnr,  although  the 
Guardian  did  prefentthe  mean  and  the  hift  Prclenimcnt.  F.  N.  B.  (J) 


(H.d)  Allife  of  Darrein  Prefentment.      /H.^jt  Pa  fa/ pall  Sc=:(E.  d) 

have  it. 


TEi 


Enant  in  Fee  Of  an  aGtiotofon  luap  Ijabc  tW  '^tit  UlitfjOUt  ^^'^*';!^  '^""^F- 

_     Doubt.  "  Inc.bvo45,. 

2.  Tenant  in  Taiie  Of  an  aoboiufon  maiMjabc  t[)vs  itBtit  ass  iccU  ad  s'c"'"  ^"'"' 
Ccnant  in  if cc  tbcrcof,  antJ  is  not  ncccffanlp  put  to  W  Ouarc  3ini=  *  Br.  Taiie. 

pCmt.  *  4&  M.  4.  aO)UD!jCD»  ?'  :4-  cites 

Affife  of  Darrein  Prefentment  was  brout^ht  bv  the  Heir  in  Tail,  who  claimed  it  as  appendant  fi>  a  Manor. 
Chelre  fiiid,  he  claims  in  Tail,  therefore  he  ought  to  have  (>aarc  Impedit,  and  nor  tliis  Acliot?  ;  But 
per  Fi-ich  he  may  +  have  the  one  or  the  other,  tlicrefove  Anl'wer,  ( jiiod  nota  ;  And  yet  tlie  Heir  in 
Tail  fhall  not  have  Affife  of  MortdancefJor,  but  K<rmcdon,  as  appears  tit..  Forniedon  in  F.  N.B.  and 
elsewhere.  Br   Darrein  Prclentnient,  pi.  I .  citcs46  Ali  4...     .  . 

■\  Br.  Quare  Inipcdit.  pi.  14S.  cites  S.  C. 

V  LefTee  for  Years  ITjall  babe  tbiStlOn't,   ifbC  bild  ptCfCntCtl  bcfOtC,  ■'^'^e  (E  d) 

tbo'  be  bad  not  a  JTranl^tcnement ,  J7or  tbiet  SaiTifc  id  not  liuc  to  an  p'p^ ,,   , 
9mrc  of  i:5obel  DiflTcifnu  ifit?»  Si^A.iu3..  Contta  l^clU  inccrti  ^aii  non'T- 

CCmpOrid  Il8»b.  cover  the 

Advowi'o!! 

in  the  Darrein  Prefentment,  but  only  the  Prcfentation,  as  in  Quare  Impedit,  per  Fairfax  J.  But  .'^;/rt:rf  of 
the  Affile  for  Termor  ;  For  it  feems  that  ncne  fhall  have  Aflifc  /;v  the  Commo?i  Law,  but  Ic  •nlo  has  T'itle 
.'f  Fravktetiement ;  But  by  Statute  Tenant  by  Statute  Merchat:t  &  Elegit,  may  have  Affile.  Br.  D.iricin 
Prefentment,  pi.  z.  cites  5  H  7    16. 

4.  Guardian  in  Chivalry  fljaU  babC  t\)\^  UDtlt,  if  \-)t  IjHd  ptCfCHtetl 

before*  ifit?,ii5a.  3 u  J.  32  e.  i. S9. 

6  K  ?.  13  E 


78 


Prefentation. 


*l]lH>nthis  j._  1 2  £.  I.  cap.  5.  Enafts.  That  where  it  chanccth  that  ajicr  the  Death  of 
fj'^^'i^\^'^"  the  Jmejfcr  of  htm  that  p-efeiited  his  Clerk  unto  a  Churchy  the  fame  Ad* 
■mTx^XcX-  vowfon  IS  alligned  in  Dower  to  anyWoiuafi,  or  to  Tenant  by  the  Curtefy, 
fevvcd,  fii-ft,  ivhich  doprefcnt^  and  alter  the  Death  of  fuch  Tenants  the  very  Heir  is  di- 
Thurthe       f^ui  bed  tofrefcnt  ivhen  the  Church  is  void. 

Hell- III  _Rc-  j^  IS  provided,  "That  from  henceforth  it  pall  he  in  the  Eleftion  of  the 
prov'i'dedVor  F arty  dtfturbed,  whether  he  wi//jue  a  Writ  of  Quartilmpcdk,  or  of  Dar- 
in this  Caft,  rein  i'rejentment ;  The  {■a.mepallhe  obfervcd  in  Adi-owfons  demifed  tor  Term 
apd  not  the    Qf  jLjie  of  Years,  or  in  Fee-Tail. 

LcfTor  him- 

klf ,  For  I'.c-reit  isfaid,  V'erusHxres.  2dly,  That  albeit,  Tenait  by  tlie  Cai-teff,  Tenant  m  Dower, 
Tenant  for  Life,  or  Tenant  in  Tail  prefented  laft,  yet  the  Heir  to  whom  the  Reverfon  fnlleth  iv  Pi^Jfe£io?i, 
fli.iU  have  by  this  Branch  an  Affife  of  Darrein  Prefeiitment,  albeit  the  Heir  or  bis  Anccftor  did  not  im- 
mediately prefent  before.  2  Inft.  562. 

For  on  this  6.  Affife  o{  Darrein  Prefentment  is  not  maintainable  lythe  Baron  akne^ 
Writ  the  j.j  -Jure  Uxcris,  without  naviing  the  Feme  with  him.  Contrary  of  Quate 
flilirbe^""-   Iinp'-^^^i'^-  Br.  Darrein  Prefentment,  pi.  3.  cites  14  H.  4.  12. 

covered; 

But  in  Ouare  Impcdit  nothing  (hall  be  recovered  but  the  Prefentation  or  Damages ;  and  if  m  Quare  loi- 
pedit  brought  by  the  Patron  alone,  a  Writ  fliould  be  awarded  to  t!ie  Bilhop  againll  him,  it  would  not 
bind  the  Feme,  who  is  not  Party.  Br.  Quare  Impedit,  pi.  41.  cites  50  E.  5.  15. 

S  p.  Jenk         7.  TYiQ  King  may  maintain  an  Affife  of  Darrein  Prefentment.  F.N.  B, 

,,p!/.    Forji.    (C) 

the  Prelent- 

ment  only  is  to  be  recovered.     Underftand  that  the  King  may  maintain  this  Writ  of  any  other  Church, 

but  net  of  a    Prebend.  Jenk.  i.  pi.  I. 

F  N.  B.  52  8.  Affife  of  Darrein  Prefentment  doth  not  lie  for  one  Coparcener  againfi 
(AVmthe     the  Other,  as   appeareth  M.  20.  E.  3.  &  M.  15.  E.  3.  pi."  10,  F.   N.  B. 

Tsote  m  the  /an  ./^r 

Margin  32  (A) 

cites  20  E. 

2.  Dar.  Prefentment  11  &  15.  but  Hiys  they  leem  to  make  a  ZJ/fercwe,  'when  the  DiJfurbMce  is  before  the 

Qmffitton  to  prefent  by  Turns,  andiehen  after. 

*  Both  the  9.  If  a  Parfon  be  Patron  of  a  Vicarage,  and  the  Vicarage  I'oids,  and  a 
Tr,;!.flations  Stranger  prefent s,  the  Parfon  fliaJI  have  a  Quare  impedit,  or  Darrein  Pre- 
wIrd'Not')^entmenti  But  if  the  Six  Months  pafs,  he  ffiall  *  [not]  have  a  Writ  of 
but'itisin  Right  ofAdvowfon;  becaufe  that  Writ  is  given  only  for  him  who  hath 
the  French  the  intire  Fee  and  Right  in  him,  and  the  Parfon  hath  not  the  fame; 
Origin.^1.      f^^  the  Right  is   in  the  Patron  and  Ordinary.  F.  N.  B.  49  (K) 


(I.  d)  Affife  of  Darrein  Prefentment.     offvohat  Thhig. 

I-  nri>3!^  tJBrtt  is  all  in  the  PoOeffion,  aitti  tijc  l^refentmcnt  10  tlje 
X  poirclfion.  21  e*42. 

2.  An  Alfife  of  Darrein  Prefentment  does  not  lie  DePrehendis  or  Ecck' 
ftis  Prelendatis ;  ita  Provifum  eft  coram  Rege,  Archiepifcopis,  Epifcopis, 
Comitibus  &  Baroni bus.  Jenk,  1.  pi.  i.  cites  19  H.  3. 


(K.d) 


Prefentation.  a.  79 


(K.  d)    7/7^^7;  will  be  fiifficmit  Setjln  to  maintain  it. 

!5cc  ( K.  d)  — 
(O.  d) 
I.  TXftitution  Of  I)iS  Clerli  without  Induction  IS  fUlTtdCnt  tO  UtaUl-- VV 'icn- the 

1    tam  tljI0  nant.   3^  JJ»  6.   16.  b.  ordinary, 

M-.-tropoli- 
tan,  or  King  prefenrs   for  Lafft,  any  of  thefc  Collations  will  fervc  the  Patron  for  PolTeffion  in  his  Af- 
ill'c  of  Darrein  Prefentmcnt.     Godolph.  Rep.  645.  c;ip.  44..  S.  i. 


(Iv.  d.  2)  Darrein  Prefentment.      Procced'tf/gSy  PkadingSy 

and    "Jiidgmoit. 

I.  tN  an  AfTife  of  Darrein    Prefentment  of  an  Advowfbn  in   Grols, 
-*-  Jcintenaucy  is  not  a  good  Pica.     By  the  Judges  of  both  Benches. 
Jenk.  13.  pi.  23.  cites  15  E.  3. 

2.  Where  the  King  or  the  Pope  preftiits  to  my  Jdvowfon  \a'r'y]iit  'fitk^ 
I  fliall  have  Aifife  ot"  Darrreifi  Prefentmcvt  agntufv  the  Incuiiil^nt  alone 
ivithctit  naming  the  King  or  the  Pope  ;  For  Procefs  cannot  be  made  againlt 
either  of  them.  Br.  Darrein  Prefentment,  pi.  4.  circ?  3  H  7.  7. 

3.  If  a  Wan  prefcnts  to  an  Advowfon,  and  afterwards  the  Parfou  rejigns 
cr  IS  depofed,  and  the  Patron  prefents  again^  and  is  di'iurbed,  he  ihail  ha/e 
zn  Affile  of  Darrein  Prefentment ;  and  the  Form  of  the  Writ  ihall  be  J^iis 
Jdvocattts  tempore  Pacts  prefentavit  tiltimam  Perfonam^  qua:  ■mortua  t//,  ad 
Kcchjtam  &LC.  although  he  relign  and  be  living.  And  the  Form  ot:  the 
Writ  is  to  fuppofe,  that  the  Defendant  does  deforce  him  of  the  Advow- 
fon, and  yet  by  his  Count  he  counts,  that  he  or  his  Anccftors  l-xi^  pre- 
fcnted  to  the  Advowfon,  by  which  he  does  iuppofe  that  he  is  in  Fouelli- 
on  ot  the  Advowfon  ;  and  yet  the  fame  is  good.     F.  N.  B.  31.  (H) 

4.  If  one  Defendant  in  a  Darrein  Prefentment  dies^  the  Writ  is  good  by 
the  Survivor  againlt  the  other.  F.  N.  B.  32.  (B) 

5.  If  a  Difturber  prefent  toan  Advowfon,  and  the  Patron  bring  an  Af. 
fife  of  Darrein  Prefentment,  and  pending  the  Writ^  the  Incumbent  dies^ 
it  i\vi  Difturler  prefents  another  Jnctimbent  and  dies ^  yet  the  Patron  liiall* 
have  an  Aliife  of  Darrein  Prefentment  upon  the  ilt.  Dilfurbanceagainft  the 
Heir  of  the  Dillurber  by  Journey's  Accounts  j  and/i)  if  the  Difiiirber 
prefents  two  or  three  tunes  within  the  6  Months,  the  \ery  Patron  Jhall  have 
an  Alfife   of  Darrein    Prefentment  upon  the  Jirjl  Dijhirbance.     F.  N.  B. 

32-  (C) 

6.  A  Man  fliall  nof  tender  a   *  Demy-mark  againftthe  King  to  enquire  *  ^f  }'^' 
of  the  Seilin  alleged  in  the  King's  Count  or  Dechiration,  as  he  ihall  in  i^yn,'^,j,^m''us 
Cafe  a  Common  Perfon  brings  the  Writ ;  neither  Ihall  a  Man  hiwQ  final  occurritRe- 
Judgment  agamflthe  King^  although  it  be  after  theMife  joined  betwixt  gi,  und 
the  king  and  the  Tenant.     F.  N.  B.  3 1.  (Vf)  therefore 

Hiall  allege  that  he  or  his  Progenitor  was  feifed  without  ftewing  any  time.  Co.  Litt.  294.  b. — •  F.  N.  B. 
;i.(D) 

7.  In  Darrein  Prefentment  it  was  pleaded  in  Abatement  of  the  V^rit,  l*>Io.  SS5.  pi. 
that  the  fanie  Plaintiff  had  brought  a  ,^uare  Imped:  t  for  the  fame  Church  I?^'-^  ^'c"c 
againji  the  fame  Defendants^  which  Writ  was  *  returned^  and  that  they  did  bv°ti,e  Vam'e 
appear  to  defend  it.     The  Court  held  the  Plea  good  in  Abatement  of  the  cf  t:r-\M- 
W'rit ;  For  the  Quare   Impedit  is  a  Writ  of  a  higher  Nature,  it  being  'age  of -St. 
fcff  the  Right  and  the  Polielfion.     And  the  Statute  of  W.  cap.  5.  lays,  ^''•'^,''^^''^  ^• 
It  may  be  in  the  Eletlton  of  one,  whether  he  will  have  an  Alhfeof  Dar-  ^f  York  ai^d 
rein   Prefentment  or  Quare  Impedit,  and  therefore  he  cannot  have  them  Counref-iof 

boih.  Shrew  ibury 


48o 


Prefentation. 


• — »rownl.  both.    And  the  Court  awarded,  that  the  AiFile  abate.     Huct.  3.4.  Mich. 

J'-  ^-  ^-^y  15  lac.  Andrews  v.  Hacker. 
N;ime  or  air      •'  -' 

V\  illi.im  .St.  And  rcw  v.  Archbifhop  of  York  and  the  Countefs  of  Shrewsbury    &   J.  H.  — : S.  C. 

Hob   1S4  pi.  221. G.  Hift.  of  C  B.  zo;.  cites  ii.  C. V\  mF.  Comp.    Ir:c.   tivo.    435,  43(5 

cites  f;imc  Call's. 

So  where  AliiCe  of  Darrein  Prefentmeiit  was  taken  by  Defmilt  a^^awfl  the  Clerk,  and  the  other  Tenant 

pleaded  hi  .-Jl/iitenie>it  of  thcAflile,  that  there  was  a  ^iiare  Jwpedit  depending,  the  Plea  wusadjudg'd  good. 

Brownl.  zS.  Trin   12  Jac.  Lovelace  v.  Lady  Spencer. *  Warburton  J.  cited  loE.  9.   itatham  in 

Darrein  Presentment  3.  that  it  was  urg'd  by  Hank  and  Hill,  that  the  f.>_uare  Inioedit  was  not  depending 

till  Defendant  had  appeared.  Hutt.  4.  but  the  Book  lays,  Vide  2  £. 4.  tt)l.        that  it  is  depending  when 

it  is  returned. 

Watf.Comp.  8.  If  Darrein  Prefentment  be  brought  in  Mid^/efex,  at  the  Return  of 
"^-  ^,^"-  g  the  Writ  the  ^-Jj/zfe  ./I.'>a/i  be  there  arraigned  b)-  the  Serjeaius  at  the  Bar 
cites  S.  C.  —  '"  tr^^nch^  and  the  'Tenant  llTall  be  demanded^  and  if  the  Tenant  do  not  ap- 
Ibid.  5;o.  pcar,  when  he  is  demanded,  a  Re-fnmmons  ihall  beawardedi  and  {/«/>- 
cip.  2S.  cites  0;;  xhe  Re-fimvnms  the  'Tenant  frail  not  appear,  the  Jlfife  frail  be  taken  a- 
■  gainlt  him  by  Default  3  and  if  the  Tenant  appear,  he  may  demand  Oyer 

ol  the  Writ  and  the  Return,  and  the  Writ  Ihall  be  read  to  him  in  hsec 
Verba,  and  the  Return  thereof,  and  the  Jury  jb all  have  the  Viezv,  and  the 
Tenant  may  take  Exception  either  to  the  W^itor  to  the  Return  there- 
of, if  there  be  Caufe  J  and  if  there  be  no  Caufe,  then  he  may  prayaD^jv 
to  plead  i  and  it  the  Court  give  a  Day,    then  the  Jurors  that  appeared 
Ihall  be  difcharged  of  their  Attendance,  and  ought  to  appear  upon  a 
KewProcels  to  be  awarded  again  ft  them.     Tht  Judgment  in   this  Affife 
*  S.?.  ]cnk.  is  to  recover  the  *  Prefentation^    Damages,  and  the  Value  for  half  a  Year, 
2  pl.  I.  cues  jjj^^  jj.  g  Months  be  palled,  the  Value  of  the  Church  lor  2  Years,  by  the 
^    •'•'  •     Statuteof  Weftminlter  the  2d.  and  6  of  the  Jury  ought  to  have  the  J7<'a; 
of  the  Church,  to  the  Intent  that  they  may  put  the  Plaintiff  into  Pollef- 
iion  if  he  recover  3  and  in  this  Writ  the  Plaintiff  Ihall  not  recover  the 
Advowfon  but  the  Prefentation.     The   Procefs  in  this  Writ  is  Summons^ 
Re-ftminions  againft  the  Tenant^  and  Summons,  Habeas  Corpus  and  Difrrefs 
againji  the  Jury,  and  the  Procefs  lliall  be  returned  jrom  \$  Days,  to  15 
Days,  at\d  no  Ffroign  nor  Voucher  lies  after  a  Re-fummons.     Brownl.    160. 
70.330.  g    The  Declaration  in  AlTife  of  Darrein  Prefentment  was  ^uod  ipfe 

ilio"^ofSt'  Pr^fentavit,  without  faying  yld  eandem  Ecclejiam.  Upon  Error  brought 
Davids  s.C  it  was  adjudged  well  enough  3  For  it  cannot  have  any  other //;ftv/ii'- 
butnot  S.  P  went  than  that  he  prefented  to  the  fame  Church  mentioned  in  the  Plaint  3 
And  theWords  after  {.^uodAdmifriis  i^c.  ftiit  in  eadem)  refer  to  the  Church 
mentioned  in  the  Plaint,  and  therefore  it  was  held  good  enough,  and 
fo  affirmed  a  Judgment  given  in  the  Grand  Seffions  in  Wales.  Cro.  C. 
341.  348.  Hill.  9  Car.  B.  R,  Cort  v.  Bilhop  of  St.  David's,  Owen, 
and  Pritchard. 


(K.  d.  3)  Verd't^i.     Good,  in  Darrein  Prefentment. 

It  Ihall  be  1.  tN  Darrein  Prefentment  Verdift  found  the  IlTuefor  the  Plaintiff,  and 
intended,  -I-  ^\-y^^  xhe.  Church  was  full  of  P.  the  Defendant,  Per  tempus  femefrre 

naut  was  ^^^^^  PrcEteritum,  and  lliewed  not  When  or  How  long  it  was  void,  {o  as 
brought,  and  it  might  appear  to  the  Court  3  and  it  was  obiefted,  that  this  might  be  a 
that  there  long  time  belore  the  Writ  brought.  But  all  the  Court  delivered  their 
was  no  Pie-  Opinions  feriatim  that  the  Verdift  is  good,  and  that  it  is  not  necelfary 
tlie"writ  '^  to  find  W  hen.  But  the  Jury  having  found.  Quod  tempus  femellre  Mo- 
purchafed,  do  tranfivit,  the  Modo  tran/hit  ihall  he  intended  that  the  6  Months pajfcd 
■anlefs  it  be     hanging  the  fVrit,  which  is  the  only  Thing  inquirable  in  refpeft  of  the 

Da- 


Prefentation. 


481 


Damages.  Cro.  C.  341.   348.  Cort  v.  Eilliop  ot'  Sc.  David,   Owen,    &i  pIcMrfcd.  Jo. 
Pritchard.  ^^o- Hill.  9 

Car.  B  R. 
the  5tli.  Rcfolution  in  S.  C.  by  the  Name  of  Lort  v.  the  Bifliopof  St.  D.u'id. 


(L.  d)    Right  of  yidvowjori.      Of  njohnt  Thing. 


I.   A  Hi 


Hiffljt  of  armOtofOn  ItC0  of  an  Appropriation.   44  €♦  3-  34- 

i).  4.  14.  b*  Contra  Com,  tJ5rcnDon  501. 


2.  The  King  broughc  Writ  of  Right  of  Advowfon  of  the  ^ib.  Part  ^"^'^S^ioi 
of  the  Church  of  St.  Dmijlan  in  L.  The  Defendant  put  himfelt  in  Inquelt  ^'J']/'""'^"" 
in  heuot  Grand  AHife  i  Per  Pole,  upon  Grand   Aliife  Nili  Prius  is  not  p '//^f/^'^ 
grantable  i  Quod  Nota.  Br.  Droit  de  recto,  pi.  14.  cites  24  E.  3.  23.        ^nhes  and 

offering!  of 
the  Cliirrh  ot'S^  D.  in  L.   Cand.  demanded  Judgment  of  the  Writ  ;  For  the  Statute  ofW.  z.g.Tve  Tithet 
er.ly.     Per  Thorp,   the   Chancery  mav  make    Writ  of   Tithes  and   Offerings  //;   Conjimilt  CajH,  and 

tlierefoi-e  he  awarded  the  Writ  good.  Br.  Droit  de  reito,  pi.  8.  cites  38  E.  5   i; S.  P.   F.  N.  B. 

10  (,G) But  onefhall  n-t  have  a  \A'rit  of  Riglit  of  Advowfon  of  the  tithes  of  a  C.zrvc  of  Laml, 

becaufe  it  does  not  thereby  appear,  whether  it  be  of  the  Value  of  the  4th  Part  of  the  Church.  F.  N. 
B.  30.  (G)  m  the  new  Notes  there  (a)  cites   iS  £.  2.  BriefS25. 

3.  Writ  of  Right  lies  well  of  the  *  Moiety  of  an  Jdvowfon  of  a  Churchy  S.  P.  Where 

or  of  a  xd  or  Ath  Part  thereof,  and  yet  an  Advow  fon  is  entire.  Br.  Brief, '''  ^^''^"'^'^ira* 
^  ^      /     •     ^     Tx  •'  'to  have  Fee 

pi.  316.   Cites  5  H.  7.    7.  Simple  in 

the   Advow- 
fon.    F.  N.  B.   50.  (G)' ♦  S.  P.  Br.  Quare  Impcdit,  pi.  10.  cites  53  H.  6.  11. Wiicre  tivo  AA~ 

lioKfcns  in  one  Church  are  ccnfclidateii  into  one  Church,  there  each  fhall  have  Writ  of  Right  De  Advoca.. 
tione  Mcdietatis  Ecclcfix  ;  for  now  they  are  two  Advowforrs,  and  yet  but  one  Church,  where  they 
were  two  before.     Br.  Quarc  Impcdit,  p).  10   cites  53  H  6.  11. 

F.  N .  B  5 1 .  (B)  fays,  That  in  3  i  E.  i.  it  appears,  that  a  Man  fliall  have  a  Writ  of  Right  De  Medie- 
tate  Advocauonh  ••^■here  an  Advcwfcn  is  p:irtih/e  het-ivixt  zCo!>.7rcenerj,  ami  one  of  them    is  liijiiirhed   by  a 

•Strangr. But  thcWrit  of  Right  De  Advocatione  Mediecatis  Ecclefise  lay  inhere  2  Ccp.!r(e::crs  do  pn- 

fint  z  P.vfons  to  one  Jd-joafon  &c.  a.s  tiiere  are  in  fome  (Jlairchcs  1  Purlbns  &c.     F.  N .  B.  3  i  (B) 

4.  Writ  of  Right  quod  rcddat  Advocationem  of  the  Tithes  of  4  Acres, 
rr  of  one  Acre,  and  the  like,  zvas  at  Common  Law ^  and  therefore  the 
Statute  was  made,  that  Writ  ot  Right  of  Tithes  ihould  not  be  granted 
of  Jeis  Part  than  of  the  4th  Part  ot'  theTitlies.  And  fo  Precipe  quod 
reddat  Advocationem  Deciniarum  quarts  Partis,  tertiae  Partis  &:c.  Per 
Markham.     Er.  Prohibition,  pi.  7.  cites  3S  H.  6.   19. 

5.  A  Writ  of  Right  of  Advowfon  liech  de  Advocatione  Vicarij;,  vcl  *  S.?.  Jevk- 
*  Frieiend.c  rr/f  C'pc/Ia;  and  fuch  like,  as  well  as  De  Advocatione  lie-  '■  f'-. '• 
clefias.F.K.B.  31.  CC)  Utve 

tliis  Writ 
$f  a  Ch.^pel  \vl;ich  is  a.D(!Kaiiie,  as  well  as  he  fliatl  have  if  it  were  prcfentable  to  the  Ordinary    F  N  B 


(L.  d.  2)     Writ  of  Right  of   Advowfon.      Bj;  or  agahfl 

ichom  it  lies. 

i.TTCTHEREa  Partition  is  made  between  Parceners  to  prefent  by  Tarn, 
y  y\    they  are  all  Tenants  thereof,  and  W'rit  of  Right  of  Advow- 
fon Ihall  be  brought  againil  all,     Br.  Quare  Impedit,  pi.  73.  cites  21  E. 

3-  30,  ,31- 

2.  Tenant  in  iTI?// cannot  have  Writ  of  Plight.     Br.  Qiiare  Impedit,  pi. 
31.  cites  43  E.  3.  24. 

6  F  5i.  Where 


482 


Prefcntation. 


Jir.Oii.irc  2-  W  herd  ^  Prior  was  Parfoii  liiiparfvnee^  a.n6.  J.N.  p;-eft:nterl  bis  Ckrk 

Impcdir,  (jI.    ^^  ^j^^  y.'j/A't'  Church.,  \\'ho  was  admitted,  ttijlituicd  and  inducted.,  )  ct  by 
1  '4--      <-s       j.Vjjg  j,]^^  Prior  is  not  out  out  of  PniicHion  ;  for  he  *  cannot  have   hrit  of 


cites  ;b  H.  0.      .       J       I  T    /- 

20.  —  s.  p.  cites  39  H.  6. 

Br.   ['lohibi- 

tion,  pi.  -.  cites  ;R  H,  6.   10.     Per  Danby,  Davers,  and  Moyle  ;  but  Yclverton  Contra  S.  P. 

But  Brooke  f'lys,  ^uxre  in,h  ;  for  tlie  contrary  was  held  in  tlie  E;:chequer-Chamber  by  Yclverton  and 
Fortefcue,  That  a  ']   Parfon    Imparfonee  fliall  have  Writ  of  Right,  and  fliall  aUe.(;C  Ei'plees   fpcci.iUy 

by  their  Hards.     Br   t)roit  dc  Recto,  pi.  22.  cites  ;y  H.  6.  20,  21. f  S.  P.    Jir.  Spoliation,  pi.  4. 

cites  5S  H.  6.  19.  tiiat  he  may  have  it  as  Patron.     Per  Yclverton. 

]bid  pi.  i;4..  4.  Writ  of  Right  of  Right  of  Advovvfon  lies  againjl  the  Patron  only 
cite.s^E^4.  ^r_  q^^^^  Impedit,  pi.  6.  cites  9  H.  6.  30. 

Judgment,  pi  5'-  ^ites  59  H.  6    25. 

T'j/f  if  a  Man  j;.  A  Writ  of  Right  of  Advowfon  lies  only  for  him  who  has  an  Eflate  in 
havcan  ;\d-  ^j^g  Advowfon  to  him  and  his  Heirs  in  Fee  Simple,  cr  Right  of  Ejlate  to 
'Vm^MhUU  ^-""-  '^'^'''^  ^-"^  Heirs  in  Fee  Simple  in  the  Advowibn  ;  and  if  lie  be  dilturb- 
fleirsoflis     ed  to  prefent,  then  be  lliali  have  the  VV^rit.     F.  N.  B.  30.  (B) 

Boiiybenoltc7i, 

and  for  Default  of  fuch  IlTue  &c.  the  Remainder  to  lini  rtid  lis  Heirs  in  Fee  Sin.ple;  if  he  be  difiurbed, 
he  fhall  not  have  this  Writ,  but  a  Quare  Impedit,  btcauie  he  hath  not  Title  to  the  Aiivovsion  bun  in 
Tail,  which  is  in  PolTcffion  ;  for  the  Fee  Simple  is  not  properly  in  PoffeTion  during  the  Eltate  Tail,  and 
he  ought  to  maintain  the  Action  bv  that  Title  that  he  claimeth  the  PolTeflTioa  of  the  Advowfon  by,  and 
that  is  of  an  Ertate  i-i  Tail.     F  K  B.  ;o.  (B) 

And  therefore  by  Thorp,  If  a  Clerk  be  inftituted  but  not  indufted,  he  fliall  not  have  this  Writ  of 
Right  of  Advowfon.     F.  N.  B.  30.  (B)  in  the  new  Notes  there  ;_b)  cites  3S  E.  5.  9.  a. 

6.  Where  one  nfiirps  tipon  Lc/Tte  for  7l-ars,  by  this  the  Ufurpcr  has  the 
Fee,  and  againll  him  the  VV^rit  of  Right  lies,  and  that  delcends  to  his 
Heirs.  Hutt  66.  The  firll  Refolution  in  the  Cafe  of  Rudd  v.  the  Bi- 
Ihop  of  Lincoln. 


(M.  d)     Right  of  Advowfon.     In  what  Cafes  a  Sci^/^  is 

*  ^^  i.T7VERYonemuft*count  of  fome  Seifln.  Jf  tPurchafor  faffers  anU- 

T'rtnT,[  i-j  lurpacion,  aiiti  niffcr0  6  (i5ontf)C to pafs, Ijc  10 iBitljout Ecuie= 
cap  i;" '"  IJP  iicrpmiiiUp  (for  \)z  cannot  count  of  anp  ^nlin)  Co»  lo.  134.  h. 
t  s  P..10.49  43  €*  3-  15-    I P*  4-  2.  i)»    43  Slfu  21.  pctCljorpe* 

in  the  Cafe 

of  Dalton  v.  the  Bifliop  of  Ely.     Watf.  Comp.  Inc.  3vo.  242.  cap.  1 9 .  cites  Same  Cafes. 

2. 3f  Purchafor  in  Tail  fuffctd  an  iifittpation  bcfotc  lavcrcntuicnt, 
i)e  10  tuitijout  Kcmctip  miruitj  I)i0  ittt  4s  e*  ^.  15-  aajiitis  D» 
(antibPtljcCounnouLauitljcBucfoc  mt  before  tljc  8»tatutc  of 

W.  2) 
s.P.  Other-      3.  ^x  OUntljt  to  fliew  PofTeffion  In  him  or  his  Ancdtors.     21  E.4.  i 

not  he.    F.  N.  B.  50.  (B) 

Br.  Quarc  a.  \S^here  the  King  has  Title  to  an  Ahozi'fon  by  Jlienation  in  Mortmain y 

'o  otes'sc  he  cannot  have  Writ  of  Right  where  Preientation  is  got  alter,  becaufe 

""  ■  ■  ■  this  is  upon  other  Poffeffton.,  and  alfo  he  has  no  Right  but  only  a  I'ltle ;   and 

therefore  Ihall  Iiave  (^uare  Impedit,  which  is  in  the  Poffeilion,  after  di- 


Prefentation 


vers  Prefentments  within  the  Year;  quod  nota;  Br.  Droit  de  Recto,  pi. 
5.  cites  47  E.  3.  II. 


(N.  d)     In  asjhom  it  is  to  be  alleged.      Sc'tfm. 

I  Tif^  i^Il  ^DlJOlUfOll  lie  given  in  Frankalnioigne  before  Limitation  to  a 
1  Religious  Houfc,  UJljiCl)  tSS  aftCC  diliblved,  flttD  ilftCt  tfjC  COtirc!) 
tJOltlEi,  the  PolielFion  of  the  Houle  IJS  nOt  fUfflCtCUt  fOC  tljC  Jf  OUUncr. 
21  ^»  4-   "5  2.  ll»  .    .     ,-,  ^ 

2.  3f  tl)e  Lord  claims  tO  IjtltlC  illt  atJUOlUrOU  aliCU'tl  Itl  Mortmain  bU  Watf. 

IjidCennnt,  a  Seiiin  in  the  Tenant  is  not  fumcicnt  to  maintmn  tljiis  \Z\1^ 
i©rit,  bccaufc  tijijj  is  not  aup  ^cifin  in  ijnn  or  iji.si  anceftotii?*  21  cap.  t;.  dt 

cap.  13.  cites  S.  C 

By  whom. 

3,  Taking  of  Efplees  by  the  Incumbent  \%  fUfnCtent  fOt  tIjC  l^attOn*  !"^  ^,^'- 

21  €♦  4*  u  iJ»  ' 


cites 


(O.  d)     Right  of  Advovvlon.     jHun  Sc'tfm  fliall   be    s,e(F.  d) 

jufjicteut.  ^^•'*) 

I,    A  DdmifTion  and  Inftitution  Of  {)i3  €lcds  n  ithout  Induction,  tlOtl)  JJJ"5\!;"'"P- 

A  not  mmce  to  nwmtaui  tijis  ilBcit,  liecaufc  in  tijjo  m-it!jc  ../.ca?:  i;. 

ou-ut  10  allege  Eiplees  in  his  Clerk,  nS  m  PCtCCptlOn  Of  great  I'lthe.s,  cites  S.  C  — 

nuri  cijifJ  i)c  cannot  no  iuitl)out  Intiuction ;  for  before  Jntmcrton  Ije  s  p  b--- 
Ijaa  no  €iiatc  in  tlje  »©lcbe.    38  e.  3. 9.  €onu  Hare  and  BukUy  5;'";i;j^-3 

523.   finiUttC  3^  ^>  6.  17*  E.;.4. 

S  P    Br  Droit  de  Rcdto,  pi.  i.  cites  26  H.  S.  5. .S,  P.  Br.  Qiiare  Impedit,  pi.  i.  cites  22  H.  6.  z;. 

^ S.  P.  F.  N.  B.  50.  CB) 

2»  ^  <S'.e(fjn  before  Time  of  Memory  id  not  fiifficlcnt  to  maintain  ry^-f^^ 
t\)\i  ferit.    21  e.  4. 1*  2.  b  anmittcc.  i.^^^^^ 

H    W a  C^an  has  once  prefented  and  his  Clerk  inducted,  If  tljCtC  arC  vv^ti  Com,'. 

after  diveril- ufurpacions,  vcttijt5  larcfeiituient  1*5  fufficicnt  to  main--inc  svo. 

Cafes. 


(O.  d  2)    Right  of  Advowfon.  Procecdhigs  and  Phid'u/gs.^^^^u^^^^ 
And  rjjatfiall  abate  the  fh'it,  p'-  ''  - 

I.  r\UARE  Impedit  was  awarded  good,  notwithitanding  an  Omijfion  of 
'  M.  a  Mcfiie  in  the  Conveyance  S-onuA  in  Writ  ol'Right;  and  it  may  be 
that  he  in  whom  Omilhon  is  alleg'd,  was  never  feifcd ;  and  therefore  the 
Writ  awarded  good.     Br.  Quarc^Impedit,  pi.  32.  cites  44  E.  3.  21. 

2.  In  Writ  of  Right  of  Advowfon,  the  Tenant  Ihall  come  and  make 
Delence  and  may  join  the  Mife  by  Battel,  or  Gnind  Ai.rile&c.  F.  N.  B. 

30.  CO        ■  ^, ,, 


484 


Prefentation. 


3.  W  fwo  t-rtng  l\rit  0}  Right  of  Jdvfwfoti^  orij  it   be  brought  agamji 

tzi'o,  and  the  one  dies  of  the  one  Part  or  the  other,  the  Writ  Ihall  abate. 

Contra  in  a  Quare  Impediti  lor  there  after  Title  made,  the  Defendant 

is  bet-ome  Atior,  and  he  may  recover  Damages  againft  the  Plaintiff.  Br. 

()uare  Imped  it,  pi.  6.  cites  9  H.  6.  30. 

In  this  ^    In  Writ  of  Right  of  Ad  vowfon,  the  6'/5m^»wj)i/7/w///o»  the  Defen- 

7JZcI]%M  '^''"'  "'  ^''"  Church.     Per  Danby  &  Cott.     Br."  ^yare  Impedit^  pi.  ij2. 

Jmade'i«     citcs  H  H.  6.  3. 

the  O'lehe, 

und  the  Glebe  fhall  be  taken  into  the  King's  Hands  at  the  Grand  Cape.     F.  N.  B.  50.  (.3  )  In  the  new 

>Jotcs  there  (c)  cites  u  H.  6.  5.  4. 

5.   In  \\'rit  of  Right  of  Advowfon,  it  is  fufficient  to  plead  Recovery^ 

tvithmit  alkgtiig  Prejhitment.     Per  Prilot.    Br.  Judgment,  pi. 51.  cites  39 

H.  6.  23. 

v''<5?r'-l  '^'^      ^'  ^"  ^'ght:  of  Advowfon  the  fe/ja/rt  /aid  that  the  Dem.'jj:dant  wasfeifcd 

1-*  ci'cl        ''  ^^'^./'^^'^  ^^^^  of  the  Advo\i)foH  at  the  Time  0/  the  Writ  piirchas'd.     Et  per 

s  c. t^o"^-  ^ur.  It  iliall  abate  the  whole  Writ  ;  for  the  Adxowfon  is  intire 

Br.  Abridg-  and  not  feverable,  and  he.  cannot  abridge  his  Dciiux/id.^  nor  he  cmnot  recover 
"^""^^Pp  ''■  ^^^  entire^  accordnig  to  his  Demand  ;  and  therefore  he  ought  to  have 
cites S  C.       brought  his  W  ritof  5  Parts.     Br.  Brief,  pi.  316.  cites^  H.  7.  7. 


the  cinon  ^        (P.  d)    Jiu'e  *  Patronnti^s.     What.    [///  Gc}!era].'\ 

Law,  a.s  alio 


in  the  Fends, 

(«  herewith    i,  T  jf  one  Man  prefents  IjiS  CICtK  tO  t\)Z  IBlfijOp  within  the  6  Months, 

our  Com-       |  1  r^^idi  another  alio  preients  his  Cierk  i  \\\  tljtS  Ci'llC  tlje  CJllirCf)  13 

do°h  heixin  LitiginujJ,  auD  tijc  ^^ifljop  map  aoiarn  tm  riBnt  of  3iifC  ]i'atrona» 
accord)  doth  tii.0  to  imiiuix  to  uiljoiu  tije  Mx&t  belonc^. 

fignify  a  Per- 

firiuho  hath  of  Right  in  him  tic  free  Donation  orGifto/.!  Brmfce,  g)-cutiiled  or'igir.aWy  upon  the  Botwty 
and  Beneficence  of  }i<ch  as  Founded.,  EreCted  or  Endowed  Churches  witli  a  confidcrable  rare  of  their  Kc- 
venue.     Gcdolph- Rep  17S   can  \6.  S.  i. 

When  the  Ordinary  inquires  De  Jure  Patronatu^,  he  makes  Commiilion  to  his  Clerk  to  do  it  Br. 
Quare  Inipcdit,  pi.  12.  cites  53  H.  6.  12.  &c.-- — Tlic  Jure  Patroiiatus  is  only  for  the  Excule  of  the 
Bifliop.    Br.  Quare  Impcdit,  pi.  12. 

f  If  tKo  P.zlrois,  e,irh  pretending  a  Ri_^ht  or  Title  to  the  Prefentation,  fhall  prefent  one  and  the  fame  Pcr- 
fon  feveral!)  to  the  B'fhop,  to  be  Admitted  and  IiilHrured  to  the  Church,  the /?///w^  cannot  admit  him 
generally,  Lut  muft  in  his  Admittance  of  the  Incumbent  admit  him  Innimient  0}  the  Prefentation  only  of  one 
cf  tiein  ;  and  if  they  make  lucii  feveral  Prefentations,  claiming  by  feveral  Titles,  the  Bifliop  is  to  direct 
his  Writ  Dc  Jure  Patronatus,  for  that  in  fujii  Cafe  the  Church  is  become  *  Litigious,  yet  the  Bifhop  is 
not  to  award  the  fiid  VS'rit  but  at  the  Inftance  a  ■•d  Requell  of  the  faid  Parties.     Godolph.  Rep.  i  So  cap. 

1(5.  S.  3 S.  P.  Watf  Comp.  Inc.  Svo.  405.  cap.  20.  citcs  Purfons  Law.  100.  cap.  1 3. *  Br. 

Quare  Impedit,  pi.  S.  cites  21  H.  6.  44.  S.  l\ 

Where  two       2»  ^\0  tlDtlt  iffues  out  of  the  Chancery  of  the  Ordinary.     34  $p»  6* 

Patrons  pre-    39^  jj^   ^jr  ^Qy\Z, 

fent,  theBi-    •'''  ^  -^    ' 

fhop  is  wont  to  deeree  a  Precefs  commonly  called  Ne/rotium  DeJ^iire  Patronatus,  (that  is)  a  Day  fixed  md 
certain  is  appointed  by  the  Bifhop  to  fit  in  the  Church  that  is  void,  and  a  AJmiiion  decreed  to  be  ferved  on 
the  Pjtronsprerenting,  and  the  Clerks  prefented,  then  and  there  to  be  prefent  to  fee  Proceedings  in 
the  faid  Bufinefs  according  to  Law,  to  which  End  a  Citation  ijfues  to  12  Pcrfons,  whereot  6  of  the  Cterpy 
and  6  cf  the  Laity,  all  j/j/:c  .\>:;^/.'i(i«c.''W  of  the  faid  vacant  Church,  to  be  then  and  there  alfo  prefent  ^^ 
Wa\  of  an  It:(jue/I,  and  on  their  Corporal  Oaths,  to  inquire  on  certain  Arti;lcs  then  miniftred  to  them, 
touching  the  Right  of  Prefentation  to  the  faid  Benefice.  Thefe  Jrticks  corft/l  chiefly  of  thefe  four 
Heads,  viz  (i.)  tf'ho  lafl  prefented  to  the  faid  Church  when  it  was  latl  void,  as  aUb  for  the  !alf  two  or 
three  Tim,es  when  it  was  void.  ( 2)  ff^hetber  the  Perfon  or  Perfons  ivko  lajl  prefented,  or  thefe  1  tit  two  or 
three  Times  or  Turns,  at  the  Time  and  Times  of  Vacancy  of  the  faid  Church,  dtd  prefent  in  his  ortheir 
own  prcper  Right  and  Title.  (  3  )  Uliether  either  of  the  Clerks  now  prefented  be  known  or  fufpeaed  of  any_  Ko- 
*ii»-/,:Ki  G;we,  or  of  Herefy,  Simony,  Perjury,  Adultery,  or  Drunkennefs  (^)  If 'hether  either  ot  rbc 
CIcrksnow  prefented,  hath  given  or  prcmifed,  either  by  himfelf,  or  any  other,  for  him  and  in  his  Name, 
or  by  or  with  his  Conient  or  Knowledge,  any  Money  or  other  Gratuity  directly  or  [r,dire6t\y,J'or obtain- 
wp  of  his  Prefertaiicn  to  the  faid  Benefice  to  the  P.itron  thereof,  or  to  any  other  who  prefented  the  faid 

Clerk, 


Prcfentation. 


485 


Clerk,  orcaufcd  him  10  b:  preC-iucJ.  On  which  Aiticles,  if  it  be  found  by  the  Veididt  of  the  (ai*^ 
|ai-y,  that  iucii  or  fuch  ofthc  fliid  [-"atroiis  was  in  tlie  ['olldhoii  of  the  Prelentation  at  that  Time,  when 
"tlic  Cliurch  was  lalf  void,  then  is  his  Clerk  to  be  admitted,  if  there  be  no  other  legal  Impediment  to  hin- 
der it,  thatis,  nothinf;  to  afcilt  him  with,  contained  in  the  ;d  or  4th  lalf  precedent  Articles.     Godolph. 

Kep  1-9.  iSo.  cap.  16.  Sect,  z.- — S.  P.  VVatf.  Comp.  Inc.  Svo.  4.21.  cap.  2i.- S.  P.  Mai.  Q_u3.  Imp. 

109.  cites  Gibr.  Cxid.  Si  6.  And  (ays  further,  that  the  Jure  P.ttroaatus  being  awarded,  is  to  he  cxeiutedac- 
lOiiung  to  the  Forms  of  proceeding  in  the  Ecclejinfiical  Courts  ;  That  the  liijhop,  if  he  plcafes,TO;r)'_//f  htm/elf  as 
"■fiicge;  butthat  the  ulual  Way  is  by  Comniillion  ilTued  to  his  Chancellor,  or  to  fuch  other  Perfon  or  Per- 
ions  as  he  fhall  judge  proper  ;  That  a  general  Citation  of  itllOppo(ers  be  alfo  affixed  ro  the  Door  of  the  va- 
cant Church  in  Time  of  Divine  Service  ;  That  there  fluill  be  a  Citation  of  .i  Jury  of  6  (;icro-v- 
nien  and  0  Laymen  of  the  Neighbnurhcod,  or  of  as  many  more  as  the  Bifhop  pleafcs^  the  Proportion  be- 
ing obferved  of  Clergy  and  Laity,  that  there  be  as  many  of  one  Sort  as  the  other  ;  And  thele  are  bound 
to  appear  under  Pain  of  Spiritual  (.Icnfures,  the  Clergy  of  Seijuclf ration,  and  the  Laity  of  Excommuni- 
cation ;  and  if  there  be  6  of  each,  the  rcll  are  pronounced  Contumacious,  and  the  Court  proceeds. 
That  the  Clergy  and  Laity,  who  arc  of  the  Jury,  be  J'lL'orn  to  tjuike  Faithful  Enijuiry,  vii.  i  if.  A 
Clerk,  and  then  aLaymia  ;  The  Jrticles  or  Hsids  of  Enijuiry  are  to  be  delivered  to  them.  As,  [belides 
others  mentioned  above]  VS'hethcr  the  Church  became  vacant,  and  if  vacant,  how  it  became  fo?  Who 
hath  the  Inheritance  of  the  Advowlbn  1  Who  ought  tn  prefent  to  the  vacant  Turn  ?  With  fuch  other 
Ciicumlfances  as  the  Bifhop  fhall  fee  Caufe  to  inquire  into;  That  the  Parlies  or  their  Counfcl  do  fit 
1o>th  their  Title,  and  produce  their  Evidences  ;  and  chat  the  Ferd.H  Le  given,  either  the  fame  Da),  ,r  at 
fuch  Time  and  l^lace  as  tie  Jiuige  Jhall  >iffign- 

3-  '^TljC  1i5itl)0p  ought  to  make  this  Inquifition  at  his  Peril.     34  JJ)»  6,  ^^  Nngn- 
4,  'fitlJIS  Wat  njall  lie  fllCtl  at  the  Colt  of  the  Ordinarv  ;  bCCailfC  it  IS  t^  'tIvu 

for  W  ^ccufCj  aim  foe  ijis  €afc,  s  lp» ?♦  22*  per Q3nau  -,  but  iicbic  in  4i.iie' 

curttca*  tT'^'"-  '''^ 

5»  Contra  34  53. 6.  \^ti  Daiilip  iinti  2  Dortor^f^    35 1)  6, 19.  Per  ^;'^'?l^  , 

Pl'lfOt.  ■  "  [lie    W   '' 

6.  15Ut  it  rceiU0  contra,  llCCnUfC  tijC  ©rtlinarS'  is  not  bumd  to  award  of  Holv 

ii  CouiunftiGii  to  iniiuirc  Dc  Jure  patrcumtus  ec-DifiCio,  Uut  atc*u,chis, 
tljc  prai^er  of  tljc  parties.  8  (£»  4. 24.  b.  per  Curuiuu  5  JO.  7*  20*  j^"  ",1"-'^= 
i),  per^seble.  22  {p.  6. 30.  per  Ovarii.   '  '  Is  Li'i''ious 

7.  For  l!j!)C;l  tljC  (JiytirClJ  IS  iLItifflOUS,  \)t  may  fu.Ter  tlie  Lapfe  td  hv  different ' 
UlCtir  without  Inquiry.      34  iX  8.  41   CUtia*  35  f)>  6.  i8.  b.  '^U^  if  Ije  ^"'-- '■!<=>  ^'s- 

fijaU  tE  couipcil  0  to  aiuarD  it  €k  £Dffida,  tl):n  (jc  iljall  ncucr  Oaiie  ""s  ^'f.^"]- 
ani)  lapit   35  ip.  6. 19.  ann  bp  34  0-  6. 3^.  it nm  be  at  the  Coits  cov^JnZJ 

of  the  Parties,  bCCUUfe  tljC  Sl)rDmarP  IS  ailltJSC  in  tljlS  CafCv  Patrons,  tlm 

the  Ordi- 
nary is  not  bound  to  prefent  any  Clerk  till  he  has  awarded  a  Commi!Tton  to  inquire  ofthc  Right  of  P.j- 
trona"-e,  and  this  at  the  0)lls  of  fome  of  the  Patrons  or  their  Clerks,  and  that'if  fix  Months  pafs  thev 
may  m.ikc  Coll.ttionby  Lapfe.  And  per  Cur.  It  I'ufficcs  to  fay  that  the  Ch.urch  was  Litigious,  and  fhew 
how,  as  above,  and  that  the  6  Months  pafs'd,  and  he  made  Collation  by  Liipfe,  Judgment  &c.  without 
fliewirgthe  other  Matter  above  ;  f  ;r  it  is  a  good  Replication  for  the  Pl.iintitf'to  fay  that  he  required 
liim  to  mouire  De  Jure  Patronatus,  and  he  refilled  ;  for  then  he  i :  Dilf-irber,  and  fo  his  Plea  good,  a  id 
the  other  Matter  is  only  Surplufage  ;  for  it  is  only  to  e?;cu't!  the  3ifhop  wh;n  he  is  thereof  acciifed,  No- 
ta.  Per  Judicium — It  was  agreed  that  the  Jure  Patronatus  jji.t//  be  fued  at  the  Cojlsofthe  Parly  or  his 
Clerk,  and  the  Bifhop  is  not  bnund  to  be  at  the  Coft.s,  for  he  is  Judf'ci  i  this  Cafe  ;  but  v/here  t^ie  Court 
writes  to  tiie  Bifliop  to  ccrtif/  Balfardv  or  Matrimony,  or  the  like,  there  he  fnall  do  it  at  his  own 
Corts  ;  far  there  he  is  a  Minilfer.  Br  (.>inre  Impcdit,  pi.  12.  cites  5  J  H,  6.  12  &  92.  94  H.  6.  11.  3? 
&  35  li  6.  18. — S.  P.  Br.  Coifs,  pi.  2.  cites  54  H  6.  3S 

8*  J-rtl'-C  ©rntltan)  be  required  toljeit  tljC  CblltCl)  IS  JiLifiSiailS,  to  Br.  Xup- 

award  a  litre  patronatus,  Ijeougljt  to  aiuarD  it,  atljetuiiie  be  iS  a  "^,",' p'tj 
S)imtvbcr.   34  ^)* 6*  40*  per  tujo*      •  6.  i^.—Qr. 

Qiiare  Impe- 
dit,  pi.  12.  cite?  34H  6.  w.  5S.  and  35  H.  6.  i8. — Watf.  Comp.  Inc.  Svo  191.  cap.  12.  cues  54 
H.  6.  40. 

9,  22  \x  6.  30,  Jt  is  faitJ  tljat  tbe  partp,  at  uiljofc  Suit  •^'■e  '1^= 

tljiS  IBrit   IS  a-UarOCtl,    ftiall   name  the   Commiliioners  i    bllt   tDete  ^"?'  "'' 

tijc  jutiiTes  fap  ttjat  is  utariiclloiis  tbat  be  njail  alTign  bis  3!itrin;es.    ' ' '■   ,,. 

10.  If  one  only  prefents,  pet  tbCBitbop  map  adaro  a  Btrc  patro=  iiobart  c  h. 

natUS.     21  tp.  6.  44  34  p,  6»  40.  j.  That  tho' 

6G  II.  If 


4^0 


Prcfentation. 


but  one  pre-     ^ '■  ^f  ouc  oiilp  ptcfcntsj,  n  Juxt  patroiuuu3  uiflv  be  auiaineU* 

lents,  yet//    21  l^.  6,  44. 

lie  liij'iop  . 

;f:nLes  iJniht  of  J  is  Title,  as  in  mary  Cares  lie  may  juftly,  h:ing  a  Strangei-  to  it,  lie  may  require  Satls- 
fiction  by  )ure  Pationatus  ;  For,a  Koratione  Nominis,  it  doth  not  imply  divcrle  Parties,  as  a  Juris  Utrum 
doth,  butlslike  a  Quojure.  Ar.d  therefore  take  the  Cafe  to  be,  that  a  i'arion  is  denrivrrl  by  the  Ordi- 
rary,  or  reads  rot  his  Articles,  in  which  Cafes  the  Church  is  void,  and  yet  Moticc  mull  be  f^ivcn  to 
the  very  Patron  tor  that  Time,  or  elle  the  Lapfe  incurs  not  (vhich  is  inconvenient  for  the  Church, 
and  a  Prejuili-e  to  the  Ordinary)  hov^  fliall  he  row  afiure  himlelf  ofa  fufficicnt  Kotice'r  for  if  lie  give 
Notice  to  him  that  is  not  Patron  for  this  very  Turn,  his  Notice  is  vain,  and  the  Patron  perhaps  knows 
not  of  the  Deprivation,  or  if  he  knows  it,  needs  not  prcfent  without  Notice  given  him  1  hold,  in  this 
Cafe,  his  V\  ay  is  to  award  a  Jure  Patronatus,  with  folcmn  Premonitions  nuorum  Intercft,  and  then  In- 
quiry being  made  who  i»  Patron,  then  to  give  him  Notice  ;  and  if  he  prcfcnts  not  within  6  Months,  tiien 
the  Ordinary  mav  collate,  though  that  (hall  not  bind  the  very  Patron,  yet  it  fhall  excufe  from  Dillur- 
b«nce  upon  fpecial  Matter  fliewed.   Hob.  ;i8.  pi.  591 .  in  Cafe  of  Elvis  v.  Archbifiiop  of  York. 

Kifrefnjt  12.  But  if  2  prefcnt,  tIjCte  ought  to  be  awarded  2  3;UrCl.3iUrOniltU0'|5. 
ykf.-„//j,^      21  i).  6,  44. 

there  2  C^-m- 

miffcas  De  Jure  Patronatus  J).i,7//  he  a-warcled  ;  And  if  the  one  he  fcui-J  Pntrcn  by  the  one  and  the  ether,  /<v  the 

other,  there  the  Church  is  litigious.    And  if  their  Titles  are  not  difcujj'ed  iiith  in  the  0  JUntis,  the  Bifliop 

may  prefent  by  Lapfe.   Br.  (.^uare  Imgedit.  pi.  So,  cues  21.  H  6   44,  Wats.   Com.  Inc.  Svo.  406  cap. 

20.  cites  S  C.  But  adds,  Tnat  Sir  J>imon  Degg  makes  a  Quaere  whether  the  Bifhop  in  this  Cafe  may  let 
the  Church  lapfe,  and  fo  collate  ?Or  w  hethcr  he  be  not  bound  to  admit  one  of  the  Clerks  at  his  Election? 
and  cites  Parfons  Counlellor  14. 

JusPatro-         ij(.   Jftljc  Ordinary  admits  the  Clerk  of  him,  for  whom  the  Ri<^ht  is 

POMht'm.e  found  upon  tijis  aant,  tijio  fljall  crciife  tljc  ©rtiinarPi  lor  Ijcfl-ail 
Patron  in  hisHot  bc  0  Diituvbcr,  tljo'  toe  lAifflJt  lu  a  Ciuarc  Inipcmi  'uc  aitec  toiiuQ 

i^Are  I,,:-    tOt  tljC  OtljtC*  34  Ip.  6,  1 1,  Ij.  \ptX,  Jpl'UOt.  34  0*  6.  3S. 

fri.it,  but  is 

final  even  to  the  true  r*atron  fo  far  that  he  cannot  impute  Difturbance   to  the  Ordinary  following  that 

Vcrdi£t.  Hob.  5  17.  Elvis  v.  Aivlibp.  of  York  Sc  al.— Watf  Comp.  Inc.  Svo.  419.  cap.  21.  cites  fame  Cafe.', 

WatfComp.  14.  And  if  tIjC  Commidioners  certify  othcrwife  than  is  found  bCfOfC 
Inc  Svo.       l\^^x%  pet  if  t!}C  ©rHinnri'  does  accordini^  to  the  Certificate  \)t  [^  erCtUeO 

dt^s'c^'-^  l).b.  30.  }3er  i^eiutoii  i  Jfor  tljciOiic  10  bctUJceu  tijc  ^^rUnu-rty 
ann  l3atron,  uiijiclj  ujasi  ttje  Certificate  of  t|)C  Cominiffioitcrsi* 

15.   But  if  tlje  HICljt  be  found  lor  the  Patron  upon  this  W  rit,  and  the 
Ordinary  after  admits  the  Clerk  of  the  other  ]|5atl'0n.  It  (1)311  be  at  fjlS 

\^m\,  jfor*  be  map  luelt  enougbaomit  ijim,  iiotuiitbftanmns  tbe 
Conmiiffion,  ann  fihtiinn;  for  tlje  otber*  34i5»6.  n.  b»  lorittecmss 
tbat  It  iss  but  for  bie  better  Information  -,  QBiit  fee  22  d,  6»  3^^  uibfre 
tlje  ©roinarp  aHe5e0a  certain  Certificate  bj?  tbc  Commiliioners  foe 
a  ^^atron,  anti  tbe  plaintiff  in  a  Ciuare  Jmpebit,  before  tbe  Higijr 
trieu  in  it,  tra^erfegi  tbat  tbe  Ccmmiffioncrsj  Din  net  certify  tijc 
Eigljt  for  tbe  otber  isatron,  34  ^  6.  41. 
s.  p  Br.  1 6.  But  uibcn  tbe  i^isbt  m  tbi0  llBrit  iis  foiinn  for  one  patron,  anti 
Q.,are  im-   fjjj  c>rr!inar|?  amnitsi  tbe  Clerk  of  tbe  otber  ipatcon,  if  it  be  afi:cr 

pedit.  P'-^f^-  iound  in  Quare  Impedit,  that  the  Right  appertains  to  the  Patron  for  whom 
^'f  y:,  •  ■  it  was  found  in  the  Jure  Patronatus,  bC  fijaU  be  a  H^lftUrbCr.    34  ip*  6. 

54'h.6.  II  ii.b*bi?prifott» 

;S.  &;5 

H.  6.  i8.  per  Prifot. — And  though  the  Bifhop  in  going  againft  theVerdift  Chances  to  admit  the  Clerk  of 
the  true  P.4tron,  yet  this  will  not  excufe  him  from  Difturbance  in  Quare  Impedit  by  the  Perfon  for 
whom  the  Verdift  was  found  ;  For  it  is  no  Plea  to  fay  tfiat  he  admitted  the  true  Patron's  Clerk.  Watf 
Comp.  Inc.  Svo.  419,  420. cap.  21. 

*  The  Or-        j^.  Otherwife  it  10  tBbCtC  It  flS  found  for  him  who   is  prefented, 

hZdtoad  Ciu^re  tabetber  tbe  €)rmnatp  mai)  fu?Fcr  Lapfe  to  miit  after  it  is 
mitthe     '  fcuim  for  one  in  tbi0  n^rit   It  fecmiEj  tbat  be  cannot ;  Jfor  is  P* 

Clerk  of       6.  19.  bPPnfOtbe  fljalt  not  babe  anp  Lapfe  after  u  is  lound  tor  one  ; 

him  that  is  jfiji;  {jf  ijj  *  (jQim^,  toatimtt  W  Clerli.  2 1  »>  ^-  44,  ^s 

found  Patron 

iS.  If 


Prefentation. 


487 


by  the  Iiquifition  de  Jure  Patronatils,  if  he  prefents  after  the  VerdiH,  whether  he   prcfented    bcfbic  tlic 

Conimiirion  or  not.  Br.  Quarc  Impcdit  pi.  So.  cites  21  H.  8  44  per  Newton,  Pafton,  and  others. 

Watl'.  Conip    Inc.  Svo.  405.  cap.  io. 

18.  3if  itljc  found  in  tljiss  Wnt  for  one  l^atrati,  tl)c  ©cuinarp  10  watr  comp. 
not  Oomio  to  mm  w  ClcrUU)itl)out  a  nch-  Requcit  nianc  by  the  ^"^^^°  'y- 
Clerk,  anti  It  nccas  not  for  m  ]3atron  to  mal%t  a  Mm  Ecqiicft  or " Vi^ 
l^rcfcntation,  34  V*  6. 12.  \pzi  Ciiviani,  s  p.  Br. 

<'^u,ivc  Im- 

pedit.pl  12.  cites  ;;H.  6.  12.  &:;2    ^4  H.  6.  1 1.  &  ;S.  ^-iH.  6.  18. In  fuch  Cafe  the  Ordinary 

is  not  bound  to  admit  fuch  Patron's  Clerk  if  he  does  not  prefent  him,  and  labour  to   have  him  admitted. 
Br  Quare  Impcdit  pi  So.  cites  21  H.  6.  44.  PerNewion,  Pallon,  and  other  Jullices. 

19.  Jf  a  Difturber  prefents  without  any  other,  tIjC  Cl^tfljOp  Htap  \\\-  WatfComp. 

QUire  bp  tl)e  mx\U  34  J3. 6. 40.  '  ^"c.  svo. 

20.  But  If  m  t{jC  faib  Cafe  it  be  found  that  another  Stranger  has  ^^^''^"^^jj^j 
Ri2;ht,  if  this  Stranger  prefents  within  the  6  Months,  tI)C  ©rUinari)  10  S  C  — 

olilmco  to  anniit  (jis  Clerk  ;  'But  if  l)c  nocss  not  prcfcnt  tcitljin  t6c  6  s:  p  Br.  . 
a^onti)^,  tl)cntl)e  £)rDmarp  is  oblnjcQ  to  admit  tijc  ClcrU  of  tl)c  ^v  ^"^"T  ^"'^" 

mU-tlCr*  34  iP*  6.  40.  ckeslVH.^. 


i; 


&: 


54H.  6.  II.  3S.  &  ;5H.  6.  18.  pcrPrifot. 


(P.  d.  z)     Ke  Admhtas.     Lies  for  n'hom,  when,  and  in 

what  Caies. 

HERE   one  hath  an  yfrJ/ci/;  of  Darrein  Prefentment,   or  of -p]^^  (-^1^1.^^. 

Quare  Impedit,  depending  in  the  Common  Pleas  and  he  fuppofes  to  Hop 
that  the  BilKop  will  admit  the  Clerk  of  the  Defendant  pendant  the  Plea  Stranger^ 
betwixt  themi  He  may  fuea  Ne  admittas,  directed  to  the  Bilhop.  F.N.B.  t™"?  P''-"- 

11  \^  )  Pendente 

Bre'^i  is,  af;er  the  Quare  Impedit  is  depending,  to  fae  zKe  ^'Idmittas  to  the  Bifhop,  and  if  tlic  Hifhop 
then  admits  the  Clerk  of  any  other  pending  that  Suit,  and  the  Piaintiii  recovers,  he  fh  ill  liave  a  i^iare 
bhiwihr/izit,  and  tiiercby  remove  any  that  comes  in  hant^ing  the  Writ  by  whatfoever  Title  he  comes  in, 
and  fhall  force  him,  who  hath  Right,  to  recover  by  Quar;  Impcdit  ;  Hut  it  he  fues  not  fuch  Writ,  if 
t.hen  the  [ncrimhr>,t  of  .i  Slmnger  j1:ould  ccnie  in  by  ,eooii  Title  P(r:bi:tc  Brevi,  he  fhall  bar  him  in  Si  iie  F.iiias- 
and  fli.ill  Hold  him  our.  Per  Popliam  Ch.  J.  Cro.  J.  93.  I^Iich.  3  Jac.  B.  R.  in  the  Cafe  of  Lancaller  v. 
Lowe.  — V\  atf  Comp.  Inc.  Svo.   42S,  429.  tap.  22. 

2.  This  Writ  of  Ne  admittas  lieth/w/Z-c  Plaintifm  a  Quare  Impedit.  s  p.  B.in-.nt 

F.  N.  B.   37.  (f)  ti^^tke/fnt 

•^  '  '  of  ^are  Im- 

tfiUt  be  reiKrned,  and  not  Mefne  between  the  Tefte  and  the  Return  in  Bank  ;  For  no  Plea  !■;   pending. 

Br.  Quare  Impedit,  pi.  124.  cites  2  E.  4.  iif  Per  Moile.  J. Watf  Comp.  Inc.  Svo.  42S.  cap.  2S. 

cites  S.  C. 

It  feemcth  that  the  Defendant  mny  futt  his  JFrit  as  well  as  the  Plaintift,  if  the  Defendant  do  fuppole 
that  the  Bifhop  will  admit  the  Clerk  of  the  PlaintitF  pend.int  the  Writ.  F.  N.  B.  37.  (H) 

3.  Ne  Admittas  ought  to  hefned  ivithin  the  6  Months  after  the  Avoi-  WatfComp, 
dance ;    for  after  the  6  Months  he  fhall  not  have  this  Writ,  becaufe  then  '^"J;-  ^^°\^ 
the  Billiop  may  prefent  tor  Lapfe;  And  therefore   it  is  in  vain  then  for  cites  "c.*^  ' 
to  fue  this  Writ,  becaufe  the  Title  to  prefent  is  then  devolved  unto  the  Sc  RcgiiK 
Eilhop;  Bnt^\\Q  King  may  fticthis  Writ  after  the  6  Months,  where  he  hath  Orig."3i.b. 
a  Quare  Impedit  depending,  or  Alhze  de  Darrein  Prciencment,  becauie 

that  Nullum  occurrit  Regii  But  there  is  a  Rule  in  the  Regilter,  thus, 
Notandum  eit,  quando  Rex  pra;fentat  ut  in  Jure  CoroniE,  tunc  incunit 
ei  Tempus.    But  this  is  not  Law  at  this  Day.  F.  X.  B.  37  (F) 

4.  Ne 


Kep.  5').  o 


488  Prefentation. 

*S.P.Watr.      4.  Ne  Admittiis  does  not  lie,  \i th&  Plea  h&  tiot  dcptnditig  imhe King's 

Comf.  Inc.    (2gi^^.f  \^y  Q^Liare  Impedic,  or  Allife  of  Darrein  Prefentinent ;   And  there- 

clp  22  cites  f°''^  there  is  a  *  W  rit  in  the  Regi Iter  di retted  into  the  Chief  [ufliceot  the 

{,.  C.  "        Common  Pleas,  to  certify  the  King  in  the  Chancery,   if  there   be  any 

Picas  depending  belbre  him  and  his  Companions  bv 'N\'rit  betwixt  fuch 

and  fuch  Perlons  &c.  and  thereioie  it  feemeth  the  VVrit  of  Nv  Jidmittas 

fliall  «o;  be  granted  before  the  King  he  certijied  in  the  Chancery^  that  fuch 

Picas  of  ^nave  Impedtt  or  Darrein  Prtftntment  be  there  depending  in   the 

Comnicn  Pleas  j  £//?yet  the  Writ  of  Ne  Admirtas  ;;w_j'  be  granted  out  of 

the  Chancery  dire^ed  unto  the  Bijhop,  that  he  do  not  admit  ^c.  before  the 

King  he  certified  tn  the  Chancery ^   that  fudi  Plea   of  Quare   Impedit,   or 

Darrein  Prelcntment  is  depending  in  the   Common   Pleas,  and 'then  the 

Party  grieved  may  require  the  Ch.  J.  to  certify  the  King  m  his  Chancery, 

that  no  fuch  Plea  is  depending  there,  and  thereupon   the  Party  grie\ed 

Ihall  have  fuch  Writ.  F.  N.  B.  37  (H) 

*  VVi-it  to 

the  B'.Tiop  ■ 

to  acinv.t  a 

judicSla.    (Q:  d)    *  nnh  to  the  B'lfiop.      Jj  -xhat  Time  it  ftall 

tirat.  12 
Kep.  5'). 
cites  Dyer. 

vv  rrcomr- 1  Tji^  jj  (^w^xt  JmpcHit  naainff  tljcfiJatron  ann  incumbent,  if  a 

s'-i   ca°p  iJ^l'J^  ^^  t!)C  'BlfljOP  be  adjudged   againll  the  Incumbent  upon  his 

a-cit«'      Plea,  Pit  UBrit  Ihall  not  ilfue  till  the  Plea  between  the  Plaintiff  and  Pa- 
'  s.  C  thht      tron  be" determined.     25  (£.  3.  34.  ti,  aOjUtHJCU  tlUtCe. 

tlie  Plaintiff 

fna'l  not  have  Writ  to  the  Bifliop  until  and  unlefs  it  be  alfo  adjudged  agiinft  the  Patron 

\Vatf  Corrp.  2*  %\  CUtatC  ImpeUlt  againft  two,  if  Judgment  tZ  mbCll  againft 
can  2"-°  ciV-s  ^^^  °"'^  "P""  ^'■'-'"'^  Dedire,  UO  WUt  tO  tljC  'BlfijOp  fijilfl  l)C  IjrantCO 
S.  c.— if^~  aijaiml  tljC  Otijer,  till  tljC  Pica  of  the  other  Oc  determined  ;  tOr  IjC 

two  Defcn-  map  forccioic  ijim  of  tije  Wxiu    17  ^«  3*  js. 

dants  plead 

fner.^l  Bars  in  Quare  Impe  lit,  and  the  one  is  found  againft  the  Plaintiff,  and  the  other  with  the  Plain- 
tiff, the  Plaintiftfliall  not  have  any  Writ  to  the  Bifhop.  Tho'  the  Plea  of  onr  be  tried  fiifl:,  and  found 
forthc  Plaintitf,  no  VVrit  to  the  Bifhop  fliall  be  awarded  till  after  thu  otlur  Ifl'i •  be  tried.  Jenk  9;. 
pl.  S5 \\'atl  Comp  Inc.  Svo.  525.  cap. 27.  cites  S.C. 

3».  3!^  tlj:  King  recovers  (n  dUate  IlntpCtitt  againft  J.  S.  by  Nient 
Dedire,  having  another  Q^uare  Impedit  pending  at  the  fame  Time  againlt 

the  laid  J.  s.  and  VV.  N.  tjc  fljall  {ja\je  XBut  to  tl)c  'Bifijop  immcbiatc- 
\v,  agamrt  %  %.  upon  tljc  Eccoiierp  before  t!3C  i^Iea  in  t()e  otljec 
„,  -„     !©ntoeternitncli,  becaufctOore  are  leverai  Originals.    i-j€.3*s'^> 

I  c  Svo  -"2^  4*  But  if  tIjC  HinO;  reCO\3er0  againft  an  Incumbent  of  a  Provendary, 
cap.  Incites  becaufe  he  claims  of  the  Collation  of  the  Bilhop  of  the  Dioccis,  pct  iftDS 
S  .C.  '         ISinj  has  another  Quare  Impedit  againft  the  Bilhop  alone  of  tne  fimc 

Provendary,  un  i©nt  to  tlje  iSifliop  fljall  bc  granteo  aJiainS  tin  liv 
cumbent  tiH  tije  l^Iea  be  cetcrmineti  betioicn  bin?  aiiu  t'oc  OSifljop, 

tljD'  tijOfe  arc  feveral  Originals.     25  (£.  3.  47*  aOjUUSetl. 

5.  Before  Writ  i/J'ues  to  the  Bt(hop,  Writ  jh all  be  awarded  to  the  Bifhop  to 
inquire  if  the  Church  he  -void^  and  alfo  of  the  Value  of  the  Churchy  and  if  the 
6  Adonths  were  pafs'd,  or  not.     Br.  Quare  Impedit,  pl.  49.  cites  7  H.  4. 

34-  36. 
Quare  Impc-      6.  In  Quare  Impedit  againfl  z^Procefs  continued  to  the  Diflrcfs  at  which 
dit  /r?.i/)./ j^,  -Q.^y  jj-^g  ^ffg  appeared y  and  the  other  made  Default,  and  Writ  to  the  Bifhop 
\emeZuy    '^^'''^  awarded  againft  the  one,  and  the  other  compeli'd  to  anf  ver  by  the 
DefMih         Opinion  of  the  Court.     Br.  Quare  Impedit,  pl.  89.  cites  14  H.  7.  19. 

'ae^fiii.jl  the 

one  ;  and  lufijnicnt  v.-a,s  that  he  have  Writ  to  the  Bifhop  and  Damages  for  half  a  Year,  Et  cefTet  Exccu- 

tlo  till  it  "be  tried  againft  tiie  other  Defendant ;  for  oth-.rwifc  this  Executio  1  agiinlt  the  one  alone  .li.ill 


Prefentation. 


489 


-.ibate  the  Writ  againft  the  others  ;  for  he  cannot  recover  the  Prefentation  agaiiift  the  others,  -vvlicn  he 
has  the  Prefentation  by  the  firft  Jud<;ment ;  As  in  Trefpal'';  aj^ainft  two,  ana  it  is  found  againft  the  one, 
and  he  takes  Execution  aeainll  him,  the  Writ  fliall  ahatc  againft  the  other.  Br.  Quare  Impcdit,  pi.  1 ;; 
cites  ;o  E.  4.  i .  and  10  £.  4.  1 1 .  13. 

7.  A  Manfited  divers  ^uare  hupcdits  sgainlt  the  Bifliop,  and  he  was  ^  P-  Watf. 
Noii-ftiit  III  all  but  one  VV^ric  j  the  Defendant  had  nnc  a  Writ  to  the  Hilhop  svTszo"'^' 
until  that  Writ  was  determined.     F.  N.  B,  38.  (^R)  cap  2-.  cites 

1 2  K  2 
Brief  al  Evcll;ue  16. 

8.  A.  recover'd  in  a  Quare  Impedit  againfl  B.  and  C.  and  had  Ji^dg-  Watf.  Comp. 
ment  to  have  a  W^rit  to  the  Bifliop.  And  a  VN^rit  uf  Enquiry  of  Damages  "^'  '^^°_  ^. 
illued.  Now  the  Detendants  brought  Error.  And  by  tlie  Court  that  ^.„g^  ^' q  '' 
\\'rit  lliall  abate,  bccaufe  judgment  is  not  given  upon  the  intire  Record, 

and  chat  a  Writ  to  the  Bilhop  Ihall  not  illuc  ////  the  IVrit  of  Enquiry  of  the 
Value  be  return^ d^  unlefs  the  Plaintiti'releafe  the  Damages  ^  And  that  by 
the  Court  and  all  the  Clerks.  Noy  66,  Mich.  59.  40  Eliz.  C,  B.  The 
Billiop  of  Glouceller  &  al.  v.  Veal. 


(R.  d)    Writ  to  the  Bilhop.     irhat  Court  may  tTJoard  it. 

U  nrJ3€I^  lUl)0  hold  Plea  in  a  Franchife,  caUHOt  aiuarU  a  WxH  tO 

X  'tl)C  15ifljop.    II  0.6.  3. 

2.  In  N\  ales  fl  mVX  tilimOt  iK  iimamCU  to  tljCO^ifljOp  by  thejullices  ^  Writ  ws 
there.      1 1  i^.  6*  3*  awarded  to 

the  Arch- 
bifl  op  of  Canterbury,  bccaufe  the  Bifhop  of  St.  Davids  wns  Party  ;  and  it  was  adigncd  for  Error  for 
that  the  juftices  of  the  Grand  Sejfiotis  have  no  Power  to  write  to  him,  they  having  no  Power  to  punifli 
hini  it'  Ik-  does  not  obey.  And  the  Court  dcubtcd  of  that  Poirt;  but  it  leenis  prima  facie,  tiiat  tlicy 
veil  may  write  to  him  ;  for  it  »j  rciv  n  Court  oj  tl  e  l\h,gs,  and  a  (4_u:u-e  non  Adniifit  lies,  if  he  does  not 
ndniit.  But  uhen  thev  were  the  Marches  in  Wales,  they  had  no  (uch  Power  ;  and  for  that  Reafon  a 
Ouarc  Impcdit  did  lie  in  the  adjoining  (bounties,  but  not  ib  at  this  D.iy.    But  they  would  advife.     Cro. 

C  ^42.   Cort  V.  Bp  of  St.  David's,  (^wen  and  Pritchard.- Watf.  Comp.  Inc    Svo.  5^9   cap.  2S.  citei 

S,  C. To.  ;52.  S.  C.  judgment  was  affirm'd   Per  tot.  Cur.— Sid.  92.  at  the  End  of  Cllnui's  Calc,  the 

Keporter  fays  it  fcems  that  the  Grand  SelTions  of  Nortii  Wales  cannot  write  to  the  Bifliop  ;  and  that  this 
is  the  Realbn  that  (^arc  I m; edit  docs  not  lie  there. 


as 


(S.  d)     Writ  to  the  Bifhop.     jrbopall  have  it. 

U  in  QUaVC  JnipCUit  the  Defendant  fljall  IjillJC  llStit  tO  tljC^injOp,  ro!,„^if ' 
A  if  it  be  lound  lor  him  ;  {Qt  \)Z  ij3  ^CtOC  iW  UlCU  il9  t|)C  OtljCt.     9  S^o.  5,5.  * 
0.  6.  31.  i8(£.  3.  ij.b.  «p.  26. 

2.  Jn  a  dUarCUmpCOit,  if  t!)C  Defendant  makes  Title  to  himfelf  and  Watf  Comp. 
a  Stranger  tO  tijC  CljUtCf),  autl  ilftCt  tl)C  PLintiHis  Nonfuited,  pct  tljC  ^"=^^°-  5.^^ 

5jBrit  to  tljc  'Bifliop  fljall  be  aiuavDcD  onlj?  foe  tljcDefcnnant,  ano  not  Tc~— 

for  tIjC  S^tVanacr  alfO,  bccaufe  ijC  \%  not  uam'd  m  tUc  W  rit.     1 3  C*  3-  S  P  F  N.  B. 

■^riCf  al  C\)Cl(lUC  20.    25^  ;9    (A)  and 

there  in  the 
new  Notes  (a)  cites  S.  C.     And  fays.  See  alfo  for  this  1 1  H  (5  R.  where  A.  B.  and  C.  Parceners  brought 
a  Quare  Impcdit  agamft  C.  whofcver'd,  and  afterwards  A.  and  B    were  Nonfuited ;  C.  fliall  not  have  .i 
Writ  to  the  Bifhop  without  Title  fhewn,  and  yet  on  the  Title  fliewii  the  Title  would  appear  for  the 
Plaintiff.    Sec  15  E.  5.  pi.  20&2J. 

3.  Baron  .■»;;<•/  Verne  hroiight  ^/lare  Impedit^  and  the  Fane  died  pending 
the  lint,  vcc  the  Writ  rcmaincti  good,  and   the  Baron  l^id  \\'rit  to  the 

6  H  Bilhop 


^^o  Prcfentation. 


BilLop  as  Tenant  ly  the  Ciirtefy.     Br.  Quare  Impedit,  pi.  67.  cites  38  E. 

3.  35. 
Br.  Biicf,         ^   'j^i^e  hicwinlan  fliall  not  have  a  "V^^rit  to  the  Bifliop  where  his  Tkct. 
^  H  6  -4""  is /owwc^lor  hiin,  \it\\e  Pcitrm  makes  DeJ  a  tilt,  and  will  not  plead.     Br. 
S.C    '        Encumbentj  pi.  9.  cites  7  H.  6.  36. 


(T.  d)  Writ  to  the  Blfliop  for  a  third  Ferfon  not  Party. 
Tn  n.dHn  Cnjes  the  Writ  fhall  hz  awarded  for  a  third 
Perjon  not  Party  to  the  Writ. 

WatfComp.  1. 1  0,  an  AfTife  of  Darrein  Prefentment  bCtUJCCIt  tlUO  ^Clt,  If  [it  be] 

Inc.  svo.  I  j-jjjjj,jj  |.},gj.  iicitijcr  tl)c  one  nor  tlje  otijcc  Ijnsi  i\in:l)t  to  prefent 
l:_sV'''  lit5t  a  ^n  l^ctfon  not  \mt\>  to  tijc  !©rit,  tlje  Wxit  fljal!  be  auiatDCD 
F  N.  b!  5  i .  fat  Ijini    17^*3-23.  JtBiib})  fain  tijnt  it  ijao  been  fo  tecu. 

(F)  in  tlie 

Kote  in  the  Marg,  cites  ;  E.  2.  Dai-rein  Prefentment  z6  E.  5.  41  And  adds,  That  thcrefoic  one  can- 
not make  Title  to'a  Prefentment  in  Time  of  War. F.  N.  B.  59  (C)  Becaufe  the  Writ  is  Ouis  Advoca- 

tioni  ultimo  prx-fentavit  pcrfonam  &c.  And  in  the  new  Notes  there  (d' fay.s,  See  Brafton  148.  accord- 
ingly, where  the  Affife  is  ;,!^c?;  Per  ?;;oi»wz  ^f//?/4,  and  wi'f  Per  modum  Jurati.  And  liiys,  Sec  alfo  1 5  E 
5.  Biev.  alEvcfque  20   by  Aldred,   and  17  £.  3.  22.  by  Wilby. 


(U.  d)     In   what   Cafes  the  Khia;   ftall  have  a  Writ    to 
the  Eifliop,   \tho  he  be]   Kot  ^Party  to   the  Writ,    [ 

tho'   the  Jjjiie  be  mt  jomdjor  htm.  ] 


or 


watf.comp  I.  iJ!5£iuare3lnipetJit  by  tljc  Itino:,  iftlje  inuebe,  whether  the 

Inc.  Svo.  ^  Jl^  ]^ing  has  all  the  Advowlon  Ot  nOt,  anO  tljC  JUtP  tinds,  That  he 
ates  "c^—  ^^s  *^'"^^'  '^  3^  ^i-"^^-,  but  that  now  it  is  his  Turn  to  prelent  ;  tljO'  tljC  IfUte 

Hob.iis,ii9.ts  foun'o  againft  tbc  i^inn;,  pet  becnure  it  aypcar0  tijat  tl)c  i^In^;  ija^ 
pi  149-  s.  f ;  citic,  tljc  t©rit  fljall  be  aiuaroen  for  Ijmt*  SJ^ictj.  h  2a*  05,  aOjUQu'D 
repcrts,  that jj^^-j^jp,^  jjjj.  j^",./^  ^-jj^j,  j-jjj.  y^,//;^/) o/  Rcchc/hr.    ipobarts  iAepotts  165. 

ZJ "t7at    ©««'C  cafe,  Jf  or  tljis  Ci5atter,  UJfjicIj  ig  fount!,  10  not  out  of  x\)t  M\z. 

taeAdvow- 

fon  in  Fee  was  prefentable  by  the  King  ly  2  T'lirtu  coitieuats,  and  by  tie  Eipci  for  the  z.d  Turn ;  and  that 
the  Kinc's  fiirt  Turn  was  fttisfy'd  by  prefenting  his  Clerk,  now  dead,  and  that  tl.is  is  the  hiti^s  zd  T'urK, 
and  concluded.  If  upon  tlie  wlx  Ic  Matter  the  Court  doth  judge,  Thar  the  King  was  feiftd  of  the  Ad- 
vowfon  aforefaid,  ut  de  uno  Grofio  per  fe  ut  de  feodo  &  Jure,  then  the  Jury  found  fo  ;  if  not,  then 
contrary.  And  tjio'  this  Vcrdift  did  not  fird  the  Iflue  for  the  King,  (for  the  lllue  was  to  be  underftood 
of  the  whole  Advowfon)  yet  becaufe  it  did  clearly  appear  totlie  Court  by  the  Verdicl,  and  that  not  out 
of  the  IfTue,  that  this  Prefentation  did  of  Right  belong  to  the  King,  therefore  the  Court  did  award  a 
"VS'rit  to  the  Kifhop  for  the  King,  and  to  remove  the  Clerk  of  the  Bifliop  ;  and  to  this  alio  tlic  p]i(]iop 
alTcntcd,  which  was  lb  enter'd  in  the  Record  of  the  Judgment.     Brownl.  164.  S  C. 

Watf.Ccmp.  2.  Jn  Square  Jmpetlit  bv  the  Unlverlity  upon  the  Statute,  bCCiltlfC 
^Jf:%%  3!,S.  inaSl  a  Reculant,  if  Defendant  pleads  Ut  ISat,  That  f.  S.  was 
cap 'zV  cites  convicted  fOt  S  EeCUfant,  and  that  the  Manor,  to  which  tijtS  ClG^JOlDfaU 
s.  C.  to  appcnOant,  was  ieifed  for  the  King,  for  !)(0  [3art  fOt  tljC  SXCilMCV, 

Mo  St2        jihu  fitter  tijC  King  granted  to  him  the  Manor  with  the  Apparrenunces 

Tnn  i4jac.^^  iipou  iul)tcl)  ti)z  iinllierritP  corner  ano  ncknoiulcgcs  tiic  l^-lea  to 
K  >tre  <  f  the  U  ttue.  Jn  tDis  Cafc  a  iBrit^fljali  be  ausarccQ  to  tije  isuijcp  for  m 
univerfitv  i^uht,  bcciiufc  notljmn;  palfcn  out  of  tijc  Imhq  bj)  tIjc  C^nam  mtl)^ 
"f?""-  ,  nauiins  tt)e  ^B^oiufon,  anu  fo  tbc  ilssbt  rcniaino  in  tlje ams-  "^i^^- 

brldrc  v   the  ,  ,    ■?.-. 


Prefentation.  49 1 


^^  3a,  15.  ^nmwo,  Cljc  itmuerfitp  of  Cambridge  nnn  rakejkfs  Bifliop  of 
Cafe,   ipouart'0  Ucportss  169*  g)»c.  Norw.ci.. 

ror  vvhcie 
the  Title  to  the  Kiip;  appears  upon  the  Record,  there  the  Court  will  award  a  Writ  to  the  Bifliop  for  ilic 
King;  but  not  wlicre  the  Title  to  the  King  appears  upm  Eiidenu. 

3.  It'  an  Jbbot  briiry^s  Affife  of  Darrein  Prefentmerit,  and  it  is  found  for  Sj  inQuire 

the  Abbot,  and  in  inquiring  oi  the  CoUulion  the  Collujion  is  foiuui^  the  ^'"pedir  i,e- 

King  upon  this  Matter  Ihall  have  Writ  to  the  Bilhop  without  other  Pre-  ''Zn'l^el'Ls 

fentment.     21  E.  4.  3.  b.  pi.  5.     Per  Cliock.  "xrnaSZll 

by  tlieir 
Title,  that  the  King  has  Ripht  to  prefent,  he  fhall  have  Wl'it  to  the  Bifhop  vathout  other  Matter  flijwn. 
21  £.4.  3.  b.  pi.  5.  Per  Chock. 

4.  In  a.^{:rre  Impciiit  *  betwixt  2  Strangers^  if  there  doth   appear   to  IbiJ.  in  th: 
the  Court  a  Title  tor  the  King,  they  Ihall  award  a  V\'iit  unto  tdeBilhop  "'^wKotcs 
lor  the  King,     f  F.  N.  B.  38.  (E)  "^ii^^ 

21  E.  4  q  b. 
Per  Choke.  \  1 1  H  4.  ti.  Per  Hankf.  And  fo  it  fliall  ilTue  if  it  be  found  .igainft  the  King  in  a  Qinrc 
Impedit  ;  and  yet  it  the  Right  appears  for  the  King  on  a  Special  Verditt,  lie  ihall  not  have  a  \A'ru  to 
the  Bifliop.     Kex  verfus  Epifc.  Rofi'en.    See  4 Eli,-..  245.     i<5H.  7.  12.     F.  Brief  al  Eve(i]uc,  1:;.   Bro. 

S6.     44  E  3.  10.     Stamf  95.  a. t  Br.  Brief  al  £vefi]ue,  pi.  S.  cites  .S.C.  &  P.   Per  Hank,  ani 

iiill.  But  Culpeper  Contra.  And  Brooke  makes  a  Quire, 

*  S  C.  cited  by  Walmfley.  Le.  63,  64,  pi. 84.  in  Cafe  of  15l'l3rrlf}>  v.  Cornirf.ll  Mich.  29  FI. 
and  fuid.  That  the  Judges  fliall  in  no  Cale  refpeCt  the  Title  of  the  King  being  a  Stranj^er  to  the  Writ 
but  where  a  Title  appears  for  him  upon  the  ||  Pleading  or  otherwife  within  theKecord,  and  lb  is  1 1  H  4. 
214.  [7 1 .  b]  by  Harkford.  But  if  a  clear  T  itle  for  the  King  be  confcfs'd  by  the  Parties  u  jon  Picadin"-,  a 
A'Vritto  the  Bifliop  fhall  ilfue  for  the  King.  So  if  fuch  Matter  appea;s  in  Evid'.nce&c.  the  Land  isfeilable 
into  the  Hands  of  the  King. —  ||  S  P.  per  Dodcridge  J.  Mo.  901.  cites  i^H.d.  54.  16H  -.  i'. 
11  H.  4.  71.  b.  p].7.  F.  N.  B.  58.  (E) 

Hobart  Ch.J.  laid,  That  tl^e  Kirg  has  a  Prerogative,  that  where  clear  Title  appears  for  him,  Writ  to 
the  Bifhop  fliall  be  awarded  for  the  Ki'g  But  he  faid,  This  is  to  hi  intended  where  his  Title  appear.^, 
by  the  Confelfion  of  the  Parties,  or  by  Title  without  Difficulty  or  Queltion  ;  for  upon  Nihil  dicit  V\'i  it 
fliall  not  ifTue  for  the  Kin;-;,  nor  upon  Title  appearing  by  Eviuence  tothe  Jury,  as  was  held  in  the  C.iii; 
of  theulniUtVflfJ'Of  tainliniUji:  v.  Olahjralie  ami  j0a;LiC}>.  But  if  it  appears  upon  the  Record  of 
the  Pleading,  or  by  the  Contelfion  of  the  Parties,  the  Writ  fliall  ili'ue  for  the  King;  otherwife,  no. 
Mo.  904.  in  theCaie  of  Colt  and  Glover  v.  the  Billiop  of  Coventry  a:-,d  [...icchfield. 

\  h.  C.  &  P.  Arg.  and  cites  21  E.  3.  50.  and  12  H.  7.  12.  But  where  the  Title  appearing  wa^  only 
Matter  of  Fadt  fiiqgelted  by  Plea  of  the  Attorney-General  in  a  Writ  of  Error  brought  ot  a'jadgrr.cnr, 
the  Court  held,  Tnat  the  Plea  ought  to"  be  rcjefted  for  that  Reafon  of  its  being  Matter  <(f  Fai^t  oniv,  and 
efpecially  in  this  Writ  of  Error,  the  Judgment  being  given  in  C  B.  and  Execution  fjr  the  Dama"'es  b.-- 
ing  given  in  the  Cafe,  and  increas'd  by  the  Statute  of  3  H.  7.  which  is  not  to  be  cflopped,  orthe  Parties 
to  be  dekiv'd  by  ilich  bare  Surmifes,  not  bei-^g  grounded  upon  any  Matter  of  ifccord.  /\nd  after  further 
Argument  by  C^ounlcl  all  the  Court  Seriatim  deiiver'd  their  Opinions,  That  tlie  Pleading  i-  merelvvoid, 
it  being  upon  a  Surmi!e,  and  without  any  Record  fhcvvn.  And  that  there  cuxht  to  be  ,1  clear  Rinbt  /iiid 
7itle  afte.xr  (or  the  Khm,  ai:d  ccrifcjYd  Ly  the  Parties  in  Ptcadnig  or  ctler'mfe  julty  nppaient  :  For  if  not,  tliu 
Court  ought  not  to  award  a  Writ  Ex  Officio  for  the  King.     Cro.  C.  192.  pi.  4.   Mich.    16  Car.    B.  R. 

Refolved  by  all  the  Jnl'icesof  B.K.  in  the  Cafe  of  Y.ites  v.  Sir  John  Dryden  &  al. The  Ca'e  was 

this  ;  A  Quare  Inipcdit  was  brought  by  A.  B.  and  C.  againft  Y.  and  the  BifliOp  of  P.  i  1  whirli  Y.  tlie 
hctimheht  pU.ided,  That  ie  ims  P.irfcn  hnp.xrjhice  of  the  Prcfei^twerit  of  the  hiiiv,  to  whom  he  derived  i 
Title'  as  ieiled  in  Fee  of  an  Advowfon  in  Grols.  Upon  Jfl'ue  joia'd,  a  h'erdiU  aias  joumi  jor  tie  PLxinli£'i, 
zi-hich  likeiiife  iomid  the  fe-veral  Points  of  the  IVrit.  The  Plaintife  \ydd.  Jtidsnnnt  to  recover,  H'^d  a  lint 
awarded  to  the  Bijhcp  to  remove  the  Incumbent,  and  admit  the  Clerk  of  the  Pl.iintif^s ;  ar:d  likenvife  fudir. 
7?ie?;/ o/'Z.><?»'.T?f  J  for  Half  a  Year  amounting  to  lopl.  The  Dejendant  braiTht  a  Writ  of  Error;  and 
pending  that  \\\-'n,  the  Ling  brought  a  Writ  of  Right  of  Jdvoiujov;  And  by  Motion  to  the  Court,  the 
Proceedings  upon  the  H  rit  of  Error  merefiay'd  'till  the  If^rit  of  Right  jhould  b-  t;i?d.  Thereupon  a  Special 
J'erdiii  n.ias  fund  contrary  to  the  Verdiii  in  the  ^lare  Impsr.it.  After  this  V^erciitt  itie  of  the  Tenants  diid. 
The  Countel  for  the  Kirg  inlllted  llrongly,  That  the  Verdi:t  in  the  Writ  of  Righrof  Advowfon  (bein'» 
a  Writ  of  the  highcft  Nature)  fhould  control  the  Verdict  in  the  Qu.irc  Impedit ;  and  the  Yerdicl  iii 
(^are  Impedit  fourd,  That  James  Ellis,  who  was  alkg'd  by  the  Defendant  in  the  <)ti.ire  laipcdi:  to  have 
been  admitted,  iaftituted  and  inducted  Ad  Ecclefiam  PrEdictam  ad  Pri:rcntat;oncm  dicti  r.uperRc-in.T: 
Elizabeths  modo  &  Forma  prout  the  Defendant  had  alleg'd,  was  not  fo  admitted  &j,  and  the  Sp.cial 
Verdict  in  the  VN'rit  of  Right  found.  That  the  faid  James  Ellis  was  (b  admitted  &c.  ad  Ecclefiam  Prx- 
dictam  ex  Pra.fentatione  dictse  nuper  Reginoc,  which  being  a  more  high  Action,  and  exprellv  contr.irv 
to  the  former  Verdiit  in  the  Quare  Impedit,  dclfroys  the  Plai.ui.d 's  'i'ltle  ;  for  the  Qiieen  had  gairej 
Right  againfl  all  by  that  Prefentation,  but  him  who  had  the  very  Right  ;  and  tho*  the  l.ilf  Jury  h.id 
found.  That  the  C-ueen  had  Minus  jus  haber.di  Pra;le:itationem,  yet  forafmuch  as  t!ie  O'leen  prefenrei 
fhe  had  gained  the  Poflcffion  ;  and  then  had  Maps  jus  than  he  who  h.id  not  any  fitle  ;  aid  it  appe.irs 
not  that  the  Plaintiffs  have  any  Title,  and  therefore  pray'd  a  Writ  to  the  bilTiop.  The  Court  held. 
That  the  Verdict  in  the  Writ  of  Right  being  but  a  Special  \'crdict  it  doe.i  not  appe.u-  (if  the  Writ  had 
not  .ib.ited  by  Death)  whether  Judgment  fhou'd  have  been  for  the  King  cr  for  the-  I)efsut.int<,  as  this 
Ca'.e  is,  Aneino  clear  Title  app-caVs;  for  by  tlx- De.ilh  of  ui.eof  Cm  Tenants  ilu-  W  iit  of  Kigh:  abated, 

ui.d 


Prefentation. 


49^^ 

ard  rhc  2d  Vercfict  rot  in  Foixe  ;  And  that  there  is  no  fuch  Gjntraricty  appears  by  t!ie  Verdict ;  for  the 
2d  Verdict,  if  it  liad  been  in  Force,  is  no  conchiding  Record,  but  only  an  Evidence,  which  may  well 
be  contradicted  Fiut  they  all  relblv'd,  That  tlio' the  Verdict  liad  been  in  force,  and  had  been  to  the 
contrary,  yet  bcinr;  in  this  Court  bv  Writ  of  Error,  which  was  only  to  affirm  or  rcverfe  tlie  Judgment 
in  C  B!  they  would  affirm  the  fudgment,  and  that  there  was  not  any  Error  tlierein  ;  which  they  did, 
and  awarded'  a  Writ  to  the  BiiTiop.  Cro.  C.  5S5.  Trin.  i6  Car.  Dryden  &  al.  v.  Yates  &  al.  And 
Ibid.  5S9.  Mich.  16  Car.  B  R.  Yates  v.  Dryden  &  al. 

5.  In  a  Quare  Impedit  the  IfTue  was,  If  the  Advowfon  was  appendant 
to  the  Manor  ot'  D.  or  in  Grofs ;  and  the  Jury  found, That  it  was  append- 
ant ;  and  further  Ibund,  That  the  Queen  had  Right  and  Title  to  prcfent, 
tor  iV.e  had  prefented  at  the  two  lalt  Avoidances.  And  Per  Andcrfbn  and 
Periam  f.  It  it  appears  unto  the  Court  upon  the  Pleading^  that  the  King  had 
Title  to prefent,  the  Court  Ihall  award  a  W^rit  to  the  Bilhop  lor  the  King ; 
but  here  appeareth  no  Title  for  the  Queen  upon  the  Pleading,  but  only 
upon  the  Vcviiid^  fo  as  the  one  Part  or  the  other  may  anlWer  to  it ;  And 
becaufe  the  Jury  tbund  for  the  Plaintiff,  the  Title  found  for  the  Queen 
fhall  not  be  refpettcd,  but  as  meerNugation  and  Surplufage ;  lor  the  fame 
was  out  of  their  Iliue  and  their  Charge  ;  and  it  is  no  more  than  if  one 
comes  into  the  Court,  and  informs  us  of  any  Title  for  the  Queen,  there 
the  Court  ought  not  to  regard  it.  i  Le.  323.  pi.  455-  Trin.  31  Eliz.  C. 
B.  Norwood  V.  Dennis. 

6.  If  in  Quare  Impedit  by  the  King  the  King  and  Party  are  at  IfTue, 
which  is  found  agaUifi  the  King^  and  T^itk  appears  for  the  King  by  Nietit 
dedire  of  'the  Party,  yet  the  Court  fliall  not  adjudge  for  the  King.  Other- 
wife  it  is  where  r^t-  Party  confejleth  the  King's  Title.  Cro.  J.  216.  Hill. 
6  Jac.  B.  R.  The  3d  Refolution  in  the  Cafe  of  Cumber  v.  the  Bilhop 
ot  Chichelter  and  Green. 


See(Y.d)    (X.  d)     Wilt    to  the   Bldiop   fw/dmt  Titk.     In  whar 

Cafes. 


S.  p.  Br. 
Brief  al  E- 


.  Ti!3a  ClUare  a^mpCHit,  if  tljC  1©r(t   abates  bv  Pleading  oF  -Mif- 
,  ■*■  nolmer  of  the  Plaintiff,  tl)C  DetCnOant  ^^W  hOt  IjA^C  an?  l©rlt 

r6.dt«   ■    t0tljca3ifl)0p.     ill).  6.  IS. 

Watf.  Comp.  Inc  Svo.  522   cap  ::.  citesS.C. S.  P.  ;  Bcp.  2-.b.  cites  F.N.  B.  58.  (M) 

S  P.  Br.  2.  g)a  if  Defendant  pleads  Mifnofmer  of  himfelf  \}Z  fljall  UOt  Ija^C 

Sl^ue!  pf  ""I'  «^rit  to  tlje  15tfl)0p.    3 1  0.  6.  15. 

26.  citesS.C.  — F.N.B.  3S.  (M) S  P.  Watf.  Comp,  Inc.  8vo.  522.  cap.  27.  cites  S.C. 

I  P  Br  3.  g>o  (f  tIjC  t©rit  abates  for  Infufficiency^  t!jC  DcfCittJattt  fljilU  UDt 

vefquefpt  Ijaijcanpmrtttatljcaaiajop, 

a6.  cites  5 1  H-  6.  15  F.N.B.  ;S.  (M) If  it  abates  for  falfe  Lnfm,  or  for  U'.tnt  of  F.n-m  ; 

as  Ncrninare  for  Prdfentare  &c.  the  Defendant  (hall  not  have  Writ  to  the  Bifhop.     Br  Brief  al   Eve<qiie, 

pi.  10  cites  14H  4.  II.     Per  Hank  clearly S.  P.   But  the  Plaintiff  may  have  a  new  Writ  ot 

Quare  Impedir.     Watf  Comp.  Inc.  Svo.  451,  452.  cap.  27.  cites  5  H.  6.  5.  51  H.6.  1 5.  F.  N.  B    5S.  b. 
58  Ail.  <)■  7  Rep.  27 .  Sir  Hugh  Portman's  Cafe. 

Jint  if  the  Defendant  pkaJs  in  Jbatemert  of  the  Writ  by  Matter  in  FaH,  he  /hall  not  have  Writ  to  the 
Bifhop,  if  he  does  not  make  Title.     Br.  Brief  al  Evefquc,  pi.  9.  cites  1 2  H.  4.  11.    Per  Hull  clearly. 

s.  p  Br        4.  ']3ut  if  ti}e  i©rit  abated  for  Default  in  the  Count,  tljc  Dcfcittiant 
^^^i^^^^i  fljall  !)a\3C  J©rit  to  tIjc  OSifljop,    3 1  P^  6.  15, 

2<5.  cites  .*?.  C Watf  Comp.  Inc  Svo.  519.  cap.  27   cites  S  C 

s-  In 


Prefentation.  a  no 


)cc,iuie  otie  oi  the  Dti'cndants  was  dead  belbrc  the  \V  ric  puR  haled     ti)C  ^"^'  **"''* 

Dclcntiant0  Hjall  ijabe  ailDiit  ta  tije  X^iUjap.    1 1  ix  6.  5^      '      .^^j-;^;  ^^i'^.^^. 
6.  :jn  a  Ciuarc  JiiipeBit  asaiuil  ]^ntron  anti  jiiciiinDcnt,  if  tijc  ^^-  ^  ^  ^^s. 

Patron  makes  Di.t,iul:,  and  the  Plaintill  and  Incumbent  are  at  Ili'ue  upon  (^/'^  f' 
Plea  in  Abatement  Of  tI}C  i^rit,  CrCil.)  \\hether  the  PJaintiif  was  made  m"^  ''''"T  '" 
Kniijht  after  the  lalt  Ccmtinnance,  niltl  lOtKlD  for  tl}C  DcfC!lH:tHt,  tflC  -  H%''IT 

mm  niaii  abiite,  luit  Dctcntsant  flwli  not  ija'uc  nam  to  1(3:31010!].  'Vrca.-. 

*  7?P.   6.  37.    l:.      CJUnitJg'tJ*  econtuiT 

had  r.ppcar'd  and  the  Intumbcnt  mads  Dcfauir,  f/.r'd  fiys'  in  "  H   6  57.   14  H  4.  16.  upon  Picas  oK^-'lie 
LKumbcnt  3^^■l■it  \»  as  iiu aided  to  ihe  bifhop.- ♦Br.  Brief  al  Eve(quc,pl.  30.  circs  S  C.  that  the  I'l  iira'ff 

and  Incumbent  verc  at  Iflue,  but  tal<es  ro  Notice  what  the  IflTue  was. Watf.  Conn  Inc    Svo    <2 

cap.  2-.  Cites  S.C.  —  S.  I'    Br.  Brief  al  Kvelque.  pi.   1-.  cites  7  H.  6.   i  v  where  the  'VVrit'was  uha-ed 
wiiiiout  W  rit  to  the  hrl-op  by  Advice  of  tlie  Julliccj  of  both  Licnches. 


'^t  (rfUC!)   ?3Ica  {jnC  bZCll  Inund  fr.r  the  Patron  fjC  fijOUill  ijAlJC  ^^'^^f^  Gomp. 

)  tIjc  ODiiyop.   OSraak  IBxizf  nl  C^jcfniie  30.  ^"c-  !>vo. 

521.  cap.  2T, 


T.  Eut 

JlCrit  to 

52'-cap^ 

8.  Sn  ClUare  Jmrttllt  m  iijC  CijUril)  Cf  £).  if  Defendant  faith,  Xo  Br  Qu.u- 
fuch  Cnurch  a\  ithjn  ihc  lame  Countv,   tlJE  iiJulUltifffija!!  ijilliC  a  UBnt  tO  '""-pcf^'it.  I'l- 

tOcBuijop.   8I1),  6.  37.   9ip.6. 17.  Cuna>   Contra  45  e,  3-0.     ^'c'!':L 

Inc.  Svo.  520.  cap  z;.  cites  S  C.  F-r  this  can  be  no  Damage  to  the  De'jnda'it  ;  f)r  the  Writ  nriTb'- 
to  the  Church  named  in  the  Dcclaratioi^.  ;  and  if  there  be  no  fuch  Cliurch  thePiaintifFcan  have  n  )  Kn-i't 
or  Advantage  by  this  Writ  ;  and  if  there" be  fuch  a  Church  the  Derendant  has  no  Prejudice  for  iie'"i- 
Ib  fir  from  claimingTiile  to  tliat  Church  that  he  knows  nothinsr  of  it.  Qusre.  Br.  Brief  al  Evt\u^  i  "" 
S  P.  cite.spH.  &.  10.  -'4"e.  pi.  I. 

9.  Jf  one  Tenant  in  Common  hXill^U  ©.Uvlte  IJnipCi^i't  againft  the  Watf  Com n. 
other,  aUH  tljliS  appears  in  the  Count,  fln'O  tIjC  DClUlOaia  DCliaUD?  ^"'^Svo.  525. 

Jutipmeiii  Of  tije  Count,  bcarafe  it  appears  rijereu;)  ti3?.t  t:jci)  riitsv'^'"[:-? 
CiTuints  in  Coinmon  i  v^txiii^n  tljc  €eiin  abates  it.  wt  vfz  D:=  V^^  52- 
tfnl5ant  fijall  not  ijaiJi:  an)>  i^ra-  to  t;jc  'iDUoop,  bccaiue  ij:  ijiij  luutitels.c.' 
uiaBe  'fiiiUe ,  tor  rijo'  it  appcari^  bj)  Uj2  ^S^'^mxt,  toat  tlje  iDtferoant 
Ijas  Eieijt  to  tije  ^Dijirajfon,  pet  tijisi  ty^  in  Coniman  lutdj  iDe  |i)tani= 
titt;  ann  Id  boru  cusDt  to  t)a\jc  u)c  iBnu    20  e*  3-  SXu-itt  iiinpemt 
63.  sinratiivo^ 

10.  X'Utm  Sllia^JWP*  if  ti)Z  Plamtiff  COIintiJ,  nn3    Defendant  W.t:nComp. 


a isu^snunt  .n  ^\io*  i  ip.  s.  not*  537*  ^-  ^- 

II.  iili  a  'XlUa.  Ifinip.  if  tljC  Defendant  makes  Default  at  the  j^rand  See( 

Diitreis,  tlje  li^ialntitf  ougljt  to  nwi^c  ^^it!e  to  tljc  pattanaac  D»  7  ^i  ^• 


CY  d) 
6.  and  the 

a  'a   fV.--.-i»<.  ~  -  -  ,   Notes  there. 

,  241.  ^8.  10  ilO:li^t  F.  N.B    -H 

(N) 'if 

the   Defendant  comes  net  at  the  Diflrefs  returned  \n  Qiiare  Trnpedit,  the  Plai  ititl  fliill  have  Writ  to  the 

Bifhop  without  Title  made,  and  this   by  tie  Statute  ;  Qiaii  Xota.     Br    Brief  al  E/e^iue.  pi.  2.  citcf 

?;H.'i5.  I. But  Hob.  16;  in  Cafe  of  ijToit  i  (SlOUlT  b.  tljf  ©ifliO.O   OfCoJtntri'  &-.    f.:vs. 

That  in  s  Quare  Im;edit  both  Piaintift  and  Defendants  are  Actors  one  arainlt  the  other,  and  tiiereforc 

the  Defendunt   fhall   have  a  Writ  to  the  Bifliop  as  well  as  the  Plaintifl',  h:it  vof  without  a  Title  aoreari  f 

to  the  Court  ;  and  therefore  if  the  Defendant  never  appears,   yet  the  Piaintiti  mult  make  out  a  Tide 

for  Form's  fake,  and  fo  muft  the  Defendant  if  the  Piaintift'  be  Nonfuir. 

12.  He  who  pleads  to  the  f'f'rit  in  Quare  Impedit,  aud  dees  not  make^-^-^>'-- 

Title,  fhall  not  have  Writ   to  the  Biihop  ^  Quod  Curia  Conceliit.   Lr.  ^'-^''^^^P 

Quare  Impcdit,  pi.  31.  cites  43  E.  3.  24.  ci\es^i2a 

4   II.  per 

Hill S.  P.  Ibid  pi.  150.  cites  10  H.  6  4 S  P.  Br.  Double,  .pi.  23.  cites  43  E  3.  25. 

F.  N,  B.  38.  in  the  new  Notes  there  (W.  W)  cites  S.  C. 

6  1  15.  ^\'here 


4- 


AHA  Prefentation. 


S  p.  Br. Biicf      13.  Where  Plaintiff  in  G)uare  Imycdit  is  effoigned  which  is  adjourned, 

al  Evefque,     ^^^^  ^f  jj^g  ])ay  it  is  jomd  that  he  had  jittorney  tn  Court  not  cjjm^md^  the 

Pj_^g^^"^- Defendant  Ihuil  have  Writ  to  the  Billiop.  Br.  Quare  Impedi'c,  pi.  5a. 

Efloign.pl.    cites  14  H.  4.  12,  13. 

46.  cites  S. 

C. F.  N.  B   38.  (L)  in  the  new  Notes  there  (h)  cites  S,  C. 

So  in  Cafe  14.  In  Quare  Inipedlt,  \\\Q  Sheriff' returned  Nihil  to  the  Summons^  At^ 
oftheKinp;  fachiiieiit  and  Di/hefs  ;  Writ  to  the  Bilhop  ihail  liXMt  t hough  no  Writ  b« 
plainntF,  P^r  r,^,^,^^/    ^^_  Brit^ai  Evelquc,  pi.  15.  cites  ^x  H.  6.  56. 

Contra  per 

Martin  and  Strange  J.  Ibid.  pi.  24.  cites  1 1  H  6.  5. 

i?nMtisfaid,  15.  In  Qiiare  Impedit  the  Plaintiff  was  nonfuited,  and  the  Defendant 
if  the  Defer:-  ly  jijr^^uc  oj  thcCourt  made  T'ltle  De  bene  e£e  before  he  ccuui  have  Urit  to 
tm!ie'''f>tle     '^"•'  £'/<^P-     ^^-  i^^kt  2i[  Evefque,  pi.  2.  cites  33  H.  6.  i. 

in  lis  Bar, 

apd  the  Plaintiff  after  this  haii  been  Noi-fuit,  there  the  Defendant  fliall  have  Writ  to  the  Biihop  without 
other  Title.  "  5r.  Briefal  Evefque,  pi.  2  cues  55  H.  6  i. If  t'lc  Plaintift  is  hotjiiited  ajter  appear- 
ance avd  he(cre  Count  made,  yet  if  the  Defendant  will  make  Title  to  himfelf,  he  iliall  have  Writ  to 
die  Bifhoi.'    Br.  brief  al  Eveique,  pi.  21.  cites  14  E.  4  9. 

16.  Quare  Impedit  againfi  tiico^  the  one  is  effoigned^  the  Plaintiff  made 

jDa  fault,  and  the  other  Defendant  made  Title,  and  prayed  Writ  to  the  Bi- 

lliop  ;  he  fliall  have  it.    Contra  it  leems  ii   he  will  not  make  Title.  Br. 

Briefal  Eveique,  pi.  19.  cites  38  H.  6.  14. 

IfQiiarelm-       17.  Quare  L  mp<idit  ag  a  inff  two;  Procejs  continued  till  the  Dijlrefs,  at 

pedit  is        which   Day   the  one  appeared,  and   the  other  made  Dejault  i   And  by  the 

brought  a-    Qpjrjon  ot  the  Court,  W^rit  to   the  Bilhop  Ihall  illue  againlt  him  who 

^^d^lne'makes  made  Default  ;  and  the  other  fhall  be  compelled  to  anlwer.     £r.  Brief, 

Default  zt     al  Eveique,  pi.  17.  cites  14  H.  7.  19. 

the  Grand 

Dillrefs,  2ir\A.ihe.  other  pleads  in  Bar,  Writ  to  the  Bilhop  fhall  be  awarded  for  the  Plaintiff  by  the  Sxz- 
tmc  of  AJarlhrtdge  rap.  12.  without  Title  made  ;  and  if  the  Bar  pleaded  by  the  other  Defendant  be 
found  for  him,  he  alfo  fhall  have  Writ  to  the  Bifhop  ;  and  thefe  two  Perfons  being  npon  thefe  two 
Writs  admitted,  inftituted  and  induced,  fhall  try  their  Right  in  Affile   or  Trefpafs.   Jcnk.  95.  pi.  85. 

. V\  atf.  Comp  Ire.  Svo   521  cap  27.  cites  SC— —  Wati".  Comp.  Inc.  8vo.    526.  cap.  27.  cites 

i).  C. Watf  Comp.  Inc.  Svo.   492.  cap.  26.  cites  S.  C. 

Br.  Error,  18.  In  Quare  Impedit,  the  Plaintiff  recovered  by  Default,  and  the 

V^-]!)^-^^'^^^  Plaintiff' appeared  ly  Attorney,  who  had  no  Warrant,  and   after  the  fudg- 

'  ■   ■  ment  tvas  revcrfed  m  B.  R.  ly  Writ  uj  Error  for  this  Caufe  ;  by  whicfi  the 

Delendant  prayed  Writ  to  the  Bilhop^  and  could  not  have  it  without 

making  Title.     Br.  Briet  al  E\efque,  pi.  20.  cites    i  H.  7.  13. 

19.  If  the  Sheriff'returns  upon  a  Quare  Impedit,  ^uod  .^iierens  nonin- 
ventt  Plegios,  then  the  Plaintift  may  rind  Pledges  in  the  Common  Pleas, 
and  ihail  have  a  new  Quare  Impedit  in  the  Common  Pleas  i  and  if  the 
Sherirtreturn  upon  that  Writ  farde,  and  the  Delendant  appear,  and  the 
Plaintiff  he  called  and  appearcth  not,  the  Delendant  Ihail  not  have  a  Writ 
to  the  Bilhop,  becaufe  that  no  Writ  is  ferved  againll  the  Delendant,  F. 
N.  B.  38 (O) 


See  ex.  d)    ^Y.  d)  Writ  to  the  Bifliop  tipori  Title  made.     Upon  what 

Plea. 

SvoT:^'-  ^-  r^  f^-'^  DefCimant  abates  a  ClUa,  3Inip*  becaufe  the  Church  Y^n?^ 
cap  2-  cites  lull  of  the  Prelentir.ent  of  the  Plaintifi  himlell  Lelore  W  rit  purcha- 

S.C.  led. 


Prcfentation.  ^p^- 


fed,  be  tijall  not  lym  mnt  to  t|}C  Ooifljop  upon  Citic  inaDc.    n  ix 

2.  Jfm  Dcfrnnant  abates  tlje  ilBiit  forfkife  Latin,  ht  mn  ttotr^J^..^ 
mc  nam  to  m  *  x^nijop  upon  ^itie  mm,   €o,n.  sn-  h.  i^onman  *  ^'"i  •  ^  «8. 
27  ti.  Contra  13  £;)♦  +  7.  '  'r^^^^-' 

•       .          ,,  Impcdit.pl. 

56.  cues  4  H.  4.  10,  T  I.  per  Hanke S.  P.  F  N.B.  5S.  [H] 


pi.  1(5.  cites  S.C So  if  the  Plaintiff  ^,y;-o„,;„«c    his  Suit.  -  P.ep   2-.b  cites  Hob    i^s" ^l^TM 

u  be  /.,./«■£  an)  Cou«t  niudc,  yet  if  tlic  Dofcndaiu  will  make  Title  he  il:.ill  have  Writ  to  the  BiHiop   Br 
(^uarc  Imncdit,  pi.   156.  cues  19  E.   4.  9.  '^ 

3-  [So]  jftfjc  Wmxm  be  nonfuiteti  in  a  Clnarc  Jmpctsit,  after  watrcmp. 

*  It    i^"5'"^  ''^'  P^^"^^"^  ^"  ^^'■'  f'J^  Deitnoant  fljall  Ijaijc  a  UDrit  ^"=-  ^'"° 
to  t!je  QSiiljop*  33  e*  3.  8.  b*  5."^-  ^M'  ^:- 

cues  S  C 

4-  St'  tljc  laiamtiffhc  Nonfuiced  in  a  Oua»  jmp,  tijc  Dcfcnnant  ■'?■  p  a>- 
fljail  not  baijc  i©nt  to  toe  oamjop  iuttfjcut  Cit!c  niauc.  9  \),  e.  4.  ^i"  r  zi6. 
b,  II  ^»  6. 8.  2  ip.  5.  6.  pec  Curiam*  inthcEari 

ot  rrm- 

— -Br.  Quare  Impedit,  pi.  S4.  ci:cs  22  H.  6.  44,  4;. Br.  Brief  al  EvcCanc,  pi.  16  cites  s'c  ^' 

F.  N.  B.    5b  [K]  '       "^  ■    ■ 


and  there  it 
is,  tho'  he 
be  one  of  the  (Plaintift.)     Though  one  of  the  Defendants  be  one  of  the  Parties  ;  For  it  was  brought  hy 
;  a^ijivfi  z,  bec.iufo  tlicy  ield  i>i  Ccp^i'ieniiry^fo  that  if  he  fhould  niake  Title,  it  wf  uld  be  contrurv  to  Ins 
Aftinn,  and  yet  the  Opinion  of  the  Court  was  as  a''ove.  Br.  Brief  al  Evefoue,   rl.  25    cites  S,  C     And 
Brooke  fays,  Qucere,  If  he  may  not  wake  Title  bya  J}r.j?ige  Nam,',  and  then  it  aids  the  w!;o!e  Mutt:r. 

6.  Jf  at  the  Dillrefs  returned  Defendant  makes   Default,  tl)t  Pl-liU-  Ru-F-  N  B. 

tiffiyaUuotlju'ijeJBntta  tije  a3!fljop  iBitljout  'STitlcnuiDt  loix  e.p^S^V}'^' 

I,  '  i  hat   l^   the 

4-    "♦  n,fe,:d.uit 

does  7ict  ap- 
pear at  the  Diprefs  returned  AgMn^t  f.im,  the  Plaintiff  fliall  have  a  \^■rit  to  tlie  Bifhop,  wit!  o  .t  making 

Title But  Ibid  in  the  New  Note.s  (b)fays,  Tb.at  if  le  ap^-ean  at  the    Grard  Diifiels,  and  ajter 

makes  Default,  a  Dilh-inj;as  fball  iflue,  and  then  a  Writ  to  the  Bi/hop.  i  3  F.  9  Brief  al  Evef'Uie  19. 
and  altho'  Nihilhs  relir.neA  onevery  Part  of  tie  Prccefs,  viz.  on  tlie  Summons,  Attachment,  and  Dilhcls,- 
yet    the  Plaintiff  fhall  have  Writ  to  the  Bifhop.  12  H.  4.  4.  21  H.  6.  56  1 1  H.  (5  5. 

In  Quare  Impedit  the  Del  end:nt  pleaded  to  IjJ'ue,  and  after  made  Lefatilt,  and  a  Writ  was  awarded  unto 
the  Bifhop  for  the  Plaintiff.  F.  N    B.  9S.  (J>) 

If  at  the  Dijirwcai  returned  againft  the  Defendant,  he  comes,  and  has  Day  hy  the  Prayer  of  the  Partjet 
and  afterwards  niahi    Default;    The   Plaintiff  fhall   not   have  a  Writ   to   the    Bifhop,    but   a   neW' 

Diftringas.    F  N.  B.   ;8.  (T) Note,  The   Defendant    rrtwf  at  the  Grand  Dillrets    and pleadei 

tothe  Inoiiefi.  Contra,  where  he  comes  not  at  the  Pcjnc  per  Vadios&c.  F  N.  .H.  58  (.Tjin  the  New 
Notes  there  (e)  ciles  16  E  9.  Briefal  Evefqne  18.  See  8  E.  2  Quare  Impedit,  l63.  16E.  5.  pi.  1 7.  I  9  £  ; 
3.  pi.  19.  Brief  al  Evefque  19.  See  2  H.  4.  i.  accordant  to  the  Divcrfity. 

He  that  will  have  Writ  to  the  Bifhop  for  Default  fhall  nuke  Title  And  nota,  that  the  Plaintiff" r/w- 
riot  rele.ife  his  Damages  in  (luare  Impedit  before  they  are  taxed  ;  Vinx  it  ivas  record.'d  that  tie  Plaintiff 
'■■vculd  not  have  Damages,  and  upon  tiiis  he  had  Writ  to  the  Bifliop.  Br.  Bucf  al  Evcf;ue.  pi.  52,  cues 
S.  C. 

7-  Uf  3  brinff  Cllia.  Jm>  nntl  after  2   of  them  are  nonfuited,    pet  Watf  Comp. 

tlje  Defcnoant  fljal!  not  fjaDc  aiip  iBrit  to  tljc  'Bifljopi  Jfou  pcraD^  J^V  „°  ,.^ 
uentiive  tijc  30  W  ttje  Emyt.  1 2.  U-  2.  x^nef  al  e\)Cique»  16.  lu,,  s. 'c. ' 

8.  jy 


496 


Prcfcntation. 


Watf.Connv      g    Jf  a  Man  brings  2  Writs  Of  ClUa.  Jilip.  HHtl  ilftCl"  is  nonluired  in 

Inc.  8.0.  p^^.^  j,£,(.  (jjf  2;)crenr'.nnt  fljtill  not  ljn\jc mw  tBnt  to  tlje  'Bifljop  upon 
chcsrc-  tl)i0  tijo'  ijc  w.aim  ^itle,  12  E-  2  X-^nctnl  cucfqe  16. 

<;.  Qu'i.xe  \m\)i:A\t  by  thu  King  againji  the  I'rton'js  of  D.  and  A.  B.  the 
Jt/;/f  ?A'/?rt't'  jT/Y/f;  ly  Voidnnce  during  the  T'cinpcraltics  in  his  Hands  ;  The- 
Friorefs  faid,  Thwt  Ne  voida  pas 'Tempore  Vacationis,  Priji ;  and  the  other 
e  contra,  and  A.  B.  faid,  That  he  is  in  as  Parfcn  In/parfonte  (4  the  Prefcnt incur 
of  the  old  Priorefs  ;  Jiidgiucnt,  if  lirit  lies  againtt  him,  by  which  the 
King  iliall  have  Writ  to  the  Bilhop  againit  him^  and  Ceffct  Exccutio 
quoufque  the  lifue  be  tried  between  the  others.  Br.  BriefalEvelque.pl. 
31.  24  E.  3.  34. 
Flit  wlierc  10.  In  Q_uare  Impedit  agaiiijl  2,  the  one  as  hictivibcnt^  and  the  other  as 

if.  /.""'  Patron^  the  Ineinnbcnt  intitlcd  the  King  ly  a  IFard,  and  the  Church  'voided, 
nJ'tlekhiq  ^"dthc  King  presented  hini^  and  the  Dcjcndant  made  other  Title^  and  the  Plain- 
has  ar.otle/  tiff  was  demandidj  and  did  not  come^  and  theretbre,  per  Hank.  Hill,  and 
.^jM)e /»7?p- Culpepper,  the  Dettndant  who  has  made  Title,  to  which  the  Plaintill' 
ilit  flgxinft  ^..^^  j^p^  anlwered,  liiall  have  Writ  to  the  Bilhop.  Br,  Quare  Impedit.  pi. 
Pi.v,:t,ffof     :59-  Cites  14 H.  4.  15,  16. 

this  I  cid(t7U-e, 

and  pr:iy,s  V\'i  it  to  the  Eifliop,  that  he  may  be  admitted  rotwithftanding  Reclamation  of  the  Plaintiff, 
this  fliall  not  be  granted  ;  Vox  the  Pkn  of  the  I/iaimhent  is  not  to  hav  Writ  to  the  Bijlvp  but  aily  to  excuj's 
hin^elf  of  the  Tort-  Brooke  fiys,  And  fo  Tee  to  what  I'urpole  the  Plea  <if  t!ie  Incumbent  is  wliich  isgiven 
to  him  by  the  Statute,  and  who  fhall  liave  Writ  toth;  Bifliop.  Br,  Ci,uare  Impedit,  pi.  59.  cites  14  H.  4. 
15,  16. 

Ifthe  De-  12.  Where  the  Defendant  pleads  an  z«,^//^67«;f  P/<:^,  the  Plaintiff  fliall 
fcndant        h^ve  ^^'rit  to  tht  Bilhopj  Br.  Brief  al  E\elque.  pi.  i.  cites  9H.  6.  16. 

f  leads  to  the 

If; it  in  Quare  Impedit,  he  ought  to  make  Title  ;  For  otherwiH.-  he  iliall  not  have  Writ  to  the  Biiliop, 

per  tot.  Cur.  quod  nota.   Br.  Brief  al  Evcfluc  pi.  3.  cites  45  E .  3.  2  5. 


(Z.  d)    l^Jat  fhall  be  faid  zfuff.c'mit  Thh: 

I^c'sv?"'^  I-  IB  ClUarC  Jmpetlit  againll  2,  one  pleads  that  he  does  not  claim 
520  dp  2-  A  ^C*  but  conveys  al'icietothe  King,  who  prelenced  him,  ailD 
cites  S.C.  ''the  other  mukes  Title.      Jf   tf)C  PlaiUtUf  bC  afi:CCilVa'B0  noni'uiced, 

tl)c  pixrcntrc  fijall  not  l)a\jc  a  iiBrtt  to  tije  XMffjop,  jfoc  uiOatijc 
picaogi  UJa0  tint  mCtcule  of  tljc  <ICotr,  auo  not  to  ijaac  liDrit  u  tije 
XiFoop,  liuttijcotljcrfljaHijatjctijeusm*  14  ij),  4. 16. 

F.  M.  B.  ;S.  2.  3'n  a  ClUare  3!nipeDit  agaimt  the  J^ilhop  and  others,  if  tJJC  others 
( j)cites  s.     make  Defiult,  and  the  Bilhop  appears,  tijO'  tije  ]3lnUltlff  fliallnOt  (jaUC 

c --Br  Brief  jjrjnttntije'BifijDp  agamft  tljc  otijcf  0,  uiljo  make  Detail  it  luitijoiit 

pi  zrcites'  '<i^Jtie,  pet  if  \]t  counts  againll  the  Bilhop,    tijigi   fljall  bC  a  Uiffu-ICUt 

^.  c : —  Citle  nsaiaft  tijc  otijcrgi*  10  i%  6. 5. 

The  Plain- 
tiff cannot  have  Writ  to  the  Bifhop   without  making  Title,  but  the  'fitic  in  the  Declaration    is  fufriej.t 
Br.  Quare  Impedit,  pi.  1 50  cites  10  H.  6.  4. 


(A. 


Prefcntation.  497 


(A.  e)     Writ   to   the  Billiop.     Upon  ivhrrt  Plea  it   fliall 

be  granted* 

I.  iB  QlUirc  JmpClitt,    if  IIJC  Defendant  faith,   Thar  Xe  Diflurba  Watr.Comp, 

-*-  p.us  tijc  Dcfennant  fljaU  ija^enant  to  tlje  iSifijop.  17  ^*  „p  ^Jch« ' 

3-  71-  S.C.— 

S.  p.  Br. 

Brief  al  E\'c)r,ue.  pi.  14.  cites  21  H.  5.  4^. pi.  22.  cites  21  E.  4.  6y  S.  P.  V\here  the 

King  was  i^Iuiattff.     Br.  Qiiare  Impedit,  PI.4S.  cites  7  H.  4.  52.    And  Brooke  fays,  Tiiat  ib  it  icems 

tiiat   this   Pica   will   only  iave  the  Defendant  his  Damages, S.  P.  Br.  Brief  al   Evefijue.  pi. 

4.  cites  S.  C.     Some  held,  that  tho'  the    Patron  pleads  this  Plea  of  Ne  Difturba  pas,  )ct  ilh  jhall 

rot  conclude  the  Bijl:op,  tut  thut  he  pall  fay  ^  th,zt  he  prefented,  and  his  'Title  was  fciiiid  iy    Jure  P.itniiatus, 
and  he  preferted  his  Clerks   Br.  Quare  Impedit,  pi.  So.  cites  21  H.6.  44. 

In  Quare  Impedit,  the  Plaintiff  made  •Title  by  the  f£'tie  of  the  your.gefl  Dr^uphtev,  the  Defendar.t  made 
Title  as  'tenant  by  the  Cwtefy  liy  i/arria^e  of  the  eldefl  Daughter  ;  To  which  the  Plaintiff  laid,  T'hat  Ne 
Diflurhapas,  by  which  the  Defendant  had  writ  to  the  Biilibp,  in  as  much  as  the  Plaintitf  relinquifhed 
his  Title.  Br  Brief  al  Evefquc,  pi.  29.  cites  5  H.  5.  10. Br.  (.^uare  Impedit,  pi.  62.  cites  S.  C. 

NeDlrturba  pas,  is,  in  F.ff'eU,  theGeneral  Ifftie  in  a  ^nxre  Impedit ,  and  every  Defendant  may  plead  ir 
without  more;  Becaufe  it  is  only  a  Defence  of  the  Wrong  witli  which  he  llands  charged,  a:id  leaves 
the  Plaintiffs  Title  not  controverted,  but  in  EticCt  confefTcd,  and  therefore  upon  that  Plea  the  Plaintili 
may  prefently  pray  a  Writ  to  the  Bifliop,  or  (at  iiis Choice)  maintain  the  Dillurbance  for  Damages.  Kob. 
162.  in  the  Cafe  of  Colt  and  Glover  v.  Bifliop  of  Coventry  and  Litchfield. 

2  SlnadUarcSlUtpCtlit,  if  tIjC  Defendant  faith,  that  pending  the  Watf  Comp. 
^\'^it  the  Prelentoe  ot  the  Flaintuf  is  admitted,  infticuted,  and  inducted  Inc.Svo.521. 

bP  ti)£  'Biiljap,  tl)e  plaintiff  Uiail  \mt  a  mnt  to  tlje  'Bifijop,  15um^z  sV"  "''' 
U  DOESi  not  Denp  tije  Diifurlmncc,  not  tijc  Eisijt  cf  tIjc  l^atro!u  1 1 
E»2.  £auaf c  Jimpemt  144-  SlomnwD. 
3-  Jn  €iuare  Iinipcnit  auainft  tije  ©ttiinarj)  anti  otijcr^,  if  tljs  Or-  watr.comp. 

dinary  faith  that  he  daims nothing  but  as  Ordinary,  tl)C  jiilatlttiff  fljall    ;';•  ''J°'  . 

Ijaiiejungment  agaittttttjc  Crmnaup  prefentlp,  to  ijatie  ndnt  to  tijc  STcL 

'icifijGp,   l3Ut  CcUt't  Executio  6cc.  17  |),  7  i:\Cii.  43.  Uponibch 

Plea  of  the 
Ordinary,  the  Plaintiff  fhall  recover  this  Prefentmenr,  per  Paflon  ;  But  per  Markharh  he  fliall  not  have 
W'ritto  the  Bifhop  ;  Forthe  Prefentation  to  the  Ordinary  fliall  be   Seilin  to   the  Party  ;    Qiiod   Curia 
concelTir.  Br,  Qiiare  Impedit,  pi.  So.  cites  22  H.  6.  28,  29. 

4.  Quare  Impedit  by  the  .^iceii^  and  Counted  that  the  Manor  to  which 
&c.  ivas  held  of  one  S.  in  her  iVard^  and  intitkd  herfelf  ashy  Ward  for  Caiife 
of  Ward  i  the  Defendant  faid  that  the  Ancejiorof  tie  Injant  held  of  N.  who 
held  over  oj  S.  Abfqm  hue,  that  he  held  0/  S.  im.Tiediately,  and  a  good 
Pleai  For  there  the  Queen  had  Title.  Br.  Quare  Impedit,  pi.  96.  cites 

c^E.  3.  54 And  the  lame  Year,  fol.  75.  it  was  found   for  the  Pl.iin- 

tiff",  and  Damages  &c.  and  that  the  Church  was  lull,  and  this  feems  to 
bebvLapfe,  and  the  Piaintilf  refufed  the  Damages,  and  prayed  only- 
Writ  to  the  Billiop,  and  had  it  as  his  Peril  without  Damages,  and  this 
was  to  have  Advantage  to  oull  the  Incumbent.  Lr.  Qiiare  Impedit,  pi.  96. 
cites  24  E.  3.  54. 

5.  Quare  Impedit  by  the  Prior  againll  the  BiOiop  of  C.  and  others, 
Cfie  pleaded  Grant  de  Proxima  Advocatione  to  J.  N.  by  the  Prior  and  Con- 
vent, who  granted  it  to  the  Defendant,  and  i'o  it  belonged  to  him  to 
prefent,  and  prayed  Writ  to  the  Biihop,  and  after  Writ  to  the  Bilhop 
was  awarded  for  him  who  had  the  Grant.  Br.  Qtiarc  Impedit.  pi.  49. 
cites  7  H.  4.  34.  36. 

6.  Between  Common  Perfons,  the  Defendant  may  travcrfe  the  'Title  of 
the  Plaintiff',  without  intitling  of  himfelf,  but  then  he  fhall  not  have  Writ  to 
the  Bipcp.  Br.  Quare  Impedit.pl.  138.  cites  21  E.  4.  i.  3. 

6  K  (B.  e) 


49^ 


Prefentation. 


(B.  e)Writ  to  theBifliop.  In  'vchit  Cafes  it  fliall  h^gyaj/ted. 
k^fuOH  I.  T  jO  a  £iua»  Jmp.  nsiiutft  patron  mm  Encumbent,  if  tijc  incum- 

incoiiluUo  J^   bent  pleads  thut  he  is  Piulon   imparlonee,  ^0  tljilt  1)0   IS  prcfe!lt= 

(E)pl.  2.       £^j  inftitUteQ   rin0  tnUUCtCD,   and  pleads  a  good  -Bar,  and  tlie  Patron 
Watf.Comp  -^i^'o  pleads  his  Tide,  but   does  not   acknowlege   any    Pknarty  Of  fljC 

Inc.  svo.  Drcfcntec,  nnB  3utin;niciit  is  elicit  agninft  tijc  l^lamtiff,  tijc 
509,5''      iiJatroniljaUi)iiDe  a  iiDiit  to  tljc  031030?,  Jcit  the  lane  pkaoi  tne 

"P^^:^  Incumbent  njilll  UOt  COnCUltJC  tt)C  l^attOlt,  DCCaUfC  t!jC  i-3attO!l  coiiio 

v\  here  tiic  not  contranict  tljc  13)!ca  of  tlje  incimUunt  m  tijis  ];^oint.  Dobart  % 
Dc[a,davt    Eeport^  262  piilefton'0  Cafe. 

Advowfon  .IS  P^rfoiimparfciiee,  although  it  be  found  for  the  Defendant,  he  flmll  nor  Iwve  a  Writ  to  the 
Bifliop.     F.  N.b.  5S.(.L; 

watfcomp    2.  jfa€luavc  JnipctJit  be  broua:I)t  aaatiifl  tIjc  incumbent  cf  the 

Inc.  Svo,        Kino-,  null  ijC  pleads  that  he   is  Paiibn  imparlonee  and  pleads  a  good 

cite-"^c'^'  Bar llgninft  tijc  plaintiff,  fljrimnn;  Title  to  the  King  to  prelcnt  by  rea- 

■    ■     fon  otSiii.onv,  Upon  lUljIClj  tljC  Plaintifl  demurs,  and  It  IS  adjudged 

againithim.  'tlCboun;!)  in  tljis  Cafc  tijc  2:)ffcnr!ant  ijas  plcaQcii  tijat 
!3eis  inftttutcn  ann  umuttcn,  pct  tljc  King  may  luggcit  ta  rije  Court, 

thathe  is  not  inltitutcdand  inducied,COntrarPtO  tljCPiCaOt  l)lSi  Ji^tCfClU 

m,  bccaufc  '^ttle  appears  for  tijc  Uino;  luilo  is  a  30.  pcrfon  aitoavis 
prefcnt  m  Court,  ano  fijall  not  be  bounn  bp  tl)c  pica  of  ijis  \^tzM^ 
tee,  anti  upon  tljis  8)un;geftion  cntercn  Ijc  fljali  tjaPc  a  ilBrit  to  tljc 

■^ifljOp.  ^.  15  Ja*  15.   bCtUJCCn  BeiuiiUJ  and  Winchcomb^  and  Pnlejhii^ 

utDUtiixcti  per  Curiam,  erccpt  fputton,  toljo  fcemcn  c  contra.  130= 
bart'0  Ecportsi  261.  fame  Cafe. 

WatfComp.      2    B^ittt  fCCmS,  tljat  vvithout  this  Suggeftion  tIjC  IMW^  njall  UOt 

^""  ^^"- ,.  fta\jc  anp  «9rit  to  tljc  OSifljop.  ^.  15  la.  Id.  Jn  tfje  faiD  Cafe  tljc 
cVte.  s  c    court  ujas  mnincii. 

.-=0  if  the  4.  In  Quare  Impedit  the  Plaintiff  Ihall  recover,  and  lliall  have  a  \Vric 

Plaintiff  in  ^q  ^hc  Bilhop,  and  Damages  tipon  the  Default  of  the  Dejendant  after  Jp. 
^h^  ^K^'P^^^^""  '  QP*^^  ^^^^  ^'^^  '^^^"  ^^^^^  ^  Continuance.     Br.  Damages,  pi. 

fuiled  aj^er      192.  citCS  2  H.  4.   I. 

thtDeliy.d.ir.t  p.iU  7v.ike7itle,  and  have  Writ  to  the  Bi (hop,  though  it  be  before  Count  ;  and  fo  fee 
that  it  is  peremptory.  Br.  Nonfuit,  pi  62.  cites  19  E  4.  9.  and   3  5  H.  6    i. 

5.  The  King  fliall  have  W'x'it  to  a  Billiop  to  indnif  one  into  a  Prehend 
which  the  King  has  given  unto  him,  and  to  give  him  a  Seat  in  the 
Quire,  and  a  Place  in  the  Chapter-Houfe.  F.  N.  B.  34.  (D) 

6.  And  a  Man  Ihall  have  a  Quare  Impedit  of  an  Hcrmita^e^  and  a 
Writ  to  put  him  into  corporal  PoHelFion.  F.  N.  B.  34- (E) 

7.  F.  N.  B.  38.  (C)the  Xote  in  the  Marg.  lays,  That  if//;  a  ^uare 
Impedit  the  Defendant  difclams.,  there  the  Plaintiir'  Ihall  ha\e  a  Writ 
to  the  Eifhop  ;  Contra  in  Difclaimer  in  a  Writ  of  Right  of  Ahoivfo-i.  6  E. 
3.  7.  Error  78.  The  Reafon  is,  becaule  he  cannot  remove  his  Clerk  al- 
ter the  6  Months  pall. 

Ibid,  in  the  8.  Jt  the  Diffrefs  returned  againji  fxo^  one  appears.,  and  the  other  vh'les 
new  Mote<;  Default^  the  Plaintiff  fhall  have  a  Writ  to  the  Bilhop  againft  him  who 
(c)fays,  Seej.p|.^(^g  Default,  and  yet  it  may  be  that  the  other  Defendant  may  bar  the 
Acrordant  p^^intift' •  and  it  is  fo  ufed  at  this  Day  ;  but  the  contrary  was  adjudged. 
Brief  ai  E-   H.  7.  E.  3.  for  the  Caufe  before  laid.     F.  N.  B.  39.  (B) 

veU;ue  21 . 

Lib.  Entry  Qu.ire  Impedit  in  Judgment  4,  fol.  50-.  But  a  Ceflet  Executio  quoad  Breve  &c  quoufque. 
Vide  contra  -  E.  ;.  4  (cxprelsly)  in  a  VN'rit  againft  the  Bifliop  and  others.  VN'here  rhe  Bijhcf  difclaims, 
the  Plaintiff  fhall  have  a  Writ  to  the  Bifhop  ;  Sed  cejftt  tMLUtio(\\.\oM'.c\\ei  Placitum  Sec.  J)ee  17  E.  ;. 
Brcv.  al  Evelquc  5S.  If  the  King  brings  a  S^inre  Inrfedit  agninjl  B    and  another  Quare  Impedit  agav'lt 


Prefentation.  499 


B.athIC  Mid  /?.  lomes  in,  &  non  potell  dediccrc,  rhc  ill.  ^^■I■it  to  the  Bi (hop  (lull  procceJ  for  the 
King  notwuliftunding  ;  for  it  is  an  (Original. 

9.  Upon  a  Recover}'  within  6  AJontbs  a^ainji  the  Iiicumhent  in  Quare  PI.iimifT'  rc- 
Impcdic  the  Recoveror  may  prcfenc  his  Clerk  co  the  Bilhop  laithont  ^'O'Q^i'-i?  -^ 
IVrit  to  the  Rijhop  i  Per  Coke,  Doderidge  and  Haughton.  Roll.  R.  213.  dl"t'aftei"die 
Trin.  13  Jac.  Harris  V.  Aullin  6  Months, 

but  it  was 
found,  that  the  CJ.urcb  <xas  full  of  the  Collation  of  the  Metropclitan,  it  was  doubted  if  in  rliis  Cafe  the 
Plaintift  Should  h;ive  a  Writ  to  the  Bifliop  ;  tor  the  Court  cannot  adjudge  whether  the  Metropolitan  I'as 
done  wrong  or  not,  but  this  fliall  con  e  inTrial  in  (^uaic  non  adniifit.  Br.  Qiiarc  Impcdit,  pi.  55.  cites  1 1 
H.  4.  So If  a  Man  reiders  art  JdicufoN,  and  the  6  Months  p.rfs,  yet  if  the  Chtitch  is  icui,  the  Pa- 
tron may  pray  a  Writ  unto  the  Bifhop,  and   fliall   have  it  ;  and  if  the  Church  be  void  when  the  VN'rit 

comes  to  the  Bifhrp,  the  Eifliop  is  bound  to  admit  hisClerk.  F.N.  B.  ^S.  (F) Where  the  Plaintiff 

retciers  by  reii-'Jct  in  a  Quare  Impcdit,  and  it  hfoiiml  by  the  fame  Verditt,  th^t  the  6  Months  are  pa]!, 
and  thpt  the  Mctropiiitaii  has  prc/e>7ted,  whereas  the  Ordinary  ought  to  have  prcfented  &c.  and  that  tne 
Tear  is  r7c-zip.([l  S>(.c.  yet  the  Plaiinift' Ihall  have  a  Writ  to  the  Bifliop.  F.  N.  B.  5S.  (P)  cites  58  £. 
5.  i;. 

10.  In  a  .Ghidre  Impedit  agdinji  A.  and  B.  and  the  Bificp  B.  made  Title^ 
and  the  Bijhop  pleaded  that  lie  claimed  nothinr  but  as  Ordinary.  The 
Bifhop  died  ;  A.  fuggejied  this  on  the  Ro//,  and  prayed  that  the  Plaintirf:* 
might  reply  ;  and  lor  want  of  a  Replication,  the  Entry  was  made  Quod 
prsdi6t.  Q\ierens  licet  Solcmniter  exaftus  non  \enit  ncc  ell:  prolccucus 
Breve  ibuni,  ideo  Conlideratum  ell  &c.  Et  Breve  Epifcopo.  Upon 
this  a  ^\'rit  of  Error  was  brought,  and  the  Judgment  was  affirmed  i 
bccaufe  it  is  a  NouCutt  alter  Appearance,  which  in  a  Quare  Impedit  is 
peremptory.  2  Salk.  559.  Mich.  3  W  .  tk  xM.  B.  R.  Rot.  569.  Berkley 
v.Hanlkrd. 


(C.  e)  Writ  to  the  Bifhop.     To  ^zvbom  it  may  be  granted,  S''cTriai(U) 

[or  a^jvarckcL~\ 

i.TiF  ina  Ci«arc4'mpet3itan;amfftI)c'Btnjop  anu  otljci-jstljc  Biniopw.^trcomp. 

■*-  be  lound  aDillurber,  tije  UBtlt  aillJ'ljttO  bC  RiantCO  to  the  Metro-  Inc.  Svo 

poiitan  upon  \dxmx.  oftfje  Ufcoijeror*  vltmic'cif  €.  i.  ^3.  put  for  ^.-^  "p.-^- 
■a  Kuie,  contra  30.  "^"'^•• 

2.3n  Ciiut.Jmp.  agatnff  tijc  S'ncumbcnt  ann  fir^rBmarp,  if  tijc  watr co^p. 

Incumbent  claims  in  by  the  Ordinary   by  Laple,  and   a  \\  rit  aUiarlll'tl  Inc.  Svo. 
ao-ainib  him  as  a  Dilturber,  tljOligj)  ti)C  ^rtinarP  fnPg,  Cljat  \)Z  Cl.innS  \-^^-  "P-  -^• 

liotljiuo;  t'tit  ao  Ctninaip  bp  Laple,  pet  upcii  |3)iapcr  of  ti)c  \^\mv  ^e„.oV 
tiiTtisc  i©ntilja}i  tc  aitacDcD  to  tijc  ii^ctropalitan.    19  C  3-  Caiare  wasaff/ncd 

InipCOlt  153-       5  iP»  7-    22.     ^WXXZ,      8  i),^.  22.  l3»  in  CLua:x- 

Ini|.-edit 
brought  aoainfi  the   B/Jhop  of  IP',  and  5  ethers  ;  the  EiJ!>op  pleaded  thai  he  claimed  Kcth/71^  Ijit  [nfiitutkn  ard 
IridiiHicn  as  Ordinary,  Judgment  if,  without  fpecial  Difturbance  alleged,  this  Action  ag.iinlt  him  ourlit 
he    to  maintain;  and   thereupon  I  frit   <a7as    a-^anied  to   lie  JletropJitaii,  and  the  other  Pleaded  i»  Bar; 
upon  which  the  Plaintiff  took  /Jj'tte,  which  is  found  fhr  him,  and  that  the  Clurch  ivas  full  of  t  hi  Collation  rf 
the   BiJIiop  Injra  tempKsfemefire,  and  Hrit  a-zvarded  to  the  Metropolitan  ti^atriji  thetn  ;  and  it  was  a n!:'ne.l 
for  Krnr,  k-iaufe  the  If-  rit  zvas  awarded   to  the  .Uelropolitan  li'here    no  Dcfai:lt  was  in  the   L'tjhrp      yl'fo'lz 
v.as  affigned  for  Error,  /Ai.!r   thfy  inquired  if  tie  Church  was  full  of  the  Collation  of  the    FijI.op  Sec.    and   .7- 
wardcd  li'rit  to  the  Metropclitan  where  tie  Pijhop  was  out  ofCutrt  hy  the  frft  'judgment  ;  and  per  Ga'roigi, 
it  is  not  Error  ;  For  the  Bifhop  remains  Party  after  the  Writ  awarded  ur  Vupra  &c.  the   Plaintitf  iiiav 
affign  fpecial  Dillurbance,  and  Procefsfhall  be  continued  .igainft  him;  a^^d  if  Didurhance   be   fuird, 
the  Plaintiff  fliall  rcover  Damages  again  It  him;  but  Hill  and  Norton  laid,  tha:  it  was  Error  ;  £t  Ad- 
jorniitur.     Br.  Brief  al  Evefque,  pi.  6.  cites  S  H.  4.  22. 


3-  Jn  a  £iua»  Imp*  againft  l^atron  aiin  Ornitiari),  if  t()C  Biiiiop  ^Vatr.comp. 
......  .  ,    g,.^ 

c,p   i8. 
"  c'wc 

the 


claims  nothing  but  as  OrduiarVjUlljCrCltpOlt  JUtin.lllCIlt  IG  IJlllC!!  aaainfl-  ^'■"-'  ^''^ 
Ijim  iUitlj a  Celicc  Exccutio,  ailij  alter  Judgment  is  alio  given  againll  ckcs's'.''c 


^oo  Prefentation. 


— s,  in  the  Patron,  nuB  u  l©nt  to  tftclSifljap  guaiitcTi  amnit  Ijlui,  tfjtd  nir.u 
Quaieimrc-iictitrcftcntotljefameOrtimfln',  tljougl)  !jc  lie  pattuto  tljcUDnti 

i'eSf  b^C'lUft^  i)f  is  "°^  ^«""^  =^  DilUirber.  CO.  6.  i^o/'W/  '49.  Jj^CiU  Ctt^ 
Jtidaiwder    tl'ICS  494.  tO  tIjC  Guardian  of  the  Spirituakica  of  the  fame  Ordinary. 

the  Bijhp 

<u.is  ejjcr^iiec',  the  Phth:tif  tn/jtie  refAult,  and  the  otiier  Defcndavt  n?^:^?  T'rtle,  and  pr?.yed  VVrit  to  tl:e 
fttt/ie  Bijhoi,  upon  the  Default  of  tlie  Plaintiff,  and  had  it;  f^iod  Nota,  ^j?sr  tie  I'ille  iyiade,  and  not 
before.  Br.  Q_uarc  Imy.edir,  pi.    110.  cites  58  H.  6.  14. 

watf  corap.    4.  And  m  tljc  futn  Care  tljc  wx\t  to  tlje  'loifijcp  may  be  nti-ameti 


Ir.c.    Svo. 
tite 


.^^  , g  to  the  Metropolitan,  iiecruilc  tljc  £)rDinan>  10  li)artP  to  tije  !©nt   8  ip* 
ss.c."  ■  4-  22.  b.  iaroungcti  11105.  mm  tljj^  ciiViijacOti^i-  error  tn  tIBntof  €r= 


tor  ;  IdUt  tljCrC  it  UW0  found  that  the  Bilhop  had  collated  by  Laple  tO 

tijc  Cliurci).   Contra  5  ix  ?•  22.    Q3ut  ^itu^re. 

5-  jn  a  ClUa.  Jnip.  for  a  church  within  the  Jurifdiaion  of  York, 
if  tljc  IBrit  to  tijC  TSlfljOp  be  au  arded  to  the  Archbilhop  of  Canterbury, 

wTtr/c^  tlji!3  i%  not  \^m,  but  01115?  erroneous.  ®r.  3  Jia*  05,  per  Curianu 

Inc.  Svo 

549.  Cd'p.  2S.  cites  S.  C. 

^^'^tfComp.  6.  In  a  ClUart  Jmpetlit,  ift'jC  *  rchbiftopof  York  be  found  a  Di- 
.d-'  «°D  28  Itiirber,  tljc  !l9rit  fljail   be  atUarQCD  to  the  Archbilhop  of  Canterbury* 

ciTess.c  Cr.  3-  Sa.  X^.  fain  to  be  tiic  ufual  Courfe,  D.  i6.  ei.  327.  ?•  3b= 
s.  p.  F  N.  B.  )u0o;cti.  Coke'55  entries 496.  t\  a* 

;S  in  the 

New  Notes  there (M.  H) cites D.  527,32S&D.  76,  77   19  E.  5.  Quare  linpedit  153. 

7loht  was  7,  Jf  a  £iiiiirC  Jitlpetlit  be  brOUgljt  againft  Patron  Incumbent,  and 
"ttc  //illvrit  ^^J^  ^rCijblfijOp  of  CantCrblirp,  Guardian  oi  the  Spiritualties  of  Chi- 
Noy  148.  ehelter,  ^CQe  IDacailtC  Of  tijt' X-^illJOp,  ailQ  after  a  Billiop  is  created, 
S  C.  —      and  after  judgment  upon  Non  fr,m  Inforn-iatus  \^  VWitW  fOt plaintiff, tf}e 

cites22R  5.  xBxxi  fljal'i  bc^aiuartJco  to  lijcOSiOjOp  of  Cijicljeifer,  becaufc  ijs  121  Sm- 
wadx^in  «^cbiatc  OrCinarp  ann  Officer  to  tlje  court.  ^.  s-  3!a>  03.  S)it 

Inc.  s'vo.        Tbojuas  Pclham,  pct  CUViaUl. 
543.  cap.  28. 

cites  S  C. ■  In  a  Quare  Impedit'  the  Plaintiff  recovered,  and  had  a  Writ  to  admit  lii,;  Clerk,  dx- 

rtAed  to  the  Dean  ami  Chapter,  Guardian  of  the  Spiritualties,  Sede  I'acante  of  the  Biflioprick,  which  is 
not  returnable,  and  before  the  U  'rit  nvas  executed  a  Bilhop  luas  created  ;  It  was  doubted  whether  the  Autho- 
rity to  execute  the  Writ  be  ceafed  in  the  Dean  and  Chapter  (Guardians  of  the  Spirituidtie.s)  And  it 
feemcd,  That  upon  a  Suggeftion  made  to  the  Court,  Eo  quod  nihil  Actum  fuit  in  Erevc  Pr-cdiilo, 
Another  Writ  might  be  awarded  to  the  Bifhop,  and  may  be  made  returnable,  if  the  Parry  pleafe.  D. 
350.  pi.  19  Pafch.  iS.  Elii.  Anon. Wutf.  Comp.  Inc.  Svo.  548.  cap.  z'i.  cites  S.  C. 

Watf.  Comp,  8.  Wi)Z\\  t\)Z  Inferior  Ordinary  10  found  a  Difturber  Sede  Vacante  of 
S  ^cTp  --8  ^^^  Archbiihoprick,  tljC  WXXt  fljallbC  aiUatUCt!  tO  tljC  Guardian  of  the 

ciKss.c."  Spiritualties  Of  tijc  arcljbiiljoprlcfe.   Cuiic  Of  €.  i.  83.  \i>\M  for  a 

-Br.  (}x,2.re  EUlC. 

Impedit,  pi. 

49.  cites  7  H.  4.  34.  3(5.  per  Hails. 

s.  P.  Nor  to  p.  In  Quare  Impedit  if  the  Plaintiff  recovers,  and  has  Writ  to  the  Adc- 
v\e.  Bifhop  s  f^opoiitan,  there  he  cannot  have  Writ  to  the  Etjkcp  after ,  per  Thorp.  Br. 
Billiopbe      Brief  al  Evefque,  pi.  12.  cites  38  E.  3. 12.  22. 

nut  of  the 

Realm ;  but  in  that  Cafe  he  has   a  Sicut  Alias   to  the  Metropolitan  ;  And  yet  the  Bifliop  was  never 

found  a  Difturber.   F.  N.  B.  38  (Q_)  in  the  New  Notes  there  (d)  cites  S.  C.   Watf  Comp.  Inc. 

Svo.  546.  cap.  2S.  cites  S.  C. 

Br.  Procefs,  10.  The  Metropolitan  had  certified,  'that  it  is  out  of  his  Jurifdiclicn,  and 
pL  50  cites  ^jj^^^  ^ijg  Bipop  is  out  of  the  Realm,  and  has  made  a  Vicar  his  Lieutenant  to 
^■^—  ■  d, 


Prefentation. 


501 


do  all 'Things  for  hm ^  and  prayed  Writ  to  him.  Per  Thorp,  we  are  not  ^-  N.  B.  ■jS 
appriled,  whether  he  has  made  fuch  Lieutenant,  and  till  we  are  '^'<^>'''^A<^''^  ^^^  Note 
that  he  has  done  fo,  we  will  not  write  to  any  but  to  him  who  is  immediate  Of-  there  (d) 
Jicer^  which  is  the  Eilliop.  Er.  Brief  al  Evefque,  pj.    12.  cites  38  E.  3.  citcsS.C.  — . 
12,22.  Watf.  Comp, 

Inc.  Svo, 
546.  cap.  z8,  cites  S.  C- 

11.  Quarelmpedit  lies  in  Durham,  and  Writ  iliall  be  awarded  to  the 
'Bijbop  there;  contrary  in  Wales,  Giicrnfey,  and  the  like.  Br.  Qjiiare  Impe- 
dit,  pi,  152.  cites  11  H.  6.  3.  per  Danlayand  Marten. 

12.  If  a  Man  recovers  his  Prefentation /«  (7.  ii.^^i?/'/;// /^fi  .B//Z70/;,  then  S.  P.  oi- ro 
he  may  ha\e  a  Writ  to  the  fame  Bilhop  to  admit  his  Clerk,  or  to  the  ^''"^^  ''-'^''. 
Metropolitan.   F.  N.  B.  3  8  (B)  ^  "^^^^ 

be  out  of  the 

Realm.  F.  N.  B.  58(0) Ibid,  in  the  New  Notes  (d)  fliys,  fee  16  E.  5.  Qiiare  noti  admilir.  9 . 

F.  N.  B.  58.  (B;  the  Note  in  the  Margin,  cites  -  H  ^i.  52,  S.  H4.  zz.  —  A  Writ  fhall  ifluc  to  the  Me- 
tropolitan, ifthe  Bifliop  be  Party  ;  Qujerc,  for  the  Bi^-o^  did liijcl.iim  as  Patron  in  S  H.  4,  F.  N.  B.  5S, 
(B)thc  Note  in  the  Margin. 

13.  Quare  Impedit  was  brought  againfl  the  Archhijhop,  the  Bipop^and^oW.  Rep. 
3  Defendants  ;  The  Archbilhop  pleaded,  That    he  claimed  nothing  but^'''^,  ]ff^ 
as  Metropolitan  ,  The  BilLop  pleaded,  That  he  claimed  nothing  but  as  ^i^^^  „ 
Ordinary  j  The  Detendants  made  a  Title  j  Judgment  was  given  for  the  pi.  ;6.'s  C. 

Plaintift";  It  was,  among  other   Things,    alfigned  for  Error,  That  the  S:  P.— • 

Writ  was  awarded  to  the  Archbijhop,  where  it  Ihould  ha\e  been  to  the  Bi-  V^atf:Comp. 
Ihop.     All  the  Court  agreed.  That  all  the  Books  are,  That  he  may  have  V^':'  ^^°.  ^g_ 
his  Writ  to  the  one  or  the  other,  where  the  Ordinary  is  a  Dillurber.     And  cites  S.  C, 
Coke  Ch.  J.  faid.  He  had  always  obferved  this,  \\  he  be  Party  to  the 

Suit  or  not,  it  is  in  the  Party's  Election  to  have  his  ^\  rit  to  the  Bilhop, 
or  the  Metropolitan.  3  Bulf  174.  Pafch  14  Jac.  Grange  v.  Dennis. 


(C.  (X   2)  Writ  to  the  Bifhop.  Proceedhgs,  Pleadings  &g. 

I.  T  N  Quarelmpedit  againji  the  Bipop,  the  Plaintiff'  recovered,  and 
j[  had  iFrit  to  the  Bi/hop  to  difmcnrnber  the  Church,  \  iz.  Diftringas  E- 
pifcopum  i  [the  Sheriff  J  returned  in  Ilfues  20  s.  and  [the  Plaintiff] 
prayed  another  DiltiefSj  and  had  it.  Br.  Quare  Impedit,  pi.  72.  cites  21 
K.  3.  30. 

2.  h  the  Sherif  rctrirns  Nihil  at  the  Summons  in  .^^iiare  Impedit,  and 
the  like  at  the  Attachment,  -iVi^the  like  at  the  Difrefs,  yet  Writ  to  the 
Bifhop  lliall  be  awarded.  Br.  Quare  Impedit,  pi.  81.  cites  2.1  H.  6. 
per  Ardern,  &  P.   15.  E.  3.   by  him. 

3.  The  Plaintiff  had  Mv?  to  the  Bijhop,  which  was  returned  Not  ferved,s.  P.  hvA 
y  Alias  k3  planes  awarded.  Br.  Quare  Impedit,  pi.  123.  cites  5  E.  there  fhall 
4.  1x5.  l^ean  At- 

■  tachment 

Bifhop,  if  Need  be,  F.  N.  B.  58(C)  Note  on  this  Writ  tliere  lies  an  JI-.ti,  PIuws  q^.  jltlchme^t 

and   liiereon  the  Parties  fliall   plead  as  in  a  Non  Admifit.  CK)(,N)  5S.  (E;  in  the  ^^w  Notes  tii  ■  * 
(a) 

4.  If  the  King  recovers  in  C.  B.  any  Prebend,  or  Sub-deanery,  or  Di(r~ 
f.'ity  again/}  the  Bifhop,  and  gives  thefa?ne  by  his  Letters  Patent  s'to  another* 
Clerk,  The  Clerk  pall  jhcw  the  Letters  Patent  in  C.  B.  and  thereupon  fhail 
have  a  Writ  unto  the  Bilhop  to  admit  him,  and  to  induft  him;  And  if 
the  Clerk  dies  bejore  he  is  admitted  and  mdatlcd,  and  the  Ki/i"  rives  the 
fame  by  other  Letters  Patent  unto  another  Clerk,  that  Clerk  pall  have  a  Writ 

6  L  out 


5o2  .  Prefentation. 


out  of  the  Chancery,  diicclcd  mitothc  Jttjltces  of  C.  B.  reciting  the  Re- 
covery, and  how  that  the  other  Clerk  died  before  he  was  admitted,  and 
that  he  has  now  granted  the  fiime  to  this  Clerk  by  his  Letters  Patent, 
coniinandiiig  the  Jiijlices^  T'hat  they  fend  another  Writ  to  the  Bilhop, '  that 
he  admit  his  Clerk,  notwithAanding  the  King's  Collation  before  made 
to  the  other  Clerk.  F.  N.  B.  38  (D) 

5.  Note ;  This  Writ  is  exprefsly  judicial,  and  therefore /^i?//  ijfae  out  of 
the  Place  -where  the  Record  is.  If 'judgment  be  given  at  the  Nili  Prius 
the  Jullices  of  Nili  Prius  ihall  award  tiie  Writ  to  the  BilLop  (yet  it  feems 
the  Writ  is  not  returnable)  And  when  it  appears  that  the  Record  is  lent 
into  C.  B.  it  Ihall  iffue  from  thence.  F.  N.  B.  38.  in  the  New  Notes 
there  (M.  H)  cites  Dyer  194. 

6.  Where  Judgment  is  given  inC.B.  in  aQuare  Impedit,  and  a  Writ  of 
E)Tor  is  brought,  the  Court  of  C.B.  may  award  a  Superfedeas  to  the 
Writ,  which  had  been  awarded  there  to  the  Bilhop,  before  the  Writ, 
v/as  delivcredj  and  the  |King's  Bench  may  award  the    like.   Jenk.  206. 


Scc(A.b  1.)      ^Y).  e)   Writ  to  the  Biiliop.    Retm^i  by  the  Biihop. 

TheBifTiop  I.  11  J?©B  at^rittotljCBmjop,  fortlicpaintiff  nmxijm  in 
'' ""'  ^'-  Li  n  ^utt  of  Ciuare  3impctiit  bcttoccn  coiiiniou  li'eifcnsJ,  if 

ftopcd  to    j{,j,  2)rtiinarp  returns,  that  pciitiimj  tijc  SXunrc  jiuipcQit,  anD  tietisrs 

K^mrn  in     '^UDl^mCUt  it  was  found  bv  COninuffiOU  of  Melius  Inquirendum,  tlM 

aikn.h'ashc  d)c  faitJ  !atii30\ufott,U]iti)6tl)ec  tmm  of  tlje  plaintiff,  aljicljujciehdd 

is  not  privy  oftheQuecn  in  Capite,  dclcended  to  the  Plaintitl' trom  his  father,  and 
to  the  Vcr-  ^.j^^j.  j.]^g  Plaintiff  was,  and  yet  is  within  Age  and  the  Lands  feifed  into 
dirt  or  any  ^^^^  ^^^^^  of  the  Queen,  by  which  the  Queen  prefented  tO  {JUH   Olie  13* 

confciics  the  cierU, ti)cCljui-d3 being tDm  Wio.tim  for  3  spontljs  bsfoittiieDcli- 
picnarty  of  jjjfj)  oftljclBrit  to  Ijim,  luIjOHi  IjE  aDmittcn  fc.  anu  fo  tlje  Cljuccijisi 
thechuj-ch ;  j^^^-  f^,|i  ^yj3ci:c{jp  Ijc  caunot  cnmtt  tW  t©nt,  D.  9-  CI.  260.  21. 
^^t^ki  bP  tijc  better  ©pinion  of  tlje  Court,  tbc  ©rninarp  10  not  cifoppeQ  to 
;..  retJ,s  mM  tm  Kcturn  of  tlje  Citlc  of  tbc  €lueen,  ano  tljc  pienartp  of 
for  his  Ex-  ^ly;-  cijurclj  of  1)1^  ^nctiuibent  bp  anp  tljing  contameO  in  tljc  laccorD, 

fei-vintr  2°Wt-its  be  falfe  the  Plaintiff  may  have  his  Quare  Non  Admidt,  and  alfo  Scire  facias  againft  the 
firft  and  New  Incumbent,  to  have    Execution  accordingly     D.  260  a_^  pl    21   Pafch.  9  Eliz.    Baffet's 

Y\,-,f,  Con^p  Inc.  Svo  5'i5    cap.  2S.  cites  S.  C.  And  the  Dortor  lays  he  fuppofes  that  m  tnis  Cafe  the 

firft  Clerk  was  not  inducted,  and  fo  the  Church  remained  open  to  the  King's  Prefcntee,  elfe  his  Infti- 
tution  &c.  mult  be  void. 

Jnd  the  2.    A  Man  had  Proximam  Prcefentationem  by  Grant ;  the  Church 

Plaintiff  -x\u  voided    a  Stranger  prefented,  and  the  Grantee  brought  ^tare  Impedit,  and 

vot  peymiited  ^^^-^.^^^/^^  ^f,^  had  Writ  to  the  Bifhop,  who  returned  that  the  Prefentee  ofths 

\Ve£h-"%-  Difttirbel  rejign'd^  and  another  is  tn  ;  and  upon  this  the  Plaintift'had  Sci- 

aas,  ami  refacias  to  have  Execution,  notwithitanding  that  it  be  a  lecond  A\  oidance 

teyider  Jver-  ^^^    hecaufe  he  recovered  thejirfi  Avoidance,   and  the  Covin  ot  the  De- 

thTfiXf  fendant  Ihall  not  prejudice  the  Plaintiff.     Br.  Prefentation,  pl.  33.  cites 

Ihathedid     21  H    7.  8. 

for  df^Bifhop  \s  only  an  Officer  to  the  Court,  and  has  made  his  Return,  and  has  no  Day  in  Court  ;  hut 
he  m«y  have  his  ^ittn  non  Jdmijtt  againft  the  Bifliop.     Ibid. 

Goldsb.  ^.  3.  In  Quare  Impedit  it  was  found  for  the  Plaintiff,  and  a  Writ  iffued 

pl.7.  and  jQ  jhg  Bilhop,  which  was  not  returned  ;  upon  an  Alias  brought,  the  Bifhop 

-J'J^  "^  rctvrned  that  after  Judgment  given  in  the  J^uare  Impedit,  the  fame  Inciim- 

^■^- '                                          lent 


■ I  I  II  , 

Prefentation  503 

lent,  againjl  'jahom  the  Jffion  was  brought,  ivas  Prefented,  Inftituted  and  ^ -it'- tJoniiV 
ludticled  into  the  {iiine  Church  ;  andfo  the  Church  is  full.     The  Qucltioii  ^"'j^'    ^J^ 
was  it  this  was  a  good  Return, and  it  was  olten  debated.  It  was  adjudg'd  cues  J>  C< 
that  the  Return  ot'the  Bilhop  was  not  good,  and  he  was  fin'd  lo  1.    and 
a  Sicut  alias  awarded,  upon  Pain  of  loo  1.     3  Lc.  138.  pi.  188.  Mich. 
28  Elii.  Moor  V.  Bilhop  of  Norwich. 

4.  In  Quare  Inipcdit  Judgment  was  given  for  the  Plainti/T,  who  waa  Watr.Comp. 
preiented  to  a  Church  void  by  Simony  \  whereupon  a  NV^rit  was  award-  Inc.  Svo. 
ed  to  the  Billiop  of  \V'incheller,  who  returned,  ^hat  before  the  Writ  rt-  550.  cap.  2S, 
ceivcd,  viz.  Such  a  Day  (which  was  after  the  ]wA.<^\w&v\t)the  Cburchwas'^^^^  ' 
full  by  Prefentation  out  of  the  Court  of  Wards,  becaufe  a  Livery  was  net  Cued.  It 

wasfiid  thefe  Returns  of  the  Church  being  full  before  the  Receipt  ot  the 
Writs,  are  always  rul'd  to  be  infufficieuti  tor  the  Bilhop  ought  to  execute 
the  W  rit  when  it  comes  to  him;  and  cites  9  Eliz.  Dyer  [160.  pi.  2.  Bal- 
fet's  Cafe]  and  18  E.  4.  7.  but  fays  the  Difierence  here  is  that  the  King 
prefented.  And  Harvey  J.  being  only  prefent,  agreed  that  the  Judg- 
ment ought  to  be  executed.  Whereupon  it  was  agreed,  that  the  Bilhop 
iliould  have  Day  to  amend  his  Returti,  not  that  a  new  Writ  lliould  be 
taken.  Het.  130.  Mich.  4  Car.  C.  B.  Sir  John  Hall's  Cafe.  And  it  be- 
ing mov'd  again  in  the  Term  tbllowing,  it  was  held  by  Yelverton  and 
Richardfon,  that  the  Bilhop  ought  to  obey  the  King's  Writ.  Het. 
131.  8.  C. 

5.  If  a  common  Perfon  recovers,  and  has  a  Writ  to  the  Bifliop,  and  the 
Ordinary  returns  that  it  is  jtill  before  of  his  own  Prefentment,  it  is  good  j 
As  if  one  recovers,  he  may  enter,  if  he  will,  without  a  Writ  of  Execu- 
tion to  the  Sheriri.     Het,  130.  in  Sir  John  Hall's  Cale. 


(E.  e)    Writ  to  the    Bifliop  to   Remove.    Jf'ho  ftrill  be 
Rcmoijcd.     \Jn  ^what  Cnjes  by  Judgment  <u]hhout  //?h.^ 

i^TJf  it  £0HW  recovers  againll:  the  Patron,   leaving  out  the  Incumbent,  S.  P.  iJRep, 

A  Ijefljall  not  outt  tlje  Jncitmbcnt,  becaure  Ijc  luns  not  tdmv  to  5'  ^i" 
tlje  etut ,  fot  Ije  fijall  not  uc  ouftco  UJitljoitt  anftuer.  *  9  0*  0,  j6.u»  S,'e!!!l 

Dub*  t  19  Ip.  6.  68,  b,  S.  p.'  Cro  T. 

of  Lancafter  v.  Lowe. S.  P.  Jenlv.  iSi.  pi.  7.  fays  it  wa.s  agreed  by  the  Jiiflice';  of  both  Be'rche 


S.  P.   ]enk.  134.  pi.  56.- Incumbent  that  it  is  a  Stravger,  fhall  not  be  culled   by  Writ  to  the  Biihop 

v.-ithout  Scire  j'.icins.     Sid.  9;.   Hall  v.  Broad. .S.  P.  Br.  (^uare  Impedit,  pi.  49.  cites  7  H.  4.  54.  515. 

Per  Huls,  And  if  the  Incumbent  he  oufted,  he  ihall  recover  by  the  Spiritual  Laiv. *  Br.  Ibid.    pi.  6. 

cites  S.  C. 1  Br.  Quare  Iinpedit,  pi.  79.  cites  S.  C.  and  P. 

Brooke  lays,  that  it  feems  that  where  one  recovers  in  i^are  fmpeiiit  agaiti(l  the  Patron  alone  without 
naming  the  frcitriiLent,  that  this  Recovery  will  hold  him  in  Po(kli-on,  tlo'  the  Incumbent  ihlll  not  be 
removed,  bccaulc  he  recovers  the  Prefentation;  quod  lufficit.  Br.  (^are  Impedit,  pi.  39.  cites  47 
E.  3.  4. 

2.  But  If  n  C|3aU  recovers  againft  the  Patron,  l)t  fljaU  OUff  tIjC  J\V  Br  Qua,- 
CUnibCUt  prefented  by  the  fame  Patron  pending  the  V\  rir,  bCCiUlfC  tljC  ^'"P^'^'f>  pf- 

3Kccoi3crot  ccuin  not  name  ijmt  in  tljc  J^tit,   19 1).  6, 6s.  b>  Co,  6.  ^^qI's  p 

Bofwelisi4\3*  Jenk.  2S1'.   ' 

pi.  7.   lavs  it 

vas  ap;recd  by  the  Jnflices   of  both  Benches S.  P.  Jenk.    254.  pi.  3^—2  Inft.  257. —  Contra'  per 

Twifden  J.  who  (aid,  and  it  was  not  denied  by  any,  that  a  \^■rif  {hall  not  go  without  a  &>?  facias 
againft  the  Incumbent ;  for  Res  inter  alios  aBa  alteri  Nocere  non  debet,  and  to  (hip  one  of  his  PolTeiTion 
without  Aftion  would  be  inconvenient  ;  for  he  has  no  Day  in  Court,  and  it  would  encourage  vexatious 
Actions  ;  and  he  laid  that  BotlOlirs  Cafe  had  been  often  deried  ;  and  he  knew  that  Writ  of  EiTor  was 
brought  to  reverie  it,  and  Error  in  Law  alTigned,  but  the  Writ  abated  ;  and  Lord  Coke  in  the  End  of 
the  Cale  Iceniito  confute  the  principal  Judgment.  Sid.  95,  94.  i.i  Cali;  of  Hall  v.  Broad.^\^'at^.  Comp, 
Inc.  Svo.  535.  cap.  2S. 

3- Jf 


504  Prefentation. 


If  the  In- 


,  3.   Jf  il  Stranger  uibrps  by  Pidcnrment  pending  the  Writ  of  Ouatc- 

prcfomd     i"^P^'^t'^  iJis^  Clerk  fljall  be  rnnoDcn  bp  tijc  Jimiwifiit  in  tijc  CUuue 

bythcDe-    SUipCtUt* 
fcndant  Pen- 
dente Bicvi  he  {]yA\  be  removed,  but  not  if  he  be  prcfetited  by  a  Stranger,  without  Scire  'v  ■ ,/     Cm 
J.  94    Ishdi.  3  J..C.  in  Call- of  Lancaller  V.  Lowe.  ■'■■'' 

4.  So  iftljC  King  prefents  without  Title,  pcnnillff  n  S^lUniT  TmufDit 
ngama  anOtljCC  Dlftlirber,  antl  tIjC  Clerk  ot  the  King  is  Jaltitucea  and 

Inducted,  pet  Ijc  fljtHl  bc  m\]o)3m  bp  JuDgnicnt  in  tIjc  duarc  %mm- 

5-  So  tijc  King  prefents  tO  XW  COUtClj,  mill  tIjC  Clerk  is  Inftituted 
WatfCo.'^^P^'-^^'^'^^^^^^SlbnnQ;  Quarelmpcdit  ugainlt  the  incumbent  onlv   (aS  J 
Inc.  Svo.      Cligljt)  nuD  pending  this  the  Kin ^  prelcnts  another  CICtk  (the'firlt  not 
5;5.cap.  28  being  Induaed)  who  is  Induded,  ))Ct  tfjlO  ClCtk  fljnil  bC  tCmOVirti  hi, 

cites s.c.    tlje  junirment  in  tIjc  Cluarc  3inpcmt*    Co.  6.  ^o/af/z^i, 

Ir  S  C  ,  ^  2t  pending  a  pending  a  quarelmpeditnijamaa»@».  tljC  Plaintiff 
byNam'eof  ^^^^^i^^^^^'^'  Ip  luljldj  tljC  King  prelents,  and  his  Clerk  inltituted  and 
Bevei-leyv.   '"tiuded,  auD  tlttCr  tljC  Outlawry  is  revers'd,   and  the  Plaintiff  recovers 

corn^vaii  -  m  tljc  SiuaiT  Juipcioit,  ijc  fl)ail  rcmoi3C  tljc  Jnain]bep.t  of  the  l^intt; 
tot;  pi' '   ^'^."Q^  ?^'  tbc  Ecijccfal  of  tije  ©utlaiurp  tljc  j^refentnicnt  of tije  mk 

;  S  t—  ^^^^  i^^itfjOllt  ^ItlC.     30  €1   15,  K.  Corn^alPs  CafC  ^DjUDrtCD 

pi    21  5.  S.C. 

WatfComp.  Inc.  Svo.  555.  cap.  28.  cites  S.C. 

Kc^'^v^'"'^'    ,  "7*  3^^^"  °  Patrons  prefenr,  nUtl  tljC  Bifhop  refufes  both  their  Clerks 
-iri'.cap'.  2S.  Y'^  onel^atron  bnngs  Q^uare  Impedit,  and  pending  the  Writ  the  other 
ci'te.s  S.  C  -  [^es  a  Duplex  Querela  \\\  tIjC  SrCfjCg  d.mW^  t\]Z  XlfljOp,  \\m\\  U)K\\ 

Wo  5-,. pi.  procer0i0niatie,  ano  upon  Default  of  tiic  isifijop  tije  ArchbiAoD re- 
Ad  wed    ^^T'  }\^  ^^f  ^  "^^^'-^•'^  1?3atton,  ant.  ije  is  niastutco  anB  ind  ufted :  and 

accordi.-ly   !"  ^V  ^  Months,  and  alter  the  Plaintill  in  the  Ouare  Inipedit  recovers 

ije  bp  mxxt  to  tije  OBifljop  fijaii  vcniobe  tlic  Inciimurnr  cf  m  otljer 

33atron  U5ijo  comes  nt  peubuis  tlje  i©nt.  Cr.  41  oil  K  H.  betuicen 

t  u-r^  -^^■'■'^''•'^^'■''^^^^a'^'-'/jatiHib&co.  $^.3  Ja. 'B.E*  citcD. 

Anderfon    j  ?*  F^'^^  ^IT^  V*'^''?^ "?«"  "^'^3  ''^nd  his  Clerk  is  3initituteli  an5  In- 

andwind-  ^"^'^^,^53^11  itiijom  3  bnuQ;  aCiuareJnipcDit,  ann  pending  the 

ham  Ser-       ^^'  r":  the  Incumbent  religns,  and  the  King  prefents  another,  UlljO  iSalfO 

jeantsofthe  infrfttitctJ  anu  induaed,  anDtben  3i  recabct  after  fir  ®onti)S-  in 
Sn  b'.;&  f F^?^^"f '  m  ^  ^^i't  tti  tbc  OSifljop  for  nie,  tlje  tail  ^ncimibcnt  of 
fec"ard  .'t-'  ?'^  ^m^  m  be  ijas  been  \\\  bp  6  99ontlj0,  fijall  bc  reuio'ae^,  bccaufc 
torney  Ge-  Ijc  comcs  iH  pcnbeutc  lite.  Contra.  D.  21  ci.  364.  -s. 

neral,  and 

Bromley  SolHcitor  were  of  Opinion,  that  he  is  not  removeable  by  thi.s  Juds^ment,  bjcaufe  he  was  not 

1  arty  nor  privy  thereto,  nor  to  the  Writ ;  but  Lord  Dyer  fays  it  fecms'  tha't  this  Opinion  is  not  Law 

tho  there  were  20  Incumbents  fucceffively.   Pendente  lite  &c.'    D.  564,  pi.  iS. S.C   Cited  by  Coke' 

who  (aid  that  be  bad  known  it  to  be  adjudged  according  to  the  Opinion  of  Dyer  Roll  R  21  ^  Trin* 
15  Jac.  B.  R.  in  Cafe  of  Harris  V.  Auften.  •        j-  • 

Quare  Impcdit  againft  Parfon,  Patron  and  Ordinary,  and  pendm^  ^,are  Frnpedit  the  P.nfon  rrflpii'J 
and  the  Ordlrary  gave  Notice  to  the  Patron,  and  afterwards  the  OrHhayy  by  Latfe pyejenud  the  fame  hi 
cu7t,he,,t  that  refign'd  ;  and  afterwards  the  Plaintiff  had  [udgment ;  it  wa.s'held  that  becaule  the  fame  In- 
cun^bent  !•:  m  by  a  r.eav  Title,  viz  by  Lapfe,  and  the  fame  Perfon  ngainft  whom  the  Kecoverv  was  had 
r.nd  that  appeared  to  the  Court,  he  fliould  be  removed.  Per  Windham.  ;  Le.  nS.  pi  188  in  the  Cafe 
of  Mom- V.  Bifhop  of  Norwich,  cites  Lo.  5.  E.  4.  115.  116.  and  refers  to  9  Eliz.   D   260    &-i  Eliz, 

.'  "^^fT: VVatf.Comp.  Inc.  Svo,    551.  cap.  zS.  citesS.  C. Watf  Comp.  Inc.  Svo.  ,->(?.  cap  zS' 

cues  S.  C.  [IIS-  '■"• 


s  C  bv  c  ^*  Pending  a  Quare  Impedit  againrt  J.  €>.  if  a  Stranger  prefents  a 
Name  of  ^^r^^nger  upon  good  Title,  and  his  Clerk  atlUlittcrr,  iumtUtCD  ailti  in- 
Lancaitcr  v.  ^"^ted,  aUO  aftCt  tljC  Plaintiff  recovers,  pCt  IjC  iliali  UOt  reUlObC  tillS 

i^we.— -  ^ncumbent.  ^,zM,  05. R.  /Jo/iy.//'^  cafe.  p.  i:ja.aD.  Dubmv 
5;4.cap.  28.  fy^xxccoljcrp. 

ci.es  S.'C._      ■  j^_   ^_  j,,.|,^ 


Prefentation.  505 


A.  brings  Quai-e  Impcdtt  againft  B  and  then  the  Clerk  of  C.  uhoh/is  the  Right  is  admittfd  pertiiinri  the 
^iiare  Imfedit  ^!^/ti>ifi  11.  If^-  recovers,  his  Clcik  fliall  be  admitted  alio,  and  the  Clerk  of  A.  and  of  C. 
fh.ill  n-y  tiieir  Right  in  Ejectment,  Trelpalsor  Ailllc.     Jeak.  ;Si.  pi.  7, 

io»  So  if  tIjC  Stranger  prefencs  the  fiiine  Defendant  upon  f^ood  Tide  WatfComp- 

pending  the  w  rit,  v£t  l)c  fljall  Hot  be  rcmo^jcu,  tljo'  Ijc  bc  aDjuogen  a  ^"''-  ^'"'■ 
Difturbcc  upon  tlje  firft  prefentmcnt  upon  iul)iclj  tIjc  duaix  Jimpc=  dl-ss^c 
Hit  IS  broueijt*    ^*  3  Jill*  ^*  E*  BojweW^  Cafe  contra. 

lU  Jf  A-  ii^i'^i  ot  a  Manor,   to  which  an  ^tJliOUiran  15  iippcnUant,  WatrComp. 
be  outlavv'd  in  a  Perlbnal  A6tion,  anil  after  the  Clhurch  voids,  and  A.  I»^-  8vo. 

prefents  \){^  Clctfe,  auD  tijc  'Bifijop  upon  a  Dinurbance  maoc  bp  15.  ^^'  %%  ^^• 
iDijo  prctenasi  fome  Citle  tljereto,  rcfufcfi  to  annut,  uiDcreiipon  a.  "'^ '  ^  ^■ 

brings  his  Quare  Impedit  aguinlt  the  Biihop  and  i^  anD  DCClatCS  tf)CrC= 
m,   antl  after   the   King   prefents  B.    upon   the  Outhivvrv  Of  ^.  UP' 

onioljiclj  prefentmcnt  15.  i0  aomittcu,  uiHitutcD  ann  inducted,  ann 
after  tljc  Outlaw rv  is  re\ers'd,  auQ  all  tlji0  appcatsupon  jJIeaoino;;  ju 
tl)i0  Cafe  9.  fl)a!l  Ija^c  Jutigmcnt  apinft  03.  became  fje  conies  in, 
«enniu5  tljc  JlBrit,  upon  a  Citic  uiljiclj  is  atjoiuea  aiid  penning;  tijc 
i©rit  i  anu  alfo  becaufc  15.  uias  not  Incumbent  at  tljc  dCinic  of  toe 
i©rit  puicijas'ti,  anQ  fo  coulD  not  pleaa  to  tlje  Citic.  i^iclj.  i6Cac. 
•B.  between  Rish  cind  i\^.vie.  auntDgen  per  Curiam. 
12.  JiU  a  Ciuare  Jnipebit  apina  05.  u  tljc  li^lauttiff  be  nonfaited, 

lUbereiipOn  B.  has  aWrit  to  the  Biihop,  who  was  not  Party  to  the  HDi'It 
Of  cLuare  Impedit,  Ju  tljlS  Cafe,  tljO'  tljC  BiOwp  fjati  collated  betore 
the  Writ  rer\td,  JJCt  inafmUClj  as  1)C  OaD  not  COl'.atrO  befue  the  Judg- 
ment for  the  Writ  to  tlje'BlinOp,  uiljicl)  toas  U)itt)in  tljc  6  99on(;ijS, 
tIjc Clerh  of  tf3C  'Bifljop  fijail be  remoneu.  Co.  vi^agna  Cij.irta.  363. 

13.  Jt  a  {13an  recovers  in  a  ciuare  JimpCtnt  againll  Patron  and  in-  rvo\_^^; 
cumbent  within  the  6  Months,  Ije  fijall  tCmOllC  tlje  SilCUmDcm-.     19  i^X^;  ' 

|>   6.    68.    b.  Inthi.Cale 

the  Incum- 
bent is  removed /,y //>?yKrfj>Kf;;f  without  any  Removal  by  Writ  t")  the  Biihop.     Ro'l.  R    iiz.    in   uic 
Cafe  of  Harris  V.  AulHn. 

14.  So  if  a  93aU  litinSS  Quare  impedit  againll  Patron  and  Incumbent  ^A'atCComp. 
within  the  6  A^onths,  and  recovers  after  the  6  Months  paft,  PCt  tjC  lljaU  ^"'^  '>7■5;2• 
rcm0^e  tije  JnCUmlieUt.     39C.  3I5-     ^OjUGiJil.  "  s'c'i^'"" 

Btit  if  the 
Ouare  Impedit  be  hrotight  after  the  6  Mouths,  the  Incumbent  fliall  not  be  removed.  Roll,  R.  21 1.  Harris 
V.  Aullin. 

15.  3in  an  '?tnife  of  Darrein  Prefentment  or  Quare  Impedit  againrt:  Pa-  Cro.  c  5^1, 
tron  and  Incumbent  brought  utcer  the  6  Months  p.lH,  if  tijC  Defendants  \-^^-  Co-r  v. 
do  not   plead,    fCtllCet,  the   Plenarty  by  6  Monrhs  betbre  the  Attion  j^"''':'f  °' ^'• 

brougljt,  liut  ulcaQs  otlicr  cpattcr  mX^ar,  upon  luljic!)  JiTuc  is  ]m  D  .^7^.^'' 
antl  a  DcrBirt  for  tljc  plaintitf,  tlje  incumbent  njail  be  rcamuco  up-  am  Ad. 
on  tljc  lungrucnt  upon  tljis  verdia ;  bccaufe  tlje  Encumbent  icas  j; 'Js"J  — 
Barti)  to  ti)ci©rlt,  anti  miiiljt  IjaDc  plcancuit,  anu  hid  not  do  it.  ■r'y'''}^- 
%  9^Car.  15,  E.  bctiuecn  tije  X^ifljop  of  @)t.  Odv,d  ann  Lo;-te.  m.  Bin,op  of!sr 
jutiG'O  m!©nt  ofCrcontpona3uti[jmcntiiianCifurc  of  Darrein  David.  Ad- 


inqui 

eemeffre  mono  tranfiott  ann  Damaii:es  to  Dalf  a  I^car,  it  ihaii  be 

intended  that  th.e  6  Months  pafl'ed  pending  the  Writ,  auD   UOt  bCfOtC 

tlje  action  broutxijt.    D.  s  Car.  05.  Eot.  454- 

16.  Jf  a  ^an  brinifS  a  Qiiare  impedit,  the  Church  being  full  ol  hii 
own  Prelcntnient,  aUtl  tljCCitle  IS  lound  f  )r  the  Defendant,  DCt  IjC  flj.aK 
not  rCnin^OC  tljC  Clerh  of  tljc  plaintiff,  becaufc  ijC  might  have  abated 

6  iSi  \hi 


c^Q^  Prefentation. 


thew  rit,  iiccauic  tljc  CI)urclj  U)n0  full  of  tl)C  l^rcfcimmnt  of  m 
li)laiimft'  Ijinitclf  tl)c  Vm>  of  m  tt^rit  pur cl)atc5,    1 9  p^  6.68.  b. 

In  Qu.ire  17.   V\  here  a  Man  rccoi'crs  in  Quare  Jnipedit,  and  a  Clerk  is  in  by  tb' 

Impcdit  the  j^ijjj^^p  yj  Lapfe,  there  he  Ihall  not  be  removed  ;  'therelbre  it  is  goud  tc 

PU,u>S  re-  j^,^j^^^  ^i^jg  Bilhop  alfo,  as  it  feenis,  and  then  he  lliall  not  prelent  by  Laple. 

iheCLm-ih  Br.  Qj;iare  Impedic,  pi.  79.  cites  19  H.  6.  68. 

"lTpI";' md  the  Plaintiff  pi-avM  Writ  to  the  Billiop  at  his  Peril,  and  had  it,  and  refufed  the  Damages  of 
a  Years.    Br.  Brief  al  tveltjuc,  pi.  18.  cites  14  E.  5.  55. 

18.  In  Quare  Impedit,  if  the  Bipvp  fays^  fhat  he  did  fiot  pn-fcnt  ly 
Lrpfcy  aud  chums  nvthnig  I  tit  as  Ordinary^  the  Plaintili"  may  pray  judg- 
ment, andihaJl  recover  the  Preientment.  Per  Palton.  Markhain  iaid, 
This  is  true,  but  he  Ihali  not  have  Writ  to  the  Bilhop.  Brook  fays,  The 
Reulon  leenis  to  be,  inafmuch  as  he  Ihall  not  remove  the  Bilhop's  Clerk. 
Br.  Briet  al  Evefque,  pi.  14.  cites  21  H.  6.  45.  &  22  H.  6.  28,  29. 
S  P.  For  19.  Where  'Title  is  found  for  the  King  after  the  Collation  by  Lapfc,  there 

Lapfe  Ihall   ^|.,g  incumbent  iliall  be  remo\ed  ;  but  not  without  Quare  Impedit  taken, 
the  KuJr"  *^^  ''PP^-^irs  there.      Br.  Encumbent,  pl.  6.  cites  14  H.  7.  21,  22. 
fur  Nullum 
tempus  Occurrit  Rcgf.     Br.  Quare  Impedit,  pl,9i.  cites  14H.  7.  it.     i  5  H  7  f!.     Per  Higham. 

2o.Where  a  Pa  ronage  is  gained  by  the  Prefentation^  Admifrion,and  Infti- 
tution  oi  a  Clerk,  the  Patron  mult  be  named  with  the  Incumbent  in  the 
Quare  Impedit  ■■,  and  if  the  Incainbcnt  be  not  named^  he  jhall  not  be  )x- 
muv'd.  jenk.  200.  pl.  i8.  fays.  It  was  fo  refolv'd. 
r>  ;5V  b.  21.  R.U'.andJ.P.  brought -AViiz  ot  Error  againll  the  Bifhopof  H.and 
P'-^-^^'^*^- Blower  upon  a  Recovery  had  in  a  Writ  of  Deceit  by  the  [aid  Bfhop  and 
■  S.  C  That  Blo-xer  againjl  the  fat  d  R.  W.  and  f.  P.  for  that  the  laid  R.  W.  had  belore 
B.  being  un-  brought  a  ^ttare  Impedit  againjl  the  faid  B.  and  the  Bipop,  and  had  reco- 
tier  the  Age  iiercd  agatn/i  them  by  Default ^  ivheretipon  R.  IV.  had  a  jf  rit  to  the  Metropo- 
of  24.^ and  a  y^^^^.^  ^^  admit  his  Clerky  and  in  the  Urit  of  Deceit  Judgment  was gt-veu  j'or 
matf  Took  the  Plaintiffs  ;  tor  it  was  lound^  that  the  Summons  was  the  Friday  to  ap- 
a  Benefice,  pear  the  Tuelday  after,  and  lb  an  infiifficient  Summons  ;  and  in  that  Writ 
whercuiona  ol  Deceit  the iJefendants  W.  and  P.  pleaded.  That  the  Incumbent  was 
Citation  was  (deprived  of  his  Benefice  in  the  Court  of  Audience,  which  Sentence  was 
tiic  Dek-°  atlirmed  upon  Appeal  before  the  Delegates ;  and  notwithlhinding  that 
gates  to  de-  Plea,  fudgmcnt  was  given  againfl  W.  and  P.  Defendants  in  the  faid 
privc  him,  \\'rit  oV  Deceit ;  And  upon  thatj  udgment  this  Writ  of  Error  was  brought, 
pending  ^j^^  among  other  Things  it  was  ajjigned  for  Error,  That  upon  Snggejlion 
brought  made  after  VerdUJ,  That  B.  was  Incumbent  and  in,  of  the  Prefentment  of  the 
Ouare  Inipe-  Lord  Stafford ^  and  that  he  zvas  removed,  and  that  Griffin  was  in  by  theRe- 
dit  againft  covery  in  the  Quare  Impedit  by  Default,  a  Jl'rit  to  the  Bijkop  was  awarded 
'^'j?w''^,''P  without  any  Scire  facias  againJl  Griffin  i  for  he  is  Poliellor,  and  fo  the 
Blower''  na-  Statute  of  25  E.  3.  calls  him^  and  gives  him  Authority  to  plead  againll 
ming  hi'm  the  King,  and  every  Releal'e  or  Conhrniation  made  to  him  is  good.  But  to 
Ciei'k,  and  this  it  was  anfwer'd.  That  as  to  the  Scire  facias  there  needs  none  here 
recovered  again  It  the  new  Incumbent,  for  he  comes  in  pendant  the  Writ,  and  that  ap- 
at^'the^ Grand  P^ars  by  the  Record  i  but  if  he  had  been  in  before  the  Writ  brought, 
Diftrcts,  and  then  a  Scire  lacias  would  lie,  and  cited  9  H.  6.  It  was  adjourned.  Le. 
Writ  to  the  293,  294,  295.  pl.  402.  Hill-  27  Eliz.  B.  R.  Williams  v.  Blo\ver. 
Metropoli- 
tan to  remove  B.  and  admit  the  Clerk  of  R.  W.  whereupon  one  GriflSn  was  admitted,  i'lftitutcd,  and 
inducVed.  The  BilTiop  and  B  brought  a  Writ  of  Deceit  in  C.  B.  againfl:  R.  W.  and  the  Sheriff,  and 
.Summoncrs  for  Non  Summons  ;  R  W  and  the  Summoners  appear,  but  not  tiie  Sheriff  The  Sunimoners 
being  ey.imined,  denied  that  there  was  any  fufficient  Summons,  by  reafon  of  the  ShortneCs  of  the  Time 
and  the  Diftance  of  the  Place,  the  Benefice  lying  in  Wales.  R.  W.  pleaded  in  Bar  of  this  V^'rit  of  De- 
ceit, this  Difability  of  B.  and  Sentence  of  Deprivation  by  the  Delegates,  fuppofing  thereby  that  he  can- 
not be  reftor'd  to  his  firft  Title  and  Intereft  in  the  Church  Sec.  The  Bifhop  and  B.  demurr'd.  And 
>Jote  this  was  pleaded  in  Bar  as  v  ell  againll  the  Bifiiop  as  againft  B,  and  fo  not  good  ;  Whereupon  Judg- 
ment wasj'i.'cn,  That  the  firft  Judgment  be  let  afide,  and  the  Plaintitts  reftor'd  to  all  which  they  loft 
&c.  For  the  hain}bei:c^'  is  twt  in  ^nejlioi,  but  the  Difturh^ne  of  the  Ptaintiff  171  the  ^uare  Inif edit  lo^K- 
fent  to  the  Church,  which  was  void  by  the  Suppof.al  of  the  Vi'rit  ;  and  the  Matter  ot  the  Deprivation  and 
Kei''ovn!  oj  B  frcni  tJ  e  Church  is  not  in  ^nrjticr.iy  tl  is  Reazrry  ij:  ^ii.ire  Irnfedit  by  tie  Dr_fh:dAnt,  by  ?;/■,•.«' 


Prefumption.  507 


the  riaint'ffs  in  thii  JVrit  of  Deceit  were  damnified  &c.  And  upon  tlii.i  fudgment  R.W.  brou-'ht  Writ 
of  Erroi-,  ;ind  tlie  Judf^menr  was  rcvers'd  ;  but   not  for  any  Matter  in  Law.     D.  55;.  b.  ;54.  a.   n]   ;o 

;i.  Mich.   iS  &  19  till    Blower  V.  Williams. Jbid.  Marg.  :;54.  a.  pi.  ;i.  fays,  So  Nore,  That  he 

was  mt  veflor'd  to  the  [r.aonbemv  ajpin  in  the  IFrit  of  Deceit,  Lecaiife  he  did  not  hfe  it  iy  the  Suppofal  of  thf 
Writ  of  ^< II re  Fnifedit,  'which  fttpjofed  the  Chinch  to  he  -void. 

22.  If  the  Clerk  comes  in  under  the  Title  of  the  Plaintiffs  and  /ince  the'^'^^^te^v^x 
fame,  he  fliali  be  removed  ^  but  if  he  come  in  hy  Title  Par amoHni,  he  Ihall  '■''■"'''"'J"  is 
not  be  removed.     And  for  that  the  Clerk  comes  in  hanging  the  IJ'rit,  't  ^^{^/'e^/iT" 
ieems  that  he  fliall  be  removed.     Per  Anderlon  Ch.  J.  Quod  Periam  J.  ter the  JclLa 
Conce/fit.     Goldsb.  105.  in  the  Cafe  of  Beverley  v.  Cornwall.  brought,  un- 
lets where 

t\\t'Title  of  the  P.rtron  is  Paramonnt  the  Title  of  the  Plaintiff,  fuch  Prcfentee  fhall  be  removed  upon  a  Re- 
covery by  the  Plaintiff.  Per  Anderfon  Ch.  f.  ;  Le  159.  pi.  iSS.  Mich  zS  £lii.  C.  B.  in  the  Cafe  ot" 
Moore  v.  the  Bifliop  of  Norwich.  ■ S.  C.  &  P.  by  Anderfon.     Goldsb.  5.  pi.  7. 

23.  If  the  A'//;r  recovers  his  Prefentment  unto  a  Church,  and  has  a  iVrit  -^>'dh  ap- 
to  the  Bilhop  Sec.  to  remove  the  other's  Incuml^ent,  for  which  the  Inaiin-^'r^''^^'^^^y 
bent  fueth  an  ylppeal  in  the  Archbilhop's  Court  &c.  by  reafon  whereof  the  That  ano-^''* 
Archbilbop  fendeth  a  Prohibition  that  he  do  not  admit  the  King's  Clerk  x^^e.\■  Common 
pendant  the  Appeal  8>ic.  then  the  King  pall  have  a  Wr/Y  directed  to  the  P'^'^fi"  "^^o 
Archbijhop  and  his  Officers  to  take  off  his  Inhibition,  and  that  they  do  no-  j''^*:°p'^''5^'' 
thing,  nor  fufler  any  Thing  to  be  done  by  others,  in  Derogation  of  the  ment'^or  "" 
Crown  or  ot  the  King's  Right ;  and  lliall  have  another  VV  rit  again/i  the  hath  Title  to 
Incumbent,  that  he  do  not  profecute  fuch  Appeals,  Provocations,  or  other  P''ci"ent,  foaii 
Procels  or  Impediments.     And  alio  the  King  may  have  an  Attachment  di-  ''.'f'f.  ^'"'^ 
leStcd  umo  the  Shtnff  agaiuj^  fuch  Incumbent,  if  he  go  en  there   after  p,.oi,^[,°f;„^ 
fuch  Prohibition  directed  unto  him.     F.  N.  B.  43.  (A)  uitotheSpi- 

ritual  fudp'e'! 
or  the  Party,  that  they  fliall  not  proceed,  or  profecute  fuch  Sec.  and  alfo  Attachment  a"ainll:  them  if 
they  do  &c.     F.N.  B.  45.   (B) 

24.  LetJurcr  was  remo\cd  for  not  officiating  in  Perfon  as  the  Fotindation  ' 
ycquircd.     MS.  Tab.   &c.  cites  1720.    Philips  v.  \\  alter. 

For  more  of  Prefcntation  in  General,  See  i^UlJOluron,  CoHatlOn,   %V 
ttlOJip,  iind  other  proper  Titles. 


(A)     Prefumption. 


I.  T  F  tlie  Eldcfi  Son  be  beyond  Sea  at  the  Death  of  the  Ancejlor,  and  the 
I  yoHugcfi  enters  into  the  Land,  he  is  not  accounccd  in  Law  a  Dif- 
feijor  ;  becaule  the  Lawprefumes,  that  he  prclerves  the  Polfeliion  f;r  his 
Brother  ;  But  if  upon  his  Brother's  Return  he  keeps  him  out  ot  Pollelfi- 
on,  then  the  Law  looks  upon  him  as  a  Dilieifor.  Per  Doderidge.  Lat. 
68.  Pafch.   I  Car.  in  Mayow's  Cafe. 

2.  Cafual  and  Accidental  Things  are  not  to  be  prcfunf  d,  unlels  al- 
leo^'d.  Arg.  Hard.  8 1.  Mich.  1656.  in  the  Cafe  ol  the  x\ctorney  Gene- 
ral V.  Buckeridge. 

3.  Powel  Juitice  fays,  he  does  not  know  any  Cafe  where  a  Man 
fhall  be  made  -^TortJ  cat  or  hy  Prelumption  only,  2  Lucw.  1568.  Mich. 
4  \V.  &  M.  in   Cale  of  Gwin  v.  Pole. 

4.  Where  the  Lwji)  intruj/s  Pcrfons  as  (Jufticc  of  Peace)  zaith  the  F.s- 
ecution  ot  a  Fo-iter,  the  Court  ought  to  give  Credit  to  them  in  the  Exe- 
cution of  th.it  Power  i  tho'  if  they  make  a  fallc   Return    whereby  the 

Party 


5o8 


Privilege. 


Party  and  Jullice  are  abuled,  they  may  be  punilhed.   lo  Mod.  382.  Hill. 
3  Geo.  B.  R.    the  Q^aeen  v.  Sinipfon. 

5.  Odiofa  S  hihoncjfa  non  fiuit  in  lege  Prtefiimenda  &  in  fa[io  quod  fe 
habtt  ad  Bonmti  S  Alalum  magis  de  Bono  quam  de  Malo  pra^jumcndiim 
ejl.     See  Maxims. 

6.  Semper  pra^Jhmitur  pro  Sententia  &  Pro  Legitimatione  puerorum.  See 
Maxims. 

Stabit  Prtffninpiio  donee  prohetur  in  Coiitrariim.     See  Maxims. 

For  more  of  Prefumption   in  General,  See     ILCngtf)  Of  "(ICiniC,  "210111- 
C\)mcnCC,  and  other  proper  Titles. 


Privilege. 


(A)  Of  Officers  in  Courts   [from  Offices  nml  Duties'^ 

So  of  aCkrk  I.  Tjf  att  Attorney  of  B.  R.   bC  niade  a  Churchwarden  Of  a  |3anil), 

of  B.  R.  j^  {30  ajall  I)ai3C  a  J©rit  of  pnlitlcgc  out  of  id.  3K.  fljciiiits  ijis 
Pafch  I'l'  li>vroilegc  to  be  tufcljarijcti  tljcrcof  for  tjis  attcnnance  in  tijc  fain 
Tac  Stamp's  Coutt.  \d,  14  Cat.  06.  E.  •f'^'/'^'  ^^''^/'o«  htiixQ  Cn\  attornep  of  13. 
caib.         K»  uia0  maoc  COurcljiuarticn  of  Ipanuicli,  anti  tcfufen  it,  ann  fjc  toas 

fiseo  m  tijc  Spiritual  Court  to  ctecute  tIjc  fain  £)fficf,  ann  i^ro- 

Ijibition  oranteo. 
s.  p.  of  a        2.  Cr.  15  Car*  'B*  1R»  90t*  Barker's  Cr«fc  bcino:  electcii  C&iircij^ 
Clerk  of  the  iuarOcii  Of  aiDcruiar))  in  lounon,  anti  fuel)  l©rit  Grantco. 

Court;  and        ^_  Clerks  of  the  King's  Courts  ate  UOt  pttlltleiJCD  trom  Watch  and 

by^'the who'ie  ^^'ard,  fot  tljcp  Hiap  fiiiti  otljcts!  to  no  It  fot  tljeiu,  ann  tbcre  nceng 
Court,  that  not  aup  Ji)erfdnal  attcntiancc.  -Sir.  15  Car.  15*  E*  m  tlje  faiD  Cafe 

for  all  Of-      ot  Barker,  fajtl  Ij))  lUftlCC  JOnCgi. 

hces  which 

require  his  pei^fonal  and  continual  Attendance,  as  Churchwarden,  Conftable,  and  the  like,  he  may  have 
his  Privilege;  hut  for  Offices  which  may  be  executed  by  Deputy,  and  do  not  require  Attendance,  as 
Recorder,  and  the  like,  (from  which  the  Juftices  themfelves  fliall  not  be  exempt)  for  fuch  he  fhall  not 
have  his  Privilege.  Mar.  30.  pi. 65.  Trin.  15  Car.  Anon. 

SceNoy.  4.  An  Jttorney  of  B.  R.  was  elefted  T'ythtngman  of  Taunton,  in  which 

"^;  ^^'^    Town  a  Ciijiom  is  pretended.  That  every  onepoiild  be  Conftable,  or  Tyth- 

but  it  feems'  Jngm^n  "'  ^'^  Turn,  according  to  their  feveral  Hoiifes,  and  he  having  'piir- 

ftrangely  re-  chafed  tivo  Hotifes  in  the  Town  was  chofen  Tythingman  at  the  Leet  there ; 

ported.  He  brought  his  Writof  Privilege  to  be  difcharged  }  becaufe  he  is  to  be 

attendant  in  B  R.     It  was  moved,  that  it  might  not  be  allowed,  becaufe 

here  was  a  fpecial  Cultom,  and  lliould  an  Attorney    purchale  many 

Houfes,  there  might  not  be  Perfons  enough  to  do  the  Service,  as  here  he 

has  actually  purchafed  Seven.     But  all  the  Court  held.   That  this  cannot 

be  a  good  Cuftom  ;  For  then  a  Woman,  being  an  Inhabitant  in  one  of  the 

faid  Houfes,  it  might  come  to  her  Courfe  to   be  Conftable,  which  the 

Law  will  not  allow.     It  was  ordered,  that   he   be  difcharged.     Cro.  C. 

389.  Mich.  10  Car  B.  R,;  Proufe's  Cale. 


Privileae. 


§^-  509 


5.  S.  an  Attorney  ot'  B.  R.  having  Land  within  the  Manor  at'  H.  in  Though  ic 
the  County  of  Middlefex,  Ratione  tenuraj   ought  to  fcrvc  as  Reeve  ^"^^  obj-ct- 
when  eletted,  and  he   being  now  elcfted,  prayed  a  Writ  of  Privilege  wasrCo'y- 
that  he  fliould  /Wt  be  compelled  to  gather  the  Rents  of  the  Lord^  and  to  fcrve  liolder,  and 
in  that   Office;  Per  Keiling  Ch.  J.  this  Writ  lies  here,  and  is  a  llrong-  by  Cuftom 
crCale  than  JijirOUfCjQ'lBi   Cafe     Cro.  Car.  389.    Twilden  J.iaid,  A  Te-  {-""S'^^^  ^" 
nure  may  be  created  ro  fuch  Intent  to  collcft  the    Rents  of  the  Lord  ^  T^r'^fncl- 
Et  Adjornatur.   Raym.   179.  Pafch.  21  Car.  2.  Stone's  Cale.  dent  to  his 

Ell.itc  cre- 
ated by   the  fame  Cuftom,  and  though  it  was  arbfuid,  that  he  might  execute  this  by  Deputy,  yet 
the   Court  gi-anted  the  Writ;  For  tottie  ill.  it  was  laid,  that  the   Privilege  of  this  Court  is  as   aticient 

as  the  Curtom  of  any  Manor;  and  to  the  zd.  lie  is  rcfponfiblc  for  his  Deputy.     Lev.  265.  S.  G. 

Vent.  16.&  29.S.C, 

6.  Such  as  have  Privilege  of  Chancery  fometimes  have  a  Superfedeas  CurCCanc. 
of  Privilege  granted  them  as  a  Proceftion  ;  the  molt  extenfne  of  which  49 v  '^■^'n-  iS. 
Sort  contains  both  an //•//// /7^7/o«  <?W67.'/)^r/t'f/(?.'r J,  direfted  to  all  and   fin-    '    ' 
gular  Jullices,  Judges,  Sheritis  &c.  injoining   them  nvt  to  moleji  or  ves 

<2  CA'!-/:  of  one  of  the  fix  Clerks  of  this  Court  in  his  Privileges,  and  (a- 
mongrtother  Things)  not  to  put,  or  chiife  htm  into  any  Ojfice  of  Colkitor^ 
Churchivardcn^  or  other  common  troublelbme  Office  ;  and  ifany  Diftrefs 
has  been  made  upon  him  on  that  Account,  without  Delay  to  releaie  it. 
P.R.C.  2S7,  288. 


(A.  2)  Of  other  Perfons. 

I.  CIR  W.  H.  wasfeifed  of  the  Manor  of  R.  in  EfTex,  in  which  he  And  though 

^3  prefcribed  to  have  a  Leet.  A  an  Alderman  of  London  lived  ivithin  the  "  J^'^*  Z^''"^*' 
Precintfs  thereof,  and  was  frefetited  by  the   Homage  to  be  Conjiahk,  and  nii-^ht  c\x- 
this  Prefentment  was  removed  by  Certiorari  into   B.  R.  and  the  Alder-  cute  it  by 
man  was  difcharged  ;  becaufe  he  was  obliged  as  .Alderman  to  be  preienc  Deputy,  and 
at  London  for  the   Government  of  the  City.  Jo.  462.  pi.  4.  Trin.  16.  '^"* '"^'^'.'''^'^^ ' 
Car.   B.  R.  Alderman  Abdy's  Cafe.  is  not  rc.-.u'i- 

fice  by  the 
Cuftom  of  the  Manor,  yet  ><on  Allocatur  ;  And  thereupon  a  Writ  v.-as  awarded  to  be  directed  to  the 
Lord  of  the  Manor  to  difcharge  him.    Cro.  C.  5S5.  pi.  5.    16  Car.  B.  R.  S.  C. 

2.  Captain  of  the  Guards  is  not  privileged  from  being  Reeve  of  a  Manor.  Lev.  z%~. 
Sid.  355.  Hill.  19  &  20  Car.  2.  Sir  W  alter  Vane's  Cafe.  ^-  *-* 

3.  A  Dottor  of  Phyjkk  was  chofe  Conjlable,  and  the  Court  thought  Per- 
fons of  Quality  Ihould  be  privileged  againlt  fuch  Offices,  and  therefore 
made  a  Rule  that  he  fliould  be  difcharged  of  the  faid  Office  Nili  &c. 
Sid.  431.  Mich.  21  Car.  2.  B.  R.  The  King  v.  Pordich. 


ckjiajtical  Ferjon.     2df  y,  Becaule  ail  the  Land  ne  has  m  tlie  Marlli  is  in  L^g., 
Leale  for  99  Years  ;  The  Writ  was  granted  by  Rainsford  and  Moreton 


T  thev  only  being  in  Court,  Moreton  for  the  firltReafon,  and  Rainsford  ^5od  2S2. 
for  the  2d.     Lev.  303.  Mich.  22  Car.  2.  B.  K.   The  Archdeacon  of  Ro-  ^^^^eder'    ' 
chefter's  Cafe.  Dr.  Lee's  Cafe.  T!m  the 

Archdea- 
con's  Predeceffors  did  execute  this   Ojficc  ;  and   the    Court   ordered,  that  Xotice  -niould  be  F;ivcn,  and 
Caufe  fhewn  why  the  Doftor  Ihould  not  do  the  like  ;  Kut  aherward.s  the  fiid  two  Judges  ruled,  that  he 
fliould  be  privileged ;  And  it  is  there  faid,  that  the  Land  being   in  Leafc,  it  feems  tliat  the  Tenant, 

ifany,  ought  to  do  the  Office.     And  the  Writ   was  granted. S.  C.  cited   6  Mod.  140.  Pafch.   5 

Ann!  B.  K 

6  N  5.  Hi^h 


( o  Privilege 


5.  Htgh  Corijtable  was  dilcharged  from  ferving  the  Office  of  Ovcrfeir  of 
the  Poor,  during  his  High-ConftabldLip.  2  Jon.  46.  Pafch.  28  Car.  2. 
High-Conftable  of  Wanlteed's  Cafe. 

6.  The  K !  fig's  Officers y  though  they  may  execute  the  fame  by  Deputy, 
are  privileged  from  Parilh  Offices,  though  they  drive  Trades  in  the  fame 
Parifh,  and  luch  Privilege  isgraiitabk  out  cf  Chancery  as  well  as  the  Exche- 
quer. 2  Chan.  Rep.  196.  32  Car.  2.  Raymond  v.  Parilh  ot  St.  Botolph's 
Aldgate. 

7.  Note,  a  Writ  of  Privilege  was  moved  for  to  have  a  Chrgyman^  who 
appeared  to  have  no  Cure  of  Holds,  privileged  from  the  Office  ot'Overfeer 
of  the  Poor.  And  though  Holt  Ch.  J.  feemcd  againft  it,  becaufe  he  thought 
their  Privilege  of  Exemption  was  only  extendible  to  their  Spiritual  Re- 
venues, and  if  in  any  Cafe  they  were  Perfonal,  it  was  only  Irom  Com- 
mon Law  Offices,  and  ipecially  if  they  were  without  Cure,  as  here,  yet 
the  other  three  Juftices  were  ftrongly  againft  himj  But  however,  for 
his  Lordlhip's  Satisfaftion,  dellred  it  Ihould  be  ftirred  again.  6  Mod. 
140.  Pafch.  3  Ann.  B.  R.  Anon, 


.  (B)  Privilege.     For  iv!m  Cmifes. 
But  if  he      1.  TJf  tl  S^iin  &C  arretted  coming  to  Weftminfter  to  anfwer  an  Aftion 

V  as  not  com-    1  fljctc,  Ijc  fljnU  \)^\^^t  tijc  priiiilcge.  2  %  7. 2.  d,  9 1)*  6.  44. 

ing  to  the 

Court  at  Weftminftcr  it  isotherwife  ;  For  it  he  comes  to  London  in  the  Vacation  mefne  between  the 

being  I'ued  in  Bank  and  the  Arreft  in  London,  he  fhall  not  have  the  Privilege   Br.  Privilege,  pi.  54. 

circs  2  H.  7.  2 t)ne  that  was  coming  to  the  Court  of  B.  R.   to   attend  upon  his  Caufe,  was  ar- 

refted  as  he  was  coming,  and  was  forced  to  put  in  Bail ;  but  upon  a  Motion,  and  making  it  fo  appear 
to  the  Court,  he  and  his  Bail  were  both  difcharged.  Hill.  22  Car.  And  the  Party  that  arrclted  him  had 
been  alfo  punifhed,  had  he  not  pretended  that  he  knew  not  that  the  Party  came  about  his  Bufinefs  de- 
pending in  the  Court;  for  the  doing  of  this  was  an  Aftront  to   the  Court,  as  well  as  an  Injury  to  the 

Party  arrefted.  L.  P.  R.  2  Vol.  569 But    to  have   the  Proteftion  of  the  Court,  the  Party  muft 

appear  in  Perfon,  that  the  Court  may  examine  him,  and  that  they  may  be  fatisfied  upon  his  Oath,  that  he 
vas  either  profecuiing  or  defending  feme  Suit  "^tndxng  in  that  Court,  when  he  was  arreikd.  Gilb.  Hift.  of 
C  B.  167. 

2.  Soifoe  be  arreffcH  returning  from  tijc  Court  !je  fljalllialjc  tlje 
l^ntiilcgc,  zl%  7-  2.  b* 

3.  2f  a  Sl9an  be  fued  in  Bank,  anU  !)C  goes  to  another  Place  by  Leave 
iiift  of  C  B  ^^  '■^^  Court  to  inquire  for  Evidences  concerning  this  Matter  Ulljlcl)  \)Z 

167  cites"    W  tijere,  ije  fljall  ijabe  tlje  pniji'.cp  if  be  be  arreacb  tbm.  13  ip- + 

Fitzh.  Cor-    I.  b* 
pus  cum 
Caufa.  I  51.  S.C. 

tZ-  ^}^^T,  4-  But  in  tbisi  Care,  if  be  bass  not  Leave  of  the  Court  u  ffo  tbcre, 
Hift.  ofc  B.  jjg  fljgjj  j^Qj  jjjj^j  tbeli^ribilep.  13 1).  4-  ^  b» 

'■  . .        5-  3if  tlje  Deftnbant,  in  a  UBrit  of  ^ccfpar0,  be  arreffeu  in  another 

Br.  Pnvi-     Court,  in  coming  at  the  Return  to  anfwer  the  Plaintiif  bC  fljaU  ba\)e  blSl 

dt'e's's'  c"-  Pnbilep.  4 1)>  6. 8. 

&  p.  but 

fays,  that  he  was  difmiffed  till  they  were  advifed,  quod  nota,  but  that  by  2  H.  5.  cap.  2.  it  is  cnafted, 

that  he  fhall  be  remanded  where  he  fhall  remain,  and  fliall  not  be  difmiffed. 

J"  ^^\  ca<"e    6.  jf  a  span  be  arretteH  ttpon  a  i©rit  retiirneD  in  iSanh,  if  be  goes 

have  his  Pri  4°  ^^i^es  out  of  his  VV^ay  tO  anOttjCt  paCe  to  buy  a  Horle  to  come  to 

viiege  ifar-  London,  aiio  ijc  10  tijece  atcciieo,  m  befljaUbauebLS  pribiiege*  9  li). 

refted  in  a      6.   7-  b» 
Town  Cor- 
porate at  fuch  Diftance  ;   For  it  miy  be  that  he  went  thither  to  buy  a  Horfe,  or  other  Things neceflary 
for  his  Journey.  Br.  Privilege,  pi.  4.  cites  5.  C. 

7-  3f 


Prrivileae. 


'^ s±i 

7-  2f  3iUtlilCiin  Aftion  pending  in  B.  and  myGood^  are  arreted  in  Lon-  Br.  PHvi- 
don,  which  oughc  not  to  have  Privilege,  31f3!  render  my  Body  Volun- ''^."'^'P''^" 
tarily  to  iree  my  Goods,  J\  fljall  ItOt  IjilUC  tljC  i^l'tUlICp,  iJCCaUfe  It  UW.gi  i"-;;  pw 

mi?  omn  act  to  raiocc  utp  fein  20  jp»  6. 3.  u,  anjuouco,  againft  a 

Jiian  in  Lo- 
tion, his  Goocfs  are  att itched  by  the  Ctifom,  and  he  renders  his  Body  to  Prifin  to  dijfolve  the  Jttnchmetit,  yet  he 
fliall  have  the  Privilege  of  the  Batik,  if  he  was  impleaded  there  before,  notwithftanding  that  the  Ren- 
der to  Pnfon  was  his  own  Act ;  For  he  was  ii\  by  virtue  of  the  Plaint.  Sr.  Privilege,  pi.  29.  cites  38  H. 
6.  12. S.  C.  cited  S  Rep.  145.  b.  in  Dr.  Drury'sCafe.  —  See  pi.  23. 

8.  3!f  a  ^an  be  arrefleli  in  going  to  London,  tfto'  be  fja^  an  *  Ac-  see  pi.  i. 

tion  pending  in  Bank,  pCttfljC  U)aS«  not  coming  to  this  Court,  [)C  fljall  CV*-^^^ 

not  \mz  m  mmzt^t.  z  rp.  ?■  2.  i^i^-^ 

9-  3!f  tl)C  Plainciii,  m  a  ^lllt  in  Bank  bC  arrelled  in  London  by  De-  a.  implead^ 
lendant  upOn  a  Plaillt  tljCte,  hetbre  the  Return  of  the  Writ  in  Bank,  ed  B.  mC  B 

ije  1!)  ail  l)aijc  Ijiis  [pnijilcgc*  1 1 1).  6. 22. 52.  and  /.<,rf  a^. 

to  appear, 
and  tht  Defendant  arre (led   the   Plaintiff  coming  toiuard  the  Court  to  profecute  his  Suit,  the    Flaintitf   fhall 
Jiave  Privilege  for  his  own  Suit.  Br.  Privilege,  pi.  5 7. cites  11  H.  6.  27. 

10.  3!fa^an,  having  an  Original  UepClttlinQ;  returnable  in  Bank,  This  feems 
comes  to  London  3  Weeks  betbre  the  Return  for  thisCaule  aitO  UO  OtijCf,  ""^P''"f^^'^» 

ansatijere  10  arrcftco,  be  fljall  Ijaije  t&e  l^nijiiege*  iiD»6. 3.  But  u'bookirth" 

ije  comes  to  lOno;  before  tljCQimie,  becaufe  he  islick,  tobe  retrelhed,  ifthePlaln- 
lje  fljaU  tja^je  tbe  priijiiese.  1 1 1|)»  6, 52,  tiff  was  ar- 

refted  2  Days 
before,  it  (hall  be  intended  to  prevent  his  keeping  of  his  Day,  and  therefore  fhall  have  his  Piivikee  ' 
but  if  it  was  2  or  5  Weeks  before  the  Day  it  would  be  othcrwil'c.  Fur  tlien  it  could  not  be  intended 
That  his  Coniirg  was  to  keep  his  J  )ay,  unlefs  other  Gtulc  was  fliewn,  as  that  he  had  been  fick,  and  that 
his  Coming  fo  long  before,  was  to  refreih  himfelf,  11  H.  6.  52.  a.  pi.  i6.  but  I  do  not  obfervc  the  Point 
mentioned  at  1 1.  6.  H.  3.  —And  fee  pi  1 2, 1 5 . 

lu  But  if  a  ^an  does  not  come  to  LonllOn  to   take   a   Suit  at  tljC 

Common  lain,  but  10  tbereremaniinn;,  tho'  he  has  an  Aaion  pending 
in  Bank,  ^£t  be  fljall  uot  Ijaftc  tije  l^mijilegc  if  ijcbe  arreffeu  tbere* 

ti]|),  6.  3. 

12.  Clji^idtrUe,  if  be  be  ^rrcfted  2  or   3  Weeks  before  Return  of  See  pi.  lo. 
the  Writ  in  Bankj  jfOt  tbeulje  COUlU  UOt  be  in  COUliUS  to  tbe  lom\,  It^PP"'?d 

"^*6.52.  ation,   that 

Defendant 
jn  Bank  was  arrerted  in  London  in  the  Vacation,  when  he  need  not  come  about  his  Suit  at  W'Lltminftcr^ 
and  therefore  it  was  the  Opinion  of  the  Court  thatt  hefhould  be  remanded.    Br.  Privilege,  pi.  31.   cites 
59  H.  d.  50. 

13.  But  if  be  toa0  arteffcu  fberc  but  2  Davs,  or  fitcb  little  '^Time  bc=  sce  pi  10. 
fore  tbe  Eeturn,  \%  fljall  Ijaiic  bis  pnijileffe,  tbo'  be  be  ftavutiT  tbccc  ■■,  ^,"^  !'"r . 
JTor  bj)  tbi0  arrcrt be  cannot  hecp m  2>a^  m  "Banh,  1 1  !>,  6,  J2»        KSme  to 

London  1 2 
Days  before  the  7'erm,  and  is  arrefted  in  London  ;  Upon  Oath  that  he  came  fo  long  before  the  Term,  te 
retain  Council  in  his  Matter  in  Bank,  the  Privilege  was  allowed  him.   Br.  Privilege,  pi.  2S  cites  3S  H.  6 

4.- In  Debt,  Exigent  W3S  atuarded  in  I'rinity  Term   returnable    in   Hillary  'jerni,  and  Mefnc,   viz. 

in  Mich.  Term  the  Defendant  came  to  London,  and  was  arre fled,  and  prayed  Privilege  ;  Per  Brian  Ch.  J.  be 
Ihall  have  the  Privilege,  if  he  came  forCounfcl  in  the  fame  Caufe  ;  And  therefore  the  Plaintitl  in  Lon- 
don took  out  an  Original  in  Bank  againft  the  Defendant,  and  he  was  compelled  to  anfwer  to  it  imme- 
diately, and  had  Privilege ;  quod  nota.  Br.  Privilege,  pi.  45.  cites  20  E.  4.  12. 

14.  A  Man  who  dwelt  in  London  was  mpkadcd  at  We^mhificr^  and  dftet 
was  arrejhd  in  London^  and  was  difmilled  by  the  Privilege,  tho'  he  dwelt 
in  London,  as  well  as  if  hehad  been  arrelled  in  London  coming  out  of 
the  Country  to  Wellminfter,  to  have  appeared  at  a  Suit  there  i  But  Brook 
fays  it  feems  that  this  was?;;  the  Term;  For  contra,  it  leems  if  he  h:id 
been  arrelled  in  the  Vacation.  Br.  Privilege,  pi.  jj.  cites  1 1  H.  6.  52. 

15.  A 


5  i  2  Privilege. 


5ec  thcNotcs      15.  hhVmfucd  a  Replevin,  M\dixhc  Defend  lilt  ajfirmed  Plaifit  in  a  Bafe 
ai  pi.  17.       Court  by  Covin  to  have  the  Goods  dijhained  to  be  attached,  fo  that  Replevin 
Jhould  not  be  thereof  made;  and  the  Sheriff' rerurned  it,    and   the  Plaintift' 
prayed  Superledeas  lor  him  and  hisGoods,  bccaulb  the  Court  oi Bauk  has 
the  elder  ^eiJiH  by  the  Replevin,  and  he  could  not  have  Privilege  by  Super- 
ledeas lor  his  Goods,   but  only  lor  his  Body  i    But  per  Laicon   he  IJiall 
have  it  lor  both  ;  but  by  levcral,  the   Plaintift"  may  have  Certiorari  lor 
all  il  he  will,  and  lee  elfew  here,   that  the  Attachment  Ihall  not  diliblve 
the  Dilliels  taken  belbre.   Br.  Privilege,  pi.  51.  cites  16  E.  4.  8. 
The  Plain-         16.  W\iCXQ.  Matter  is   continued Jor  a  } ear,  by  reaibn  that  it  is  in  ^r- 
^'^^•'f'""f.^?  bitrcmentj  a  JVlan  lliali  have  Privilege.    Per  Brian.  Ch.  J.  Br.  Privilege 
':^fn  '"l  Pl-  45-  eites2oP:.  4.  12. 

^lslt  ajter  Ins  r      T-'  T 

Tear  /ijter  I  is 

Bill  exhibited,  was  an-clkd  ia  London,  and  l-.ad  his  Privilege.  Totli.  ziS.  cites  15S8.   Marflial  v.  Moor 

S.  C.  cited  P.  R.C.  2S5.  it  ap[5eariag,  that  he  came  up  only  lor  the  tollowing  his  iuit. -Cui-f. 

Cane.  4(;6.  S.  C. 

.;j';.W  per  Sul-       1-7.  A  Man  brought  Corpus  cum  caufa,  to  he  removed  out  of  London,  be- 
harde,  ita     ^^^<^^  j^^  jg  tndittcd  of  ^refpafs  in  £.  R.  And  by  the  belt  Opinion  helhall 

MAti  claims     ,  i        r.    ■    ■  1  -^  d        n   •    -i  1  •  r>  x 

He  Privilege  have  the  Privilege.     Br.  Privilege,  pi.  47.  cites  2  R.  3.  16. 

by  .'i^ciicn 

ircugbt  by  himfclf,  he  fliall  be  examined  ivhether  it  be  brought  by  Covin.     Ibid. Where  the  Aftion 

is  broiight  !7i  the  fame  Term,  he  lliall  be  examined  of  the  Covin;  but  it"  it  be  in  a  former  Term,  the  Re- 
cord  fhall  be  credited,  and  the  principal  Cafe  v.as  put  oft  &c.  therefore  quaere.    Ibid. 

18.  He  v,'ho  has  Jttornty,  and  comes  to  comnuitie  with  hiin,  and  is  ar- 
refled  in  London  iliall  have  Privilege.  Br.  Privilege,  pi.  34.  cites  2  H. 
7.  2.   Per  Townfend. 

19.  JndhQ  who  co7nes  to  a  Vi/1  to  merchandize,  and  after  has  Notice 
that  Plnrics  Capias  is  ifiicd  againfi  him,  and  it  is  returned,  and  that  if  he 
does  not  appear  Exigent  lljail  iiiue,  there  if  he  would  appear,  and  in  the 
mean  Time  he  is  arrerted,  he  Ihall  have  the  Privilege.  Per  Townfend  ^ 
qqgere.     Br.  Privilege,  pi.  34.  cites  2  H.  7.  2. 

Soo^z  Ser-         20.  Note,  that  where  Cefty  queUfe  conies  to  Weftminiler  to  maintain 
vant  or  Far-  ^t^^  y^;^  of  his  Feofiee  in  Ule,  and  he  is  arrelted,  he  lliail  have  the  Privi- 
lege.    Br.  Privilege,  pi.  i.  cites  27  H.  8.  20. 


trier,  who 

comes  to 

bring  Mo 


rey  to  his  Leffor,  who  is  in  Suit,  to  maintain  the  Suit.     Ibid. 

So  in  Debt  21.  If  the  Baron  alone  be  impleaded  in  C.  B.  and  in  coming  to  defend 

agawft  Ba-   j|-,g  g^jj  ^^  ^fj^  /^;_j  j,'^„ig  are  both  arrelted.  they  lliall  both  have  the  Privi- 


and 


'^;::V-lege.     D.  377.  Trin.  23  Eliz.  Anon. 

fedeas  of 

Chancery  was  caflfor  the  Barcn  ;  and  becaufe  the  Feme  cannot  anfwer  without  her  Baron,  and  they  are 
one  Perion  in  Law;  therefore  Per  Cur.   It  fhall  fcrve  for  both.    Br.  Privilege,  pi.   i;.  cites  22 

H.  6.  3S. 

P.  R.C.2S9.  22.  The  Defendant,  coming  to  execute  aCommiJJion,  was  arrefted,  and 
-  Curl.  Yi2,d  a  Corpus  cum  Caufa  to  let  him  at  Liberty.  Toth.  218.  cites  Trin. 
cm'^A'^       23  Eliz.  jackfon  V.  Vaughan. 

23.  Action  of  Battery  was  brought  //;  C.  B.  and  upon  Not  Guilty 
pleaded,  the  Parties  were  at  Ilfuei  and  when  the  f  iirywent  out  to  con~ 
ftdcr  of  their  Verdici,  the  Defendant  caus'd  the  Plaintiff  to  be  arrejied  by 
Procels  out  of  B.  R.  for  a  Battery  done  to  him  before  by  the  Plaintiffs  The 
Court  being  inform 'd  ol  this,  would  have  difcharg'd  the  Plaintiff',  but 
that  he  having /jrt^  in  Bail,  they  laid  they  could  not,  but  commanded  the 
Plaintiff  in  this  new  A6lion  to  releafe  his  Arrell,  which  he  did ;  and  they 
fet  a  Fine  on  him,  which  he  immediately  paid  in  Court.  And  they  faid, 
that  the  Suitors  ought  fafely  to  come  and  go  by  the  Privilege  of  the 
Court,  without  Vexation  ellevvhere.  Goldsb.  33.  pi.  8.  Mich.  29  Eliz. 
Lea's  Cafe. 

24.  A 


Frivilcee. 


§!: 513 


24.  A  Defendant  coming  up  upon  an  Attachment  would  have  had  his 
Privilege  againjl  a  Citation  in  the  Arches^  and  could  not ;  bccaufe  a  Cita- 
tion is  no  Stay  of  his  Perfon.  Toch.  218.  cites  Pafch.  30  Eli:i.  Cook 
V.  Dix. 

25.  The  Plaintiff  was  arrcfted  when  he  came  up  to  examine  Wltneps,  P-  R.  C. 
and  was  dilcharged  by  Superfedeas  o^  Privilege.  Toth. 2i!i.  cites Trin.  ^?^ — r~ 
1591.  or  32  Eliz..  fbl.  738.  Barnardillon  v.  Bawd.  CiirH  Cane 

26.  The  Plaintiff  was  rcleas'd  out  of  Prifon,    tho'  detained  at  other  ^^    "'*'' '  * 
Men's  Suit,  becaule  he  was  arrcjled  when  he  ViX?, going  about  his  Bufincfs 

or  !Sfiit  in  Chancer)'.     Toth.  211.  cites  8  Car.  Smith  v.  Garby. 

27.  When  a  Perfon  complains  to  the  Court  of  B.  R.  ot'  a  Mifde- 
meanor,  and  it  is  adjudged  that  his  Complaint  is  'vexatious  i  this  Court 
will  not  allow  the  Privilege  of  protecting  him  in  his  Return.  1 1  Mod. 79, 
pi.  13.  Pafch.  5  Ann.  Anon. 


(C)  For  fujkat:  Thh/gs.  And  In  rjuhat  Atiion. 

I*  Tif  a  39tin  UiaiS  condemned  in  London,  and  taken  before  the  Writ 

X  purchas'd  in  Bank,  \)z  fljiiU  iiot  Ijiiije  W  l^riijilcijc,  but  fljall  Ue 
rcmanoeti.    iof!)»6,  lo.  b. 

2,  3f  a  £l3an,  UJijO  comes  to  LOntlOlt  to  anfwer  an  Original  affattUT  *  If^fter  \m 
fjim  returnable  in  Bank,  be,  before  the  Return,  arrelted  upon  a  Plaint  in  '°f^^  'j^r 
London  prior  to  the  Date  ot  the  Writ,  \)Z  \[)^\\  HCt  OilUC  tljC  PHUiICOIC,  C  he  i 


*  9  ip,  6. 54»  b»  10 1},  6, 10*  b*  ifar  Ije  fljail  not  be  nifcbactjcD,       '  a,Teite/in 

London 
upon  a  Plaint,  lie  fliall  have  the  Privilege,  tho'  the  Pl.iintilf  be  Konfidterl or  Ejfoigned,  or  will  not  ap-. 
pear,  fo  that  the  Writ  be  returneil,  anrl  the  Telle  of  the  Writ  prior  to  the  Plaint  upon  -which  he  is  .ir- 
refted  ;  but  if  thcWrit  be  not  returned,  he  fh.dl  not  have  the  Privilej^e  ;  fjr  the  Court  has  not  any  Re- 
cord ;  but  upon  Plaint  a-ffirmed  hcjore  the  Tejle  oj  his  It'iit,  he  fliall  not  have  PHvilcge.  Br  Piivilen-e,  ol, 
5.  cites  S.  C. 

3»  So  if  tlje  Pl'iint  was  the  4th  Day  of  Oclober,  and  the  Writ   bOtC 

2)ntc  the  lit  Day,  pct  if  It  be  fauuti  upon  Cranimation  tijat  tljc  mm 

lOaiS  delivered  the  bth  Day,  ije  Ujail  nOt  IjaUe  tlJC  i^rioUCiie,     9  I).  6, 

54*  tl* 

4»  Sif  a  ^an,  coming  to  anfwer  an  Original,  bC  arretted  upon  a  Plaint  If  a  Matt 

in  London  iublequenc  to  the  Dace  ot  the  \\"rit,  but  befire  tijC  Return,  '■> ■'^  ■» -''uit 
.  if  tIjC  Original  bo  after  returned,  Ije  fljail  Ija'ue  iU^  j^)nljllcgc,  tijO'  tIjC  f^'^f' ^'"1,,^ 

piamtiff  in  fl)e  2)rigiual  ijas  not  pet  none  anp  COinn;  m  t!jc  mxit  i  be  connag 
toe  bv  tlje  Eetuni  of  tl)e  J©at  toe  ©riijfual  loais  pciiDinij  ttoai  tfje  ^Town  Jo 
SDate,  nb  3',uitto»   9  Ji>»  6»  54*  b«  curia*  10  p.  6»  10.  b.  prvecute  or 

*^        J        —r  defend  it 

here,  he  cannot  be  fued  clfewhere  ;  Per  Twifdcn.    Mod.  66.  Mich.  2z   Car.;.   B.  R.  Anon. 

5.  So  fljall  It  be  tljO'  tlje  Plaintiff  in  the  Original  bC  outlaw'd  at  the 
Return.     9  iX  6.  55    b*     CUria> 

6.  But  if  h  B9an  fues  an  Original  agaiUd  UlC,  but  does  not  deliver 
theW'ric  to  the  Sheriff;  nor  any  Writ  is  returned  i  aUD  3!  fUppOfinO;  t!)C 
l©rit  to  be  retUrneO,  come  to  anfwer  it,  and  in  coming  am  arrellcd,  31 

fljnll  not  Ijaije  tljc  l^riljilegc  i  for  Ijere  no  iJSrit  i^  Depcnninn;  auaintt 
nie*   9  fp.  6.  54.  b»     .      .  r  ■    .. 

1-  !Jf  3i  aUl  arrefletl  m  an  inferior  Court  commg  to  anfwer  a  Capias 

fuen  againft  me  in  15m%  3!  fljall  ijabe  tl)c  larilnlese,  t(jo'  tlje  tlDiit 

be  returned  Non  elt  Inventus.  20  Ip»  6.  4. 

6  0  8.  a 


514  Privilege. 


Br.  Piivi-  8.  CI  ^aW  tD{)0  10  coming  to  profecute  a  Suit  fljnll  1)il^C  tljC Privilege 

""^'s  C  —  ^'^^  ^^^  ^'^  Goods  necelTary  *  for  the  Journey.     20  JJ),  6.   4* 
pi.  24.  cites  9  E.  4    47    Tliar  it  was  touched  there,  that  he  fhoulfl  have  Piivilej>;e  there  for  hi^  Horfe 
and  SerViJiil  who  come;,  v.ith  him. —  Ibid.  pi.  27.  cites  2i  H.  7.  ^9.   That  he  fhall  have  Privilege  tor  his 

Horie  and  other  Goods.  • It  was  faid  by  Afcough  and  Fulthorp,  When  a  Man  comes  to  London 

about  his  Suit,  He  and  his  Horfes  and  his  Goods  neceflary  to  his  Journey  fhall  be  privilcg'd.  And 
by  Newton,  he  fholi  ha\'e  the  Privilege  for  all  his  Goods  brought  with  him,  the'  he  brings  Surplufage, 
and  lb  of  all  his  other  Goods,  QiiErc  inde  ;  And  fo  after  he  was  remitted  as  before.  Br.  Privilege,  pl.6. 
cites   ;o  H.  6.  4. 

*  S.  P.  And  alfo  for  his  £'Ar^e?)«.f.     Br.  Privilege,  pi.  29.  cites  ;SH.  6.  12. 

Br.Privi-  9.  So  if  l)C  briitiXS  tDitl)  Ijim  more  <^00D6  than  are  necefTarv,  (pct  if 

lege,  FL5  5_{)giir{nn;0t!jCmU)rtijljim  lor  Defence  ot  the  Suit)  t)C  Ojall  \)iXOC  t'QZ 

pH  ci,;;   prtiJiltsctdrtljEnu 

-4  H.  6.  Per 

Prilbt.    Quod  non  Negatur,    [And  fee  the  Notes  at  pi.  8.  Per  Nev/ton  ] 

Br  Privi-       10.  But  ije  lljaU  not  Ija^e  priWIcgc  fov  fuch  ©0050  a^  t}c  carrier 

lege,pU5-    tpiti)  lltm  to  merchandile.     20  J|)»  6.  4. 

CKCS  o.  Vj.  

Ibid    pi  6   cites  S.  C. pi.  S.  cites  ;4  H.  6.  1 5.     Per  Pri.fbt. Br.  Privilege,  pi.  29.  cites  98 

H,  6.  12.-^—  S.  P,  Gilb.  Hid.  of  C.  B.  19S. 

r\>^-^0      II.  Jf  Defendant  jtt  ait  ^CtlOlt  Of  Dcbt  in  Bank  ]}t  arrefted  in  Lon- 
Fol.  2-4    don  for  the  fame  Debt  by  the  lume  Plamtift,  fjcfijail  Ijalie  tljC  t^CI^lletJC  i 
\;^'^^Q^  ann  tUljCn  IjC  corner  into  Ooank  upon  tDC  Habeas  Corpus^  tijo'  tlje 
lege,  pi  n.    Paintlff  be  Nonfuited,  J)Ct  "(JC  fljaUDE  UlfiUlflcU*     12  jp«  4.  21. 

ciies  S  C.  — 

Br.  Knnfuit,  pi.  i;.  cites  S.  C. Gilb.  Hift.  C  B.  i(5S.  cites  S.G.  If  it  appears  to  the  Court,  that  it 

is  the  laine  Plaintiff,  Defendant  and  Attion,  the  Defendant  iTiall  be  difchavg'd  ;  became  at  the  Time  of 
fuing  out  the  2d  Aftion,  they  were  legally  attach 'd  in  the  iupcrior  Court. 

12.  He  who  rides  with  his  Majltr  to  London,  to  bring  back  bis  Horfe^ 
fhall  have  the  Privilege.     Br.  Privilege,  pi.  40.  cites  10  £.  4.  4. 

13.  If  a  Wan  comes  to  fae  Original^  and  is  arrefted  before  he  can  fue 
it,  he  ft  ill  be  examined,  and  Ihall  have  the  Privilege,  tho'  no  Plea  be 
pending.     Br.  Privilege,  pi.  i.  cites  27  H.  8.  20. 

14.  A  Clerk  of  B.  R.  was  fued,  after  the  Statute  of  21  Jac.  cap.  2^. 
in  an  inferior  Court ^  tor  a  Sum  nndtr  ^ I  And  Per  Jones  and  the  Chief 
Juftice,  a  Writ  of  Privilege  Ihall  be  allovv'd  i  for  tae  Statute,  being  ge- 
neral, never  intended  to  take  away  the  Privilege  ot  the  Clerks  ot  tnis 
Court.  And  it  was  Rul'd  accordingly.  Palm.  403.  P.afch.  i  Car.  B.  R. 
Armington's  Cafe. 

15.  A  Serjeant  at  Law  was  Plaintiif  in  the  Admiralty,  and  the  De- 
fendant there  mov'd  for  a  Prohibition  in  B.  R.  The  Court  doubted, 
Whether  Privilege  fhould  be  granted  in  Prohibition,  Ideo  Qusere.  Sid. 
65.  pi.  38.  Mich.  13  Car.  2.  B.  R.   Serjeant  Morton's  Cafe. 

Gilb.  Hift.  of      16.  If  a  Man  comes  to  B.  R.  as  a  Witnefs,  he  is  protected  euTido  y  »v- 
C.  B.  168.     dctindo.  PerTwifden.  Mod.  66.  Mich.  22  Car.  2.  B.  R.  pi.  13.  Anon. 
S.  P.  For 

fince  they  are  oblig'd  by  the  Procefs  of  the  Court  to  appear,  they  will  not  fufter  any  one  to  be  molefted 
■whilft  he  is  paying  Obedience  to  theirWrit. 

A  Witnefs  was  arrefted  as  he  was  attending  the  Court  to  giveTeftimony  in  a  Caufe.  Roll  Cii  J.  bid 
them  take  a  Superfedeas,  and  ordered  the  Parties  to  fliew  Caufe  why  an  Attachment  fliould  not  go  againll 
them  who  arrefted  hira.     Sty  995.  Mich.  1653.  Anon. 

If  a  Witnefs  coming  to  teftify  in  a  Caufe  in  Middlefex  be  arrefted  in  London  by  one  knowing  the 
Caufe,  he  has  no  Remedy  but  by  Habeas  Corpus  to  examine  and  deliver  him  thereby  ;  but  if  there  be 
any  Contempt  by  the  Officer  &c.  an  Attachment  may  afterwards  be  awarded  againft  him  ;  for  they  are 
aS  well  to  have  Privilege  as  the  Parties.     Keb.  220.  Hill.  1 3  Car.  2,  Vandevelde  v.  Luellin. 

S.  c.  5  Lev.  17.  In  Debt,  upon  a  Penal  Statute,  Qui  tarn  Sec.  againft  an  jdttm-ney 
?9^^  Z"^'  in  C.  B.  the  Queftion  was,  If  he  fhall  have  his  Privilege  or  no.?  And 
the^Wrir'^    ruled  upon  Demurrer,  That  he  IhvtJil  have  his  Privilege  in  a  Debt  ^'d  tain 

&c. 


Privilege.  5 1 5 


comb 


(D)     /n\7t  Peijom  fliall  have  the  Privilege. 

».  np  rp  €  Farmer  of  the   Chief  Clerk  of  B.  R.  fljall  llOt  IjtllJC  tljC 

X  ifJriWtesc  Of  tl)c  Court,  becaufe  ijc  lei  not  aup  Necciikry  At- 

tendanc  upon  Ijim.     p.  i.  Ja*  1^* 

2.  -STije  Steward  ot  his  Lands  fljall  Ijillje  tIjC  l.^n'tlilCffC*     20  Jp,  6.  Defendant 

26.   lj+  moved  to  be 

.  dilcliai-f^ed 

out  of  Execution,  bemp;  Steward  of  the  FJotijl.'old  to  Baroti  Bourk,  a  Fcreifti  Enioy.,  and  obtained  a  Ru!e  to 
fbcwCaufe,  wliicli  was  afterwards  difcliarged  on  hearint;  Council  on' both  .Sides,  it  appearing  that  thi 
Defendant  wvij ,r  TiMrfer,  that  \\z  refided  at  hji  own  Hot:fe\nK\\'iO\'i  Palace  Yard,  Weftminftsr,  ^r<f  that 
the  Envoy  a-as  at  flawver  at iheTime  of  theJnrJl.  Notes  in  C.B   zSi.  Hill,  9  Geo.  2.  Cain  v.  Molineu)^ 

3.  3Ta  ^an  bt  not  retained  with  a  Clerk  in  Chancery,  but  is  his  T'a:  Privi- 
Servant  to  do  his  Commands  only  at  this  time  of  the  Suit,  Wt  i)C  fijali  '^^'■"'  P'^'"*'' 

mt t'ot m'^mt*  1 1  tx  6.  s. b.  ^nxxt.  'Kot-Lu 

-    .  fhall  have 
Privilege,  butrhofc  who  are  y^«e»rfrfw<i  <rf //,e  O^tf,  or  upon  their  Afajler,  as  CooTce,  Butler  Sec  Per  Lit- 
tleton. Br.  Privilege,  pi.  S.  cites  54  H  6.  i^. yo-xi/jw^  ofthe  Chancery  iTiall  have  the  Privilcffc, 

contra  of  Servant  of  the  Servant.       Br.  Privilege,    pi.  9.    cites   54  H    6.  29 But  j^sv  Prilot, 

Servant  of  a  Goitlemaii,  who  is  Servant  oj  the  Chancery,  fhall  have  tlie  Privilege,  but  this  is  as  Servant  of 
the  Chancery,  and  not  as  Servant  of  the  Servant    Quxre.    Ibid. 

4.  Bill  lies  againft  Filazcr  of  the  Court.  Br.  Bill,  pi.  5.  cites    7  H. 
6.  36. 

5.  Debt  againft  H.  S.  who  caft  Superfedeas  of  the  Exchequer  as  Ser- 
vant  of  the  Lord  Cromwel,  Chanibcrlatn  oj  the  Escbeqner  5  Pole  faid,  that 
the  Privilege  extends  to  thole  "ivho  are  Jlccomptafits  111  the  Exchequer.^  and 
to  the  Ireafitrer  of  Eiiilandy  and  other  Jiffiji ants  oj  the  Court ^  and  thei;' fa- 
'iniliar  Servants  'H'ho  are  about  the  Offices  and  EufnieJJts  of  the  yiccoiint  in 
the  F^xchequer,  and  to  their  menial  Servants  dwelling  tu  their  Hoafe,  and  to 
no  others  ;  and  that  the  Defendant  is  Deputy  to  the  laid  Ld.  Cromwell 
at  Hull,  and  is  accountable  there,  and  not  in  the  Exchequer,  and  that 
he  is  not  a  Houlhold  Servant  of  the  laid  Ld.  Cromwell,  which  Newton 
agreed ;  For  the  Privilege  does  not  extend  to  the  Shepherd  nor  Carter,  but 
to  the  Servants  who  are  about  his  Perfon^  or  attendant  at  the  Cota-t ;  and 
they  demurred  upon  the  Superfedeas,.  becaufe  the  King  recorded  by  the 
^\'rit,  that  he  is  continual  Ser\  ant  to  the  Chamberlain,  and  Day  given 
o\er  to  the  next  Term,  and  there  he  call  another  Superfedeas,  rehearl- 
ing  him  to  be  menial  Servant.  Per  Newton,  by  the  Day  givenover,  the  Ju- 
rildiction  is  affirmed  but  tor  the  firft  Superfedeas  only  ;   Per  Portington, 
He  ^vho  pleads  a  Plea  to  the  Jurifdiolion  of  the  Court,  fhall  not  plead 
other  Plea  to  the  Jurifdiftion  after  ;  but  here  is  no  Plea  pleaded,  but 
Day  given  over  upon  the  Superfedeas  ;  thereibre  the  lall  Writ  may  well 
ferve.  Br.  Privilege,  pi.  16.  cites  2.2.  H.  6.  19. 

6.  If  the  Sheriff's  Bailiff' of  H.  who  comes  to  bring  the  Writs  to  Court,  and 
to  receive  others  ike.  be  arreftcd,  he  fliall  have  the  Pri\  ilcge  ^  Per  Little- 
ton.. Br.  Privilege,  pi.  24.  cites  9  E,  4.  47. 

7.  la 


5i6 


Privilege. 


7.  In  Debt,  Cdo'i,  Butler  of  Officers  of  the  Court  &c.  ihall   ha\e   Prin 
lege,  and  yet  Bill  does  not  lie  againlt  them  ;  For  they  are  not  bound 
to  be  attendant  in  the  Court  as  Officers   and  Attornevs  are    Er  Phvi 
lege,  pi.  42.  cites   iiE.  4.3.   Per  Littleton  J. 
Soofi  Prifi,!-      8.  .a)id  a  Maii,perHor  fliall  have  Privileges  Per  Choke  T    and  vet  Bl'I 
aJrf  "^hc     ^^'^^  "°^  •^'^  ^Z-'^mil  him.  Br.  Privilege,  pi.  42.  cites  11  E.  4.' 3.    ' 
iliall  have  Privilege,  and  yet  BUI  does  not  lie  againft  him.     Ibid. 

ney,'';r6-      ^-  ^^^  by^/^or,;.j.  0/  fi.  R    ^as  rejeaed  and  abated,  for  no  Attor- 
cit^e'slc."  rey  IS  there  of  Record     nor  his  Attendance  necellary  ,  But  otherwiie  it 
IS  m  C.  B.  For  there  he,  who  is  Attorney  of  Record,  Diall  have  the  Pri- 
vilege to  plead  by  Bill.  Br.  Bill,  pi.  24!  cites  i  H  7    12 

10.  G  brought  Debt  agawji  I.  WardeH  of  the  Fleet,  by  BUI  of  Privi 
lege,  and  he  would  not  appear,  and  the  Court  was  in  great  Doubt  what 
Remedy  the  Plaintift  had  to  compel  the  Defendant  fo  appear  ;  for  hi 
cannot  be  forejudged  the  Court,  becaufe  he  has  an  Inheritance  in  his 
Office.  And  alter  ,t  was  furnafed  to  the  Court,  that  the  faid  fT /^^^ 
;^..^.^Z<.o//./ifaidO#..  to  another  for  three  Years,  and  then  the 
Lctcrt  aw  clear  oi  Opinion,  that  the  laid  T'Jooiild  not  kave  the  Prr^lk^P- 
for  now  during  the  Leafe  he  is  not  Officer,  but  the  Lellee.  -.U  17? 
Trin.  29  Eliz.  C.  B.  Gittinfon  v.  Tyrrel.  "^ 

11.  A  Writ  of  Privilege  vvas  ligncd  by  all  the  Jufticesof  the  Court  of 
C.  B     for   G.  V.    a  Clerk  under  the  Cujlos  Brevum' to  free  htm  frmZ^' 
a  Soldier    reciting,  that  it  is  the  Cultom  and    Privilege  of  that  Court 
time  whereof  &c.  that  neither  the  Attornies  nor  Clerks  fliall  be  pre  ! 
fed  fot  Soldiers,  nor  chofe  into  any  Office  Sine  Voluntate  fua,  but  oLhr 

to  attend  the  Service  of  the  Court.  Cro.  Car.  11.  pi.  2  Trin    i  Car  r 
B.    George  Venable's  Cafe,  ^  ^  «-.ar.  C. 

^^oXc.  ,]f-  ^'^\™  ^p°"d  °i;^°°  1-  Defendant  pleaded  to  tke  Jitrifd^fuof, 
{hat  the  that  none  ol  the  Privy  Chamber  ought  to  be  lued  in  any  other  Court  at 
f -curt  con-  the  Suit  of  any  Perlon,  without  ipecial  Licence  of  the  Lord  Chamber- 
ceived  ,hc  lain  of  the  Houlhold,  and  that  he  is  one  of  the  Frwy  Chamber  Pfdnnff 
!^:^  Sr^'v'^'n  l^fP-dea^Ouller  awarded  ,  fo/the  Pitis  i  1  'a  d 
any  Colour,  ^.^^  Court  feemed  to  beoflended  With  the  laid  Plea.  Raym  34  Mich  la 
and  enquired  Car.  2.  B.  R.  Bamngton  v.  Venables.  ^*  ^ 

who  the 

Ccunfel  was  that  fet  his  Hand  to  the  Plea,  in  ordcf  to  punifli  him. 

Re^p.  Is^pf.  n  '^Z"  ^^'''/'/'Jl  ^T'^  f^''"-^  ^-  ^''^  ^-  A.  pleaded  Son  Aflault 

ingly;  But    m  C.  B.    The  PW;^  ^„;; W,  [^ecaufc  he  is   not  the  fole  Delcndrnt 
by  Tw.fden  hut  joified  With  another  ;  And  it  was  laid,  That  though,  where  the  Aftion 

iiZ'Ln  ''-T'  '"^  ''"r  ^'^"^^'  ^'  ^^^^^^  ^°^^  his  Prfvi'le^e  -he  b^  fu^J 
thejoinir;^'^'^  T'^'''  but  other  wife  where  the  Aaion  is  feverable.  But  'r 
appears  to  %c  ^^r  a  Sei  )eant  at  Law  has  no  Privilege  agamji  any  Court  at  Weftmtnlh^r  ■ 
by(^v>n,heforheniaypraaiceinany  Court    there,  and  fo  is  not  conl^ned    o  C  R 

W f^^  h'^  Privilege      Wh^r^u^on  a   Refpondeas  Ouller  wa's  awarded    2 

S  ct  "''■  &     l'"^*  ^  ^^  ^"■-  '■•  ^-  ^-  ^'"'^'"^  '-'  S'^  ^^^i^J'-"^  Scro-gs 


S.  C.  by 

Name  of 


ieamblftcn  b.  S>rrcgg0  $  al.  m  the  Exchequer  Chamber,  and  there  North  Ch  T  ^^\a  TUnr  I  , 
T}.lT°^u  '°A'  ^"  "n^onfoverted  Point,  that  a  Serjeant  at  Law  ftould  be  Ld  only  in  C  Rh'l^u 
that  he  IS  bound  by  his  Oath  to  be  there,  and  when  he  brings  a  V>^rit  of  PrivM.l     f  s  .!  ^     '"t' 

that  Court  and  no  other.     Pafch   ;o  Car  2   Curia  :,H.,;aJ,m1  V     nvile-ge,  it  is  always  out  of 


Privilege.  5  ^  7 


abate.  Ecp.  of  Pra<51-.  in  C.  B.  104,  105.  Trin.  7  &  S  G:o.  2.  Swain  v.  Girdlcf,  Serjeant  at   Law. 

Notes  of  Cafes  in  C  B.  280.  S.  C. 

14.  The  Clerk  of  the  Clerk  of  the  Crown  Office  is  not  privileged.  2  Show.  But  the 
287.   Pafch.  35  Car.  2.   B.  R.  VV^ard  v.  Lawrence.  9"'*  ""*'" 

Clerk  of  thi^ 
Pells  fliall  have  Privilege.  Cumb.  481.  Hill  10  W.  3.  Tonii  v.  Loyd. 

15.  It  nas  adjudged,    that   an  AttorHey's  Clerk  has    no   Privilege. 
Comb.  12.  Hill   i  &  2  Jac.  2.  Gardner  v.  Strode. 

16.  An  Aclion  v/as  brought  againll  a  Pothonotarfs  Clerk  by  Original. 
He  pleaded,  that  he  ought  to  be  fued  by  Bill ;  to  which  Plaintill"de- 
niurred.  And  the  Court  gave  Judgment,  that  the  Defendant  fliould  an- 
fwer  over.  Notes  in  C.  B.  280.  Trin.  7.  &  8  Geo.  2.  in  the  Cafe  of 
Swain  v.  Girdler,  Serjeant  at  Law.  Cites  it  as  Mich.  10  Geo.  C.  B. 
Rot.  360.  Baker  v.  Svvindale. 

17.  That  the  Del'endant  is  an  Attorney ^  or  a  Clerk  in  the  Courts  of  Cba;i~ 
cerj  01  Exchequer  &.L\  may  be  pleaded  in  Abatement.     R.  S.  L.  6. 


(E)     u-JgainJi  zvhom  he  iliall  ha^/e  the  Pri\alege. 

I-  TJT  tl  CDiin  be  coming  to  a  Court,  yct  if  \]Z  tlC  arrefted  in  another 
-*-  Cjurc  at  the  Suit  ol  the  King,  IjC  iljaii  Wit  W^Z  Ijtjj  [^nVUlCaC*    9 

If).  6. 44*  Curia. 

2.  Bill  oi'  Privilege  lies  not  againji  Attorney  and  his  Ferae;  lor  the  Bi-.  Bill,  pi. 
Feme  is  not  privileged.     Per  Littleton  and  Prilut.     Br.  PrivileLre,  pi.  0.  ^-  '^^}^\^  S" 
utes  34  H.  6.  25.  (.  J,   ^^^ 

if  the  Baron 
has  the  Privilege  of  Q'.iy.'cfr)',  this  lliall  not  lerve  for  hi.s  Feme.     Br.  Bill,  pi    59.  cites  3;  H.  6.  5. 


(F)      frhat    Court   iliall    have    the    Privilege,    and 

aga'tujl  id.'nt. 

I*  T  r  il  CBilH  coming  to  anfuer  an  Action  in  Bank  be  arrefled  in  the 
-•"'Maril-.airea,  JjC  fl.mU  IjilliC  tI}C  PrrOi!Cl\C  Of  tl)C  a3aulU  pet  tIjC 

otljcr  13  an  9.ncirnt  court.   4  'O-  6.  s. 

2.  So  a  C15an  lljall  ijaUC  tIjC  li'ritillCO;C  Cf  tIjC  Bank  if  Ije  be  arrell-  A  Mm  v,as 
cd  in  London.     4J3»  6,  84  t)+  impk.idni  in 

Bi'.nk,  and  rtf 
//p  Exirevt  vj.is  fucd  in  LovAv  hy  Jciicn  cf  Ddt  t:fo7i  tit  Ctiflom  of  L.  upon  a  Concefnt  folvcre,  and  had 
VN'i-ic  of  Privilege,  and  was  difinifs'd,  notwitlift.indiiisi;  that  it  was  alleged  that  it  was  a  cuftomary  Ac- 
tion which  does  nor  lie  at  Common  Law  ;  for  after  this  Action  determined  in  Bank,  he  may  have  new 
Adfion  in  London  ;  for  he  cannot  be  attendant  at  two  Courts  fimul  &  femel,  and  he  ivho  ti'vuells  in  London 
aid  is  a'refred  there,  where  he  is  impleaded  in  Bank,  fhall  have  the  Privilege.  Br.  Privilege,  pi.  50. 
cites  ;S  H  rt.  29. 

Ifa  Man  be /?//f/f.>(;'f</ w  nny  C  art  rf  If  eflmiiiftcr,  ^nd^fier  Is  a'lefted  and  candenined  in  Lcndcn,  where 
he  ought  to  have  the  Privilege  of  Weilminilcr,  he  fliall  be  di'mifs'd.  Brook  fays  ^:,'.re  inde  ;  for  the 
Plaintiff  cannot  have  Action  at  another  Time,  if  he  was  in  Execution.  Br.  Privilej^c,  pi.  44  cites 
16  E,  4.  5. 

3.  3[f  a  Clerk  of  B.  R.  bC  fued  by  Bill  there  for  Land  in  a  Corpora- 
tion, of  \\hich  the  Corporation  has  Conwfance  of  Pleas,  pCt  tljCP  fil-lll 

not  tjauc  Conufancc  of  tm  l^ica,  but  tljc  Dcfcnaniit  (Tialf  Ijabc  iji^ 
Pil\jilC!Te  of  oa.  E.  fovoiijmuifcip'fljail  be  tivawu  to  tlje  ^tixn^ 


c;i8  Privilege. 

caiicc  lu  3utcnoi:  Coucts*  '^x,  4  Jul-  "3.  B.  Biur^  Cafe  bp 

aBrownl  ■  //'i'f  an  Attorney  of  Bunk  brings  ;i  Bill  of  Debt  ugainlT:  the  Marllial 
266  S.C- of  The  King's  Bench  in  Bunk,  tljC  attOmcp  fljalUjiVJC  tljC  l^l'Ibllege, 

^^)V  ';■  nno  not  tlje  £i3aii]jai ;  foe  tljo  tOc  Coiut  of  "3,  E-  is  maic  Umijtljnti 
£akcr  V  m  Court  Of  X^.  pet  botlj  ate  ep,tial  m  antmuttp,  ^i?.  Cimc  UJijercof 
Lcnthai,     Oieuiorpi  anti  tljcretors  tijcp  being  in  A:qmh  jure,  tljc^outt  of 


',n  ^/f(.-;fy  0'  5  «  Lrcurlt  an  Action  (iTl-efp/j/s  ^unwjl  the  U ardcv  of  tie  Fleet,  who  can:e  into  C.  B. 
atddclircriiW  Advi.-eofiheCdurt,  lie  bcirg  an  Oflkci-  tliereof,  and  therefore  oupl.t  not  to  be  im- 
pleaded el  Ic  v.  hers  The  Court  iliid  that  bcciu'e  the  Plaintilt  has  aifo  his  Pnvilt-e  in  h.K.aswell 
as  the  D-fcndant  h?.th  in  C  B.  this  Equility  fliall  render  the  P.vrtics  it  Liberty,  ar-d  he  Ihall  have  tlie 
Benefit  of  his  Privilege  who  firft  begins  the  Suit.  And  lo  the  Warden  was  advis'd  to  anliver.  z  Lc. 
41.  nl.  56.   Mich.  ^oEIi7..   Povcy".  Caic  .,        u        i-       j 

The  Plaintiff  bein- an  Accountant  in  tlie  Court  of  Exchequer  by  Bill  there,  pray  d  to  be  relieved 
'irdnit  a  bond  rut  in  Suit  by  Defendant  in  the  Pettv-bag,  by  Keafon  of  his  Privilei;e  ;-.s  Ufher  of  the 
(Ziiancerv  the  Defendant  nleaded  his  Privilege  as  an  Cfftcer  of  the  Court  of  Chancery  The  Court 
•  .^reed  'tliat  vvh-n  hth  Parlies  arc  prrulered,  lis  PriiHesejJ-all  tf.ke  Phu-e  -wl  ofues  frjl .  And  that  iithis 
Cafe  the  5uic  in  Equitv  to  be  relieved  againft  tlic  Penalty  of  the  Bond  is  firlb  attacl.'d  here  and  it  is 
not  the  fame  Suit  with  that  at  Common  Law,  but  diftindl  from  it.  Jnd  it  was  farther  faid,  that  ;/ 
both  are  priviV^'d  Pt-rlbns,  and  the  .-JtleiMiice  of  the  one  is  more  re^iiifite  than  oj  the  ctr?er  (as  in  the  prin- 
ci'  al  C-i'e  it  is  ti^e  PlainrifF  here  bei^g  an  Accountant  in  this  Court,  and  entered  into  his  Account,  a.s 
bv  his  Bill  isane'>-d,  which  cannrt^becompleated  by  De-uty  or  Attorney)  n  iuch  Ca-e /.»  ?.vw/f,^e 
r  111  he  -  ',y-V  -^v  °y.- <  'voft  Cm4e  of  Privilege  ;  Et  adjornatur.  But  at  another  Day  the  Piea  was  over- 
iul-d,   and  ;n  In,unclion  granted  till  Anfwer.     Hard.  ■  ir.   pi.  2    Trm.  16.^.   B.>Ker  y.  Le.nhal 

If  a   Mn.}f^rrofC.  B.  brings  Attion  there  arrainjl  a  Mn.ijUr  oj  D.  R.   he  (hall  not   nave  .  rlVi.ege   of 

B  P     For  C  B"  has  the  eldeft  Seifin  by  their  iMinilkr.  B\-.    Privilege,  pi.  4^.  cites  ic  L.  4.  4. 

S  C    cited  •>  Brov.nl   267.  in  Cafe  of  Guy  v.  Sir  George  Reyncl. h  Urn  fiied  Phir.t  m  L:i.cto7],znd 

•ift-r'the  De'h.drM  hro^^ht  Writ  of  Debt  in  B^.r.k,  and  had  Privilege,  and  bec;.u!e  the  Plaint  was  elder 
than  the  Writ,  therefore  he  was  remanded,  and  had  Procedendo;  quod  not.i.  Br.  1  riv.lege,  pi,  5;. 
cites  8  E.  4.  17- 

5.  If  a  Prifoner  remains  in  the  Fleet  ly  Ccumaad  of  the  Barons  of  the 
Exchequer,  and  Action  is  bi ought  againlt  hiin  in  C.  E.  the  Coni^may 
command  the  Harden  cfthetJeet  to  Lring  hun  into_  Bank  to  anfwer.  Br. 
Judges,  pi  29.  cites  18  E.  3.  and  Fitzh.  Office  of  Court  16. 

6.  Trcfpafs  was  brought  by  A.  againlt  B.  who  was  returned  Nihil,  and 
the  Plaintiifcame  to  London  to  fne  other  Capias,  and  the  Defendant  arreffed 
him  in  L.  and  the  [Plaint  retum'd  in  Bank  by  Writ  of  Privilege,  and 
other  Plaints  and  Surety  of  Peace,  and  Attachment  of  the  Chancery  were 
recurn'd;  and  he  pray'd  to  be  difmifs'd  ;  and  he  who  demanded  the 
Peace  was  demanded  and  came  not,  by  which  he  Wifs  diimils'd  of  the 
Surety  of  the  Peace,  and  of  ail  the  Plaints,  and  not  of  the  Attachment, 
and  the  Defendant  made  no  Fine.    Br.  Privilege,  pi.  38.  cites  4  K.  4.  15. 

SeeCG)pl.  9.       7.  PrtvilegeofC.  B.  lliall  icvwc  in  B.  R.     Br.  Prisilege,  pi.  22.  cites 

9  E.  3.  35. 

Jndif  he  be  8.  If  an  Jccountant  in  the  Escheqiierhc  impleaded  in  C.  B.  the  Exchequer 
imple.ided      ^^^  {^^-^^  Superfedeas  to  them  to  lurccale.     Br.  Superledeas,  pi.  38.  cites 

ill  B.  R  _  r*      ,       -„ 

thole  of  the    9  l^-  4-   j7- 

JiU  Pw^e  Record  c[  Jccount  &c.  For  they  cannot  make  Superfedeas  to  the  King ;  for  there  the  Pleas 
are  held  Coram  Rege,  and  not  Coram  Jutticiariis  ;  and  he  fhall  be  dilmils'd.     Ibid. 

One  who  was  Receiver  Gcwral  if  the^Reiemies  of  the  Crown  in  the  Counties  of  W.  L.  &c.  be\n-  fued 
in  C  B.  brought  a  Writ  of  Privilege  out  of  the  Exchequer;  but  it  was  not  allowed.  D.  ~,zS.  pi.  9. 
Mich.  15  &  16  Eliz.    Hunt's  Cafe. 


thrOcfe^i-'   it  feems  that  Se//ms  of  the  Peace  Ihail  grant  Privilege  to  a  Man  arrelted. 

dant  was       2j._  Privilege,  pi.  35.  cites  2  H.  7.  4. 
Saker.hyU  .ir- 

10,  One 


Privilege.  ^ip 


r,>nt  of  the  Julhces  ol  Peace,    there  the  Defemljiit  JI't/I  anfvjer   avd  Jbali  make  Jttorvey,  and  Ihall   be  re- 
mitted to  the  JulUccs  of  Peace  ;  quod  not.i.  Br  I'rivilege,  pi.  41.  cues  S  C 

10  One  S.  was  impleaded i/t  C.  R.  ;it  tlie  Suit  o['a  Widow  in  an  A6ii(>n 
ot'Dcbt,  and  now  came  an  Injunclion  or  Writ  of  Privilege  out  of  the 
Exchequer,  reciting  the  iaid  S.  to  be  o;je  of  the  Grooms  oj  the  J^ieeu's 
Privy  Chamhcr^  arid  Keeper  of  the  Privy  Purfe,  and  {o  accountable  to  the 
Q_uccn;  and  that  they  do  not  hold  Plea  of  the  laid  Action,  but  that  tlic 
Plaintilf  iue  in  the  Exchequer  j  but  the  Writ  was  utterly  dilalluwed  by 
the  Court.     3  Le.  223.  pi.  300.  Hill.  30  Hill.  inC.  B.  Seek  ford's  Cafe. 

1 1.  Diggs  being  coiiiniicted  by  the  Court  of  Rcatic/ls  for  not  anfwering 
A  Bill  there  tor  the  liiine  Matter  for  which  he  had  a  Bill  here  in  Ch^a- 
eery^  had  a  Corpus  cum  caufi.     Toth.  219.  cites  36  Eliz.  Lib.  A.  fo.  539. 

12.  In  T^refpafs  in  B.  R.  the  Trefpals  was  laid  in  Coriiivall^  the  Dtfeu- 
d'<^«^  pleaded  in  Abatement,  andyl/ /o;-//-'  r/u' 67-.w/£;r  of  King  Edw.   x. 

.granted  to  the  Sta»!tery-Coiirt,  thereby  enabling  the  Stannery- Workers  to 
plead  and  be  impleaded  in  the  Stannery  Court ;  and  lb  prayed  the  Pri- 
vilege cf  its  being  tried  there;  upon  Demurrer  the  Court  agreed,  That 
it  one  be  here  /;/  Ciifiodid  jMarefhalli^  he  is  not  to  be  fetched  aixjay^  and  if 
being  in  Cuilodia  Marcichalli,  he  iLould  not  anfwer  here,  none  then 
could  have  Remedy  againll  hiaii  and  theretbre  he  was  inforc'd  to  an- 
fwer.    2  Bulif  122.  123.  Mich.  II  Jac.  Parke  v.  Lock. 

13.  One  that  is  privileged  m  Chcjhr^  has  Caufe  of  Action  agatnft  A. 
•who  inhabits  in  Cheper^  andagainji  B.  who  in  habits  in  London.  He  can- 
not {\xc  in  the  Exclieo^uer  in  Chelter,  tho'  he  is  privileged  there  ;  tor  by 
iuch  Means  ivs  miglit  bring  one  Ironr  Dover  to  anfwer  to  a  Suit  in 
Cheller.     Hutt59.  Grigg's  Cafe. 

14.  T^itK  ■SiVt  three  Sorts  of  Privilege  in  the  Exchequer,  ill,  as  Del  tori 
idly,  as  yJccoimtant  i  3dly,  as  Qj^'wr  of  the  Court.  Againll  the  lirll  of 
theie  any  Man  ^\  ho  hath  a  Ipccial  Privilege  in  another  Court,  as  an  Ol- 
ficer  oi  the  Court,  or  an  Attorney  tliall  have  his  Privilege  j  Becaufe  the 
Privilege  of  a  Man  as  Debtor  is  only  a  General  Privilege  ;  But  if  an  x'ic- 
countant  begin  his  Suit  here,  no  Privilege  Ihall  be  allowed  ellevvherei 
Becaule  he  h;is  a  Special  Privilege,  by  realonof  hisAttendance,  to  pais  his 
Account,  in  which  the  King  hatn  a  particular  Concern  ^  the  fame  holds  ia 
an  Oilicer  ot  the  Court,  if  he  commences  a  Suit  here,  no  Privilege  in  a~ 
nother  Court  lliall  prevail  againll  him  ;  Becaule  his  Attendance  here  is 
lequilire,  and  his  Privilege  here  is  attached  Hrlt  bv  commencing  his  Suit. 
But  where  the  Accountant  has  finillied  his  Account,  and  reduced  it  toa 
Certainty,  to  that  it  is  become  a  Debt,  then  he  Jiath  only  a  Privilege 
as  a  General  Debtor  has;  So  a  Servant  to  an  Omcer,  or  Minilter  of  the 
Court,  has  no  PrivileL.e  againll  a  privileged  Pcribn  elfewhere.  Per  Cur. 
Hard.  365.  Patch.  x6  Car.  2.  in  cne  Exchequer  Clapham  v.  Sir  j.  Len- 
thall. 

IS-  A  Member  of  the  Univerfity  of  Oxford  fued  in  the  Exchequer^ 
and  pleaded  his  Privilege,  but  it  was  not  allowed.  Elard.  188  Patch. 
13.  Car.  2.  Wilkins  V.  Shaelcrott. 

16.  Latitat  was  filed  out  of  B.  R.  again fl  the  Defendants  being  Commif- 
Jioners  of  the  Treafury,  thereupon  Sir  John  May  Pitifne  Baron  0/  the  Ex' 
chequer  come  into  B.  R.  and  Jhrzvcd  the  Red  Book.,  which  is  an  Ancient 
Book,  and  reckoned  a  Record  in  their  Court^  wherein  it  was  laid,  that  the 
Treaiurer  ihould  have  the  Privilege  of  being  fued  only  in  that  Court,  and 
the  Patent  under  the  Great  Seal,  which  conllituted  the  Defendants  &c. 
and  granted  to  themOlrice  ot  1  reafurer  of  England  was  produced,  and 
thereupon  they  demanded  their  Privilege  might  be  allowed,  and  alter 
fome  fJebate,  it  was  granted ;  And  tho'  it  was  urged,  That  there  ought  to 
have  been  a  Writ  ot  Privilege,  brought,  and  the  Shcrilf  would  have 
returned  Ibmewhat  of  it  &c.  \  et  the  Court  iaid  there  was  a  Record  to. 

iud«j;e 


520  Privilege. 


judge  upon,  aiid  accoidingly  allowed  ihe  Privilege.  2  Show.  299.  Pafch 
35.  Car.  2.  B.  K.  Lainpen  v.  Sir  Edwiird  Dcering  <k.al. 
At'oncyof  j.^  The  Oiks  wherein  Jnor/iejs,  Ojjiccrs  &c.  Ihall  have  rheir  Privi- 
A  \  Tt^^a'  leue,  ilTued  in  anocher  Court  are  to  be  underftood,  "ishenthe  Plaintiff'  can 
in  :;4l.  who  '■''■^'-''^  the  jaiiic  Keniedy  againit  the  Olhccr  ccc.  in  his  avii  Lourt^  as  in  that 
w us  indebtcvi  ivka'c  he  fius  hti/i.  G.  Hill,  ol  C.  B.  169. 

to  D.  in  40  1, 

D^  iiccordii'f,'  to  the  Cuftom  of  London,  ^^/.n/j  dtheMoney  in  theH.rinh  of'  L.tvho-xasB'sJttorney.  L  brought 
a  Writ  of  i'l-ivil:  g;c,  wliich  was  allowed  by  .ill  the  Court,  except  H:tr[)er  J.  beaiii^e  the  Attorney  was 
not  indebted  to  1).  but  only  by  Cullom  ;  And  t!ie  Privilege  of  the  Courts  nt  VVellininllcr  ought  not  to 
b;:  inipeaclicd  by  :i:iy  Cuftoni,  ai«d  the  I'rothonotaries  cited  one  tilnDCrI)lli'ii  (i.aff, where  fuch  Privilege 
V-is  allowed.  2  L^:.  i  56.  pi.  190.  20  Eliz,.  C.  B.  Lodge's  Cafe. 

T.  an  yJtlonie-y  of  Ji.  R.  cov€rm!:ted  to  piiy  Nevifoi!  zoo  \.  ivben  he  Jhciilil  m.ike  h:m  a  gciod7it!e  of  certain 
/.Midi,  purehaCcd  of  him.  N.  w.ide  a  Cowey.iiice  to  T  but  there  being  fome  hicumbi-nmes  vet  difchar^ed. 
.Some  Creditors  of  N-  hearing  ot  thi.s  Covenant  attached  the  AJoiiey  (according  to  the  Cullom  of  l''orcign  At- 
tachments in  T'!;  hard.';  as  a  Debt  ow  ing  by  him  to  N  whereupon  T.  fued  his  Writ  ot  Privilege,  and  the 
t!ourt  wa.s  moved  in  Behalf  of  the  Creditors,  that  this  Wr'tof  Privilege  would  not  lie  in  B  R.  bccaufe 
the  Plaiiitills  in  the  Shenti's  Court,  w  ho  v. ere  Creditors  of  N.  could  haue  7:0  Remedy  acr.iinfl  T  in  B-  R.  or 
elfi'u.-here,  cut  of  the  Sheri_^s  Court,  bccaufe  this  was  a  cuftomary  VN'ay  oi  Proceeding  tliere,  not  wan-anted 
by  theCJonimon  Law  ;  nor  can  any  Aftion  at  Common  Law  be  brought  in  luch  Manner  ;   And  forthofc 

E.ca1bn.s  the  Piivilrge  wasdifallowcd.  i  Saund  67.  Pa'ch.  19  Car.  2.  Tu'-bill's  Cale ..S.  P.  Gilh.  Hilh 

of  C.  B.  169  and  fcems  to  intend  S.  C.— Sid.  562.  S.  C  by  Mame  of  {nia''kiU0  ll.  li'tlVJEf,  alias  Turbill's 
Cafe  accordingly,  And  that  if  fuch  Privilege  ihould  be  allowed,  a  Debtor,  by  putting  hisEftate  into  the 
Hands  of  an  .'\ttornev,  would  bar  hi.^  Creditors;  And  tho'  1.05gt'£  Cfllf,  2  Le.  156.  was  infilled  Ujion, 
yet  the  Court  pL.id  no  Regard  to  it,  but  dilallowed  the  Privilege. 

If  a  Writ  of  Entry,  or  other  real  Action  be  brought  againll  an  Attorney  of  B.  R.  he  cannot  plead  his 
Privilere  ;  Becaufe,    if  this  fhould  be  allowed,  the  I'laintiti   would    have  a  Right  without  a  Remedy; 

For  B.R.  hath  not  Cognisance  of  Real  Adions,  G  Hill,  of  C.  B.  idc) So  if  an  .-Xttorney  of  C.  B. 

he  llied  in  an  Appeal,  he  fhall  not  have  his  Privilege,  for  his  own  Court  his  not  Conufance  of  this  Ac- 
tion, and  by  this  Protection  he  fliould  go  unpuuiflied.  G.  Hift.  of  C.  B.  ijifi. 


(G)  Of  the  Chancery,     [and  of  other   Courts.]     In  njohit 


Qf. 


s  it  Ihall  be  granted. 


Vern.  246.  I.  jjf  flit  Aclion  tc  tH'CUgllt  iigninit  2,  \\ hereof  one  is  Clerk  of  the 
Tr.  16S4.  1  Chancery,  loijO  OUljljt  tO  ijilllC  tijC  Pl'lUlICfie,   ^tt  if  the  Aftion 

FmSair  '^='""°^  b«  fevered,  tljc  Cicck  fljiill  iiot  Jjn^c  }j!5  { i)n\)i!cn;e,  ai5ccaure 
sp  as  to  ti)c  otijcr  cannot  be  fucD  in  tljc  Ci)anccrp,  nuD  fa  tlje  i^artp  fljoiUD  be 
the  Privi-    luitijout  ixcnictJD,  if  it  fijoulD  'az  gtnntcD  far  botI>  14  D.  ^'2.1.  be  ati= 

lege  of  the      nUttCQ*  20,  l\  6.   32.  b. 

Ex-chequer. 

• ^_S.  P.  Cary'sRcp.  96.  Eaft  &  Scudamore  v.  Bittenfon  Si  Valence. S.  P.P.  R.C.  2S9.  —  S  P. 

Curf  Cane.  49 ; . 

Br,  Privi-  2.  As  in  Debt  ngaiua  2,  if  tljc  one  oualjt  to  babe  tlje  pribileuc  oftljc 
difs's  c"'  Cbancecj),  if  Ije  ban  been  fiicn  alone,  pet  be  fljall  not  bane  it  in  tbio 
per  Hall.  -  Cale,  becaufc  tljcDutj?  i.s  intire*  i^t).  4. 21  b. 

Debt  agaiiijl 

2  Executors,  the  cue  appeared,  and  the  other  made  Default,  and  Writ  of  Privilege  of  the  Chancery  was 
caft  after  that  the  Plaintiff  had  counted  againft  him,  and  it  wasdifallowcd,  bccaufe  fo//.  the  Executors 
cajihot  be  fued  in  theChaticery,  and  yet  of  Executo.ss  he  who  firll  comes  by  Dilfrefs  fhall  anfwer,  and  here 
the  one  came  without  the  other,  and  the  Plaintiff  counted  againfl  him,  and  yet  the  Superfedeas  difal- 
lowed.  Br.  Privilege,  pi.  iS.  cites  22  H.  6.  ^6. 

^""y/^^-^^       ^-  "^be  fame  LatO  of  a  Confpiracy  againit  2,  whereof  one  15  fl  Cletlt 

^^^kj^  Of  tlje  Cljancetp*  *  14  Ip.  4-  21  b.  1 20  D*  6, 32,  b» 

*  Br.  Privilege,  pi.  12.  cites  S.  C. f  Br.  Privilege,  pi.  7.  cites  S.  C.  &  P.  by  Markham. 

Deciest^n-  4.  But  if  an  aetion  be  bi'oitn;bt  ni\aina  2,  anti  the  Aaion  mx\  be 
r&  S-  ^''''•^'''^^'  ^^'^^'^^^  i^'f'J^  '^'^c  be  a  €\zxk  of  tbe  Cbnnccrp  be  flja!!  babe"  tbe 

Jedeasof  de  li^tt^lleCe.  14  ^)*  4-  21- 

E\che  ;ner 


Privilege.  i-of 


Exchequer  was  iflaed  fortli  for  one.  Per  Newton,  the  Superfedeas  (liall  be  allowed  ;  For  he  may  Cue 
againft  2  here,  and  againft  the  5d  in  the  Exchequer.  Browne  (aid,  That  in  the  Siiperfe.te.u  is  Kxceftis 
c;i(x  WW /(J?2^^«w^  and  therefore  the  Kinj^  iTiall  have  the  Moiety.  And  per  Newton,  thii  i»  VielUuid,  dnd 
therefore  we  will  advill-.  Br  Privilege,    pi.  14.  cites  n  H.6.  22. 

5.  As  if  a  Trefpafs  bc  hxm^t  ngainft  a  Clerh  of  tijc  Cljanccrp  anD  *  ^n  rhc 
nnutljcr,  tijc Clerk fijall l)ii\jc  ti)cl>)nviiicn:c,  jfor  Ije  \\m be fiico  ttjcrc, "") '"  ^?''' 
niiD  m  otljcc  at  tlje  Common  law.  *  14  t),  4*  21  Dubitatur,  20  D.  Prilu"-^; 

♦  32-  •J-  pi.  12.  cire<i 

S.  C  bvH.ill. 
—  Br  Brief  pi.  i^t.  cues  S.  C.  per  Kill,  that  the  V\  rit  fliall  abate  again  It  the  other;  Cut  th.u  it  vva> 
held  Contra  ;4  l\.  6 

In  Trefpafs  againft  two,  where  the  one  is  Clerk  of  the  Chancery,  and  he  cafts  Superfedeas;  it  fiiall  no: 
be  allowed  tor  the  one  nor  the  other.   Br  Privilege,  pi.  9   cites  54  H.  6.  25. 

Treff.tfs  was  brought  againfl  B.  <rw  Officer  i>f'  the  Chancery  niui  ^  others.  B.  Call  his  Pr'ivileae,  and  it  was 
liif.tllo'u.'fii,  tec.ztije  the  others  are  jcir:ed  liith  him,  and  they  are  not  there  pleadable.  D  57;.  pi.  ;-5,  Marc- 
cites  Hill,  42  Eliz.  C.  B   Bacon's  Caie. So  in  T're/pnfs  ^i?<i;>.'/?  C.  atui  oilers,  C.  pleaiie,!  his  Prni- 

I'ge  ns  Cerk  to  one  of  the  Prothtiotaries  of  C.  B.  Plaintitt  replied,  that  tliis  Trefpals  was  doui.  by  them  jomtlv 
and  that  he  had  taken  out  an  Original  againil  them  all,  and  that  this  Declaration  againll  C;.    was  upon 
that  Original,  and  that  he  iHll  pruiecuted  the  relt,  to  which  the  Dcfeindant  cicnnined,  and    Iudpir,enr 
was  given  (Twilden  and  Jones  only  prclent)  Quod  rt-ipordeat  ouHer  ;   For  C  bei)ic  jouied  iiitb  others  in 
the  Action  j7m//  h.vie  no  Priiilege.  Vent.  29S.  Mich.  2S  Car.  2.  B  R.  Molj  n  v  Cook  &  al 

6.  Jf  A.  lie  arrefted  at  the  Suit  of  B.  upon   a  Latitat,  ajiD  3.   10  5C- 

tamen  lit  l'i5nron  for  Def:iu!t  of  T5ail,  ann  after  3.  removes  hunicu  in 

B.  K.  antJtijerCtljC  Plainufi' declares  agaiiilt    iiiin  In   Cuitodia  Maref- 

chaiii.  3fa.be  a  CIcrkof  tbc  15m\\  be  Hjali  baue  W  i^niJilcffc  upon 

\)\p  Plea,  that  he  is  a  Clerk  accendancto  oneot  the  Prothonotaricd  ul  B. 

tbo'  be  be  actuallD  in  Citftotsia  C^arcfcijaUu  X^ccaufe  be  corner  tberc 
upontbis  suit.  C^icb»  n  Car.  Od,  H»  between  Rcc-e  andjaay. 
per  Curiam.  qp  m 

7.  But  it  a  CICrl?,  or  Attorney  oFBank  be  JU  CUffOlSia  03arercbiliU  Hift.  ofci. 
at  the  Suit  ol  A.  and  alter  B.  declares  againlt   him  in  Cuitodia   Marel-B.  i -2.  cites 

chaiii,  bedjiillnot  ba^e  bis  15n\3ilcn"c  apind  03.  ODCcatue  be  ticcd^'^-t^'i''"'- 
notconierbcreattbc€^uirofx%  but'io.  ncclarcs  asauuhbim  coi= '"■'';;^7"'^ 
Intcrallp ,  Jror  be  i.o  trutp  m  to  bini  Jn  Ciiifotiia  £^arcf:baau  Ci3i:i}.  p.Tvil'e  !!!* 

1 1  Car.  15.  U.  ni  Rce-^e  and  Jcucy's  Cate.  PCt  CUriaUI.  theSuit"ofA. 

he  can  no 
longer  attend  as  an  Attorney  of  the  other  Court,  but  is  fi\-ed  in  the  King's  Bench,   and  therefore  cunnct 
by  the  !-uppo(ition  of  the  NecelTuy  of  his  Attendance  oull  the  the  PliintitKof  his  Aftiun. 

Jf  the  Clerk  is  irous,ht  in  at  tie  Suit  of  A.  upon  Bail,  this  doth  not  hinder  him  from  claiming  his  Pri- 
vilege ;  Becau'e  he  /  aA  no  Opportunity  of  doine  it  hejcre,  ard  tlien  it  is  abfurd  to  !;iy,  'Chat  he  fli.iU  not  have 
Privilege ag.iinrt  B.  But  if  the  Privilege  had  been  i-.aiied  as  to  the  frj!  yJSH.n  it  would  have  been  waived 

as  to  tie  2d  alio.  I .  v*-a!k.  z.  pi.  ^.  Hill  S.  W.  -    B.  R  Jones  v.  Rodiner. . And  it  is  a  Waiver  i.i  all 

other -Aiition.s  commenced  in  that  Term.  Carth.  ^yS.  Bands  v  Bodinner,  S  C^. 

I.i:t  if  an  Attorney  of  C.  B.  is  hrcii/ht  irto  B.  R  at  the  Suit  of  an  Jttoniey  there,  v;li,h  is  an  Epoppsl  to 
J  efei.clart's  Priiilere,  ever,  in  fuch  C'afe  in  other  Adtiors  commenced  ag<in(l- him  in  B  K.  in  the  fan; 
Term,  he  flu  11  be  ouflcdo'l-.is  Priv;'cj;e  ;  Eccau'e  the  Juriididion  of  i-i  R.  was  attached  apon  him  in 
the  firft  Action.  Per  Cur.  Carth.  --S.  m  the  Cafe  of  fands  alias  Jones  v.  hJodinner. 

But  Paf.h.  :  Ann  where  an  Aitionvas  bn.tightag.iinftan.^/^oiv.'fj  ot  C  B  who  r-xas  irCifJlody  of  lie  Var- 
pal  ol  the  icing's  Berch,  at  the  tuit  of  arother,  ai-d  in  this  A<fti<;n  they  declare  ngiinit  hijn  In  Cullodia 
jMarc'cl-alli,  ard  the  Deferdant  i  leaded  his  Privilege  as  an  Atrcn-ncy  ot  C  B  the  C' uii  diieCted  that 
the  Dcfet  da-t  fliculd  beremt  ved  by  Haleas  Corpus  to  the  Con  men  Pleas,  ard  that  an  AClicn  fliould  be 
brought  againft  him  there,  ii  Mod.  i6;,  i6S.  'J  urton  v.  Prior. 

8.  Trefpafs  againfl:  the  Baron  and  Feme,  the  Bayou  caft  Writ  of  Privi-  And  the 
lege  j or  him  and  bis  Feme,  iecaufe  he  wjs  Servant  of  the  Chniicellor;    Et  per  '''"',^^;''^. 
tot.  Cur.  it  was  difallov/ed.  Br.  Privilege,  pi.  9.  cites  34  H.  6.  25.  tiie  famc*^ 

.     .     ,  Ycar,hjl.^v 

And  there  it  was  adjourned,  and  after  the  princip.il  Cafe  of  th  e  Raron  and  I''emc  was  adjudged  a^ainff  th« 
1  cfendant,  and  he  awarded  toanfwer,  becauii:  the  Feme   fhall  rot  have  the  Privik-ge,    uiid   tiierefire: 

Barm  fhall  rot.  Ibid  Br.  Bille.  pi   2.  cites  S.  C.  S  P.  Toth.  2i-.  cites   52  Eli?,.  Baiklev  v. 

Hullev. S.  P.  For  her  Attendance  isnot  requilite  in  his  Court,  nor  is  flic  impleadable   here  in  tJi; 

I'etty-Bajj;  ard  bcndcs,  \\\\c\-c  iX.c  Cor>:rfon  La-a-  aid  a  pm  ate  tij!  cm,  or  Piivilcge  cnccuntcr  o' e  an  .■- 
ti-er,  the  Cxinimon  Law  fliall  have  the  Preference;  .And  thcteiorc  it  is,  T  lia«  where  an  Action  n 
br.ught  .igainrt  2,  one  of  thtmct'.lv  having  Privilege,  his  Privilege  flia'lrot  be  allowetihim.  P.  R.C. 
2yo  —  Curf.  Cane.  49  "•  ^  C. 

6Q.  -J. 


^22  Privilege. 


So  in  Trel'i-iars  in  B.  R.  ntiaiiij}  Kann  and  Feme  jcr  T'rcfpafi  done   /;;'   tlie  Finie,  the  Barov  prayed   liii, 
Privileire,  being  an  (officer  of  the  Exchecjuer,  and  tothis  I'urpofe  tendered  to  the  Court  his  V\  lirof  Pri 
vile-'e";  'EuiKWishctcdifallcwed;    For  the  Baron  is  only  joined  for  Conformity,    and  they    cited  the 

Booic  of H.  6. and  Lord  Dyer  30;  a.  accordingly  ;  But  the  Court  gave  Day  to  hear  Counfel, 

2  Sid   15-  Pafch   1659.  Anon. 

So  in  Deht  agniuli  .1  and  his^Vij'e,  as  Executrix  to  Hie  Debtor  &c.  the  Husband  comesin  upon  the  Ev- 
ident, and  prays  his  Privilege,  as  Servant  to  the  Lord  Keeper  of  the  Great  Seal ;  But  per  Ckir  he  fhall  not 
have 'it,  becanfe  the  Wife  was  joined  with  him  in  this  Adion;  and  fhe  cannot  have  any  Privilege. 
Koy.  6S  EtheritTgton.  V.  Afliton  &  Ux.  — —  S.  P.  where  a  Clerk  in  Chancery,  and  his  Jf'ife  Executrix^ 
were  fued  in  C.  B.'thc  Privilege  was  difallowedby  all  the  Juftices,  becaufe  ilie could  not  have  the  Pri- 
vilege, and  therefore  he  could  not  Godb.  10.  pi.  i  ;.  Mich.  24  Eliz    Pole's  Cde.- And  it  i.s  there  faid 

to  be  cidjudgcd  by  the  wliole  Court  accordingly   in  54H.  6.  29.  &  ;5  H.  6.  ;. D.  577.  pi.  50.  S.  C. 

by  Name  ot  Pouel's  Gale.  —  S.  C.  cited  Vcnr.  299  in  the  Cafe  of  Molin  v.  Cook  &  al. 

So  where  A.  Clerk  to  a  Rctiicmhrancer  in  the  Exchequer  had  married  M.  Widow,  and  Executrix  of  one  J. 
and  i)M;(?/>/ .Vc7.v»ofDebt  by  Privilege  of  the  Exchequeragainft  one  foi-  v.  Debt  due  to  thclefiator,  be- 
caufe the  Ciule  accrued  for  Debt  due  to  the  Executrix,  wo  PWw/f^e  isgranlaEle ;  perCui".  Sav.  20.  pi.  49. 
Palch.  24  Eiii.  Low  e's  Cafe. 

So  where  flie  p.  In  Trcfpafs,  Exigcfit  was  awarded  againjl  the  Baron  and  Feme^  and 
hrctujr.ed  ^  ^c  rendered  hcrfilt  to  the  Sheriff  and,  as  Jhe  ivas  comings  jhe  was  arrcfted 
For  ftc"^ '  ''"  London  upon  Plaint  againft  her  and  her  Baron,  upon  the  Cnficm  of  Feme 
cannot  be  file  Merchant,  of  which  the  Plaintiff  cannot  have  Remedy  at  Cominon 
Priibner  Law  ^  Buc  Qucere  thereof ;  and  the  Feme  notwithftanding  this  was  dif- 
^\  ^^'°j..  jnifFed  i  But  per  Choke  in  fuch  Cafe  of  the  Cultonij  where  the  Party  ar- 
mu^'sc  it-  '^'^fi^^  ^s  in  luch  Plight  that  he  may  make  Attorney^  in  th«  Adion  in  Bank, 
mel.  Ibid  —  he  fhall  be  remanded  to  London  ;  But  in  this  Cafe  Ihe  came  by  Reddidit 
jnd^  Man,  fe  upon  Exigent,  and  therefore  ought  to  have  the  Privilege  ;  For  Ihe  can- 
who  was       jjQ^  jnake  Attorney.  Br.  Privilege,  pi.  22.  cites  9  E.  3.  4.  35. 

cutld'iied, 

and  vcKi  to  .,    .     ,      ,    j   ,  •     n  •   •,  t.  • 

Calais,  and   c^me   hack  to  fiie  his   Pardon,    and  was  arrelted,    he  had  his   Privilege.      Ibid. So 

cfoucv-hoisouiUvied,  and  comes  to  fne  ii'rit  of  Error,  and  is  arrefted,  he  fiiall  have  the  Privilege  of 
the  Court  where  the  Outlawry  is,  viz,,  of  C.  B.  and  the  Arreft  was  in  B.  R.  and  yet  the  Privilege  was 
allowed.  Ibid. 

10.  A  Man  was  arrefied  in  L.  and  after  came  a  Latitat  out  of  B.  R.  hy 
'.^hich  he  was  arrejied  again  ^-xnA  the  Arrell  by  the  Latitat  was  diicharged, 
becaufe  he  was  impriioned  before  by  the  firll  Arreft,  and  he  cannot  be 
imprifonedin  2  Courts  Simul&Seniel.  Br.  Privilege, pi.  24.  cites  9E.  4.  47. 

1 1.  A  Man  brought  Deht  in  Bank,  and  after  brought  A6tion  of  Debt  in 
London  jor  the  fame  Sum,  and  arrelted  the  Defendant  there^  and  he  came 
row  by  Habeas  Corpus,  and  prayed  to  be  diicharged  ;  Per  Yaxley,  the 
Plaintiff'  IS  nonfuited  in  the  Action  here  in  Bank. ;  &  per  tot.  Cur.' this  is 
not  material,  becaufe  he  had  Caufe  of  Privilege  at  the  Time  of  the  A£lion 
commenced  in  London ;  Quod  nota  ;  But  where  it  appears  hy  Examination 
that  the  Suit  in  Bank  was  hy  Covin,  there  he  Ihall  not  have  Privilege  j  and 
where  the  Plaintiff,  who  has  Suit  in  Bank,  impleads  the  fame  Deiendant 
in  any  other  Court  for  this  or  other  Caufe,  he  lliall  make  Finei  per 
Fineux  &  Reade.  Br.  Privilege,  pi.  19.  cites  24  H.  7.  6. 

S.  C.  cited         12.  A  Man  brought  AS  ion  in  Bank,  and  at  the  Pliiries  Capias  he  and  his 

Godb.  10.  pi.  ft-;«e  -were  arrejied  in  a  bafe  Court  coming  towards  Wejitninjler ;  and  becaufe 

El"  ^^in^  ^^  "-^^  Baron  had  Privilege,  therefore  his  Feme  lliaJl  be  in  the  fame  Condi- 

Bole'sCafe.  tion,  and  fo  both  had  Privilege  ;  and  yet  the  Suit  in  the  bafe  Court  was 

But  Dyer      for  a  Debt  of  the  Feme  before  the  Coverture  ^  Quod  nota.     Br.  Privilege,  pL 

faid.  That       2.   cites  27  H.  8.   20. 

the  Reafon 

was   becaufe  the  Wife  came  in  Aid  of  her  Husband  to  follow  his  Suir. 

13.  The  Defendant  appeared  upon  a  Subpoena,  and  anfwered  the  Plain- 
tiff's Bill,  and  after  attended  upon  the  Lord  Keeper  for  a  Adatter  in  Contro- 
verfte  between  him  and  one  Ellen  Wryne  ;  and  in  the  meanl'ime  was  arrejied 
in  London  at  the  Suit  of  one  Anthonj'  Brisker,  contrary  to  the  Order  and 
Privilege  of  this  Court.  It  was  ordered.  That  a  Subpoena  of  Privilege 
be  granted  to  the  Mayor  and  Sheriffs  of  London  lor  theDifcharge  of  the 

faid 


Privilege.  523 


faid  Arreft.     Gary's  Rep.  6i.  2  Eliz.  i;  58.  Richard  Ducton  PJainti/f  v. 
William  x'^Ierley  Delendant. 

14.  It  any  Officer^  Clerk^  or  Attorney  of  any  of  the  4  Ordinary  Courts, 
who  ought  to  be  Attendant  to  the  Court,  he  arreficd  in  London,  or  other 
Place,  in  Tunc  of  Attcndancy^  he  jball  have  a  VVi  it  oi  Privilege,  ivith  a 
Politive  Super/yeas  therein,  dire£ling  the  PlaintiM'quod  Sequatur  in  Curia 
Ubi  &:c.  Ji  Voluerit,  where  he  may  have  the  Remedy  of  his  Suit  as  weii 
as  elfen  here  >  In  which  Cafe  no  Procedendo  lliall  be  awarded  to  the  inte- 
rior Court.  Otberwifc  it  is  ^vhcre  the  Party  arre/ed  has  Privilege  by  reafon 
■<)f  ■Suit  depending  /;/  the  f/perior  Court,  by  him  or  agautjl  him,  and  this  is 
the  Caul'e  only  of  his  Privilege.  Note  the  Divcrlity,  by  all  the  fulti- 
ces  and  Prothonotaries  oi  both  Benches.  D.  287.  a.  pi.  48.  Hill.  12  £1. 
Anon. 

ij-.  The  Defendant  got  a  Writ  of  Privilege  as  Servant  to  the  Lord  Cui-f.  Cmc. 
Keeper,  and  remosed  2  leveral  Suits  againlt  him  by  the  Plaintitfin  Lon-  V)<>':'a^-  iS. 
don  i   forafmuch  as  the  Lord  Keeper  declared  in  open  Court,  That  the  '•"'^^  ^'  ^* 
Defendant  is  not  /tow  his  Servant,  theretbre  ordered,  That  the  faid  2  fe- 
veral  Cuules  be  renianded  into  London,  and  the  Defendant  not  to  be  al- 
lowed the  Privilege  of  this  Court,      Cary's  Rep.  146.  21  Eliz.  Warner 
and  Clerke  v,  Maynard. 

16.  An  Attorney  at  Law  join'd  with  another  in  A6lion,  thereby  to  avoid 
a  privileged  Man  in  Chancery  ;  the  Suit  was  llay  d,  and  the  Privilege 
allow'd.  Toth.  220.  cites  28  Eliz.  fol.  247.  Pepvvell  v.  Goldlhiiths 
London. 

17.  P.  was  arrejled  by  Procefs  out  of  B.  R.  and  after  the  Arrcil  procured 
himfelf  to  be  made  an  Attorney  of  C.  B.  and  after  he  pleaded,  'That  Die  iinpe- 
tratiomsBilix,  he  was  an  Attorney  of  C.B.  and  pray'd  his  Privilege.  l"he 
Queftion  was.  It  the  Privilege ihould  be  allow  d?  for  a  Privilege  which 
accrues  pendente  lite  ihall  not  be  allow'd,  and  here  the  Plea  is 'true,  but 
there  is  Ipecial  Matter  to  avoid  it ;  And  Ley  Ch.  J.  demanded  if  he  was 
Attorney  at  the'Time  of  the  Bail  put  in,  that  being  the  material  Point;  for 
'till  then  no  Writ  can  be  put  in,  and  by  the  putting  in  oi  Bail  he  is 
in  Cuftodia  Marefchalli.  2  Roll.  Rep.  432.  Trin.  21  Jac.  B.  R.  Goidf- 
boroiigh  V.  Perryman. 

18.  Lord  D.  Tenant  in  Tail  of  a  Foreft  rendring  Rent,  Reverfion  to 
the  King,  exhibited  an  EngU/b  Bill  againfl  a  Clerk  to  the  Kcgiflcr  or  the 
Chancery,  to  dsfcover  if  fiich.  Lands  were  of  the  Fcrcji.  Dctendant  pleaded 
the  Privilege  of  the  Chancery  and  the  Letters  Patents  ot"  the  King,  bv 
which  he  granted  to  the  Regiiler  to  be  fued  in  no  other  Court.  And  \t 
was  Ruled  bv  all  the  Court,  That  in  this  Cale  the  Privilege  Jball  not  aid 
the  Clerk^  but  that  he  ought  to  anfwer  over.  And  their  Reafon  was,  be- 
caufe  the  Reverfion  being  in  diverfe  other  Things  fo  privileges  the  Pof- 
fellion,  that  it  is  as  the  Polfeifion  of  the  Ki-ng  ;  and  alio  the  Privilege  is 
granted  to  the  Regiiler  himfelf,  and  not  to  his  inferior  Clerks.  Lict.  - 
R.  97.  Trin.  4  Car.  inScacc.  Lord  Derby  v.  a  Clerk  to  the  Regiiler  of 
the  Chancery. 

19.  A  Suit  in  Chancery  was  againll  feveral  Defendants.  One  of  the 
Defendants  died.  The  Survivors  pleaded  the  Privilege  of  the  Kscbeqiier.  Euc 
becaufe  this  Suit  was  joi-nt  at  firll  againll  the  Deceas'd  and  the  otheis, 
and  lor  any  Thing  appearing  he  had  no  Privilege  in  the  P^xchequerj  fo 
that  the  Court  ot  Chancery  being  lawiiiUy  polfelled  of  the  Plea,  his 
Death  ought  not  to  give  any  more  Privilege  to  the  other  Delendants  to 
draw  the  Caulc  from  this  Court  than  they  Ihould  ha\e  had  at  the  Begin- 
ning, or  while  he  lived  ;  and  therefore  his  Lordlhip  did  adjudge  the 
Delendants  Plea  to  be  infufficient,  and  ordered  the  Defendants  to  make  a 
dire£t  Anfwer  to  the  Plaintiff's  Bill  in  this  Court,  i  Chan.  R.  69,  70. 
9  Car.  1.  fol.  135.  Lake  v.  Philips. 

20.  The  Delendant  was  arretted  at  the  Plaintiff's  Suit  as  he  came  about 
putting  in  his  Anfcer,  and  imprifon'd,  and  after  feveral  other  Actions 

chir^cil 


524-  Privilege. 


charged  upon  him,  ^^ere  ull  dtfchiirgeciy  ic  being  done  in  the  Breach  ot 
the  "Privilege  ot  this  Court.  Ch«in.  Rep.  9^.  11  Car.  Alubury  v. 
Troughton. 

2i.~A  Bill  Wiis  brought,  fecting  forth.  That  R.  being  arretted  and 
imprifon'd  at  the  Suit  or  C    upon  mean  Proccls,  and  alter  made  an  Ef- 
f.ipi',    and  upon  a  trelh  Purfuic  being  raakin.,  is  in  Cullody  as^ain  ;  But 
the  laid  R.  making  it  appear  to  this  Court,  Ti.:it  he  bad  a  C.iuje  deundmg 
here,  and  be  anendtng  the  jame^  tins  arreftid  and  daj:r.:d^  contrary  to 
the  ancient  Privilege  ot"  this  Court  ;  whereupon  this  Court  ordered  the 
BaiiirF,  who  lall  took  him,  to  be  commitred  to  the  Fleet  tor  ret'uling  to 
difcharge  him.      The  Court  ordered  Meynel  and  Sterling  SheriHs  of 
Middlelex  to  difcharge  the  faid  R.  out  oi  Cullody.     The  Sheritis  ac- 
quainting the  Court,  That  the  Cale  is  as  aiorelaid,  and  that  the  laid  C. 
threatens  to  bring  an  Action  of  Efcape  againlt  the  Sherins,  the  Court 
again  ordered  the  laid  Bailiif  to  be  committed  dale  Priloner,  and  that 
toe  Sheriits  ihould  tonhwith  difcharge  the  laid  R.  out  oi  Cuitody,  and 
thiit  a  ^\'^it  oi  Privilege  be  awarded  in  that  Behalf^  whereupon  the 
Sheriiis  dilcharged  the  laid  R.  and  thereupon  the  laid  C.  brought  his  Ac- 
tion againil  the  Sheriiis  for  the  Efcape,  and  would  enforce  t:ie  SheriHs 
to  p.iv  the  Debt,  and  lo  coclequently  in\  aiidate  and  overthrow  the  an- 
cient and  undoubted  Privilege  of  this  Court.  Tne  Court  ordered  thit  the 
faid  Action  againlt  the  Sherirfs,  touching  the  Arreil  and  letting  R.  at 
Liberrv   be  dilcharged,  unlels  C.  ihew  Caufe.    Whereupon  C.  olFered 
leveral  Rcilons  lor  Caufe,  but  the  Court  difallowed  the  lame,  and  con- 
firmed the  lit  Order  ;   and  that  the  faid  Action  be  dilcharged,  and  all 
Proceedings  at  Law  againft  the  Sheriiis  be  Itay'd.  £uc  the  fold  C  iniii^ed 
that  his  IJebt  is  great,  and  if  the  laid  R.  be  under  Protection  of  this 
Court,  C.  is  like  to  loie  it.    The  Court  declared  C.  may,  notwithitand- 
ing  the  lbrr..er  Orders,  proceed  againlt  R.  in  order  to  tne  Satisfaction  ot 
his  Debt,   as  he  Ihould  fee  Caufe.     i  Chan.  Rep.  217,  ziS.    13  Car.  z. 
i.  677,  694.   Meynel  and  Sterling  %.  Cooper. 

22.  The  King's  Attcrmy  cf  the  Marches  inlVaks  Ircugbt  \i\sAHicn  thi^e 
as  Execiitcr  to  another,  and  inliited  to  have  his  Privilege,  becaufe  he  v,as 
bound  to  give  his  Attendance  there  i  But  the  Court  laid.  He  thculd  not 
ha\  e  it  here,  becaufe  he  fued  as  Executor.     Latch.  199.     Ewer's  Cafe. 

23.  The  Privilege  ci  Chancery  belongs  to  the  Lord  Chancellor  or 
Keeper  i  to  ail  the  Mailers,  Miniiters,  Ojficers,  and  knr^n  Qirks  oi  the 
Courts  ;  and  to  the  mental  Sen-ants  of  the  ChanceDcr  or  Keeper,  and  of 
the  Mailers,  Minillers,  and  OlHcers  i  And  they  may,  as  the  Cafe  re- 
quires, he  impleaded  here,  either  as  at  Common  Law  in  the  Petty -Bag 
Ofice,  cr  in  a  Way  of  Equity  by  Englilh  Bill.     P.  R.  C.  284. 

24.  Perlons  who  have  Privilege  of  Chancer}-  are  net  to  be  fued  elfe- 
u'bere  than  in  this  Court,  either  by  Latin  Plea  in  the  Petiy-Bag  Office, 
or  by  Englilh  Bill,  as  the  Cafe  requires,  fave  in  Cafes  •shere  the  ^:jeeH  is 
innncduteiy  ccncerntd.     P.  R.  C.  285. 

C'jK  Csnc.  25.  A  I)efendant  in  Chancer}-  refufed  to  anfwer,  becaufe  he  was  an  In- 
A^-.dxssSC.  halrtant  cf  tbi  County  Palatine  cf  Lancajrer,  but  was  over-ruled,  the 
Plaintiffs  being  MiniAers  and  Servants  of  this  Court,  and  as  luch  in- 
titled  to  Privilege  here.  P.R.  C.  2S6. 
^''- dSc  -^-  ^^^  ^^^  Chancellor  Egerton  declared.  That  no  Chq:!cr  Menjs 
privileged  againil  a  Subpoena  oi  this  Court.  And  feveral  Pleas  by  OlS- 
cers  there,  as  Regiiler^  Receiver  &c,  have  been  over-ruled.  P.  R. 
C.291. 

2-.  The  PlaintilF  as  Debtor  to  the  King,  and  Treafiircr  of  the  Navy, 

exbibtted  his  Bill  in  the  Exchequer.     The  Detendantf/^'^^ic^his  Privilege, 

as  one  cfthi  fix  Clerks  in  Chancery^  under  the  Great  Seal.     Hale  Ch.  B. 

and  the  Court  held,  That  a  general  Privilege,  as  Debtor,  wiil  not  hold 

»  ij  ^  .^.  agaioll  a  fpecial  Privilege,  but  againil  a  general  Privilege  it  will.     E'Sit 

C!a-hain"v'  *  Privilege  as  *  Accountant  will  hold  againil  a  fpecial  Privilege  in  another 

Lcrithali.      Court  as  Oficer  cr  the  Court,  cr  ctherv.  ife.  tho'  it  be  not  alieg'd  that  he 

has 


Privilege.  525 


has  enter'd  upon  his  Account.  And  in  this  Cafe  the  Plaintiff  being 
Treafurer  to  the  Navy,  is  Eo  ipfo  an  Accountant.  Hard.  316.  Mich 
14  Car.  2.  in  the  Exchequer,  Sir  Geo.  Carteret  v.  Sir  John  Mafiam. 

28.  The  Warden  of  the  Fleet  moved  for  a  Writ  of  Privilege  fitting  the 
Parliament,  alleging  that  he  was  obliged  to  attend  the  Hoiife  of  Lordsy 
and  therelore  ought  to  be  privileged  Irom  Suits,  and  produced  Prece- 
dents where  Writs  of  the  like  Nature  had  been  granted ;  and  upon 
hearing  Counfel  of  both  Sides,  the  Court  inclined  to  grant  this  Writ  j 
but  it  afterwards  appearing  that  he  was ftted for  Kfcapes ;  and  conlidering 
the  ill  Confcquences  that  might  happen,  and  thinking  that  it  was  in 
their  Difcretioa  whether  to  grant  the  Privilege  upon  Motion,  or  not  (for 
they  could  not  judicially  take  Notice  of  this  Privilege  of  Parliament) 
the' Court  faid  he  might  plead  it  if  he  would,  but  they  would  not  grant 
it  upon  Motion  ;  or  otherwifc,  if  he  thought  his  Privilege  infringed  by 
any  Profecution  againlt  him,  he  might  complain  to  the  Houfe  of  Lords 
for  Breach  of  Priukge.  2  Vent.  154.  Pafch.  2  W.  6c  M.  C.  B.  The 
N\'arden  of  the  Fleet's  Cafe. 


(G.  2)     Allowed,     How. 

I.  -tN Lcfidon^    the  Privilege  fliall  not  be  allowed  hut  upon  Writ  brought  An /^»or- 
-»-  thereof,  and  not  ly  Wny  0]  Pka  ;  but  ;/•;  Honk  he  may  plead  it  by  L?.f*";^' 
Way  of  Plea.     B:.  Pruilegc,  pi.  7.  cites  20  H.  6    30.  bv'lili'« 

/■'.  K.  the 
Court  will  7;c*  tiifcharge  him  Kithof-t  fleadiiig  his  Privilege.     2  Salk.   544.  p!.  9.  Hill.  S  \N  .  5    B  R. 
Lane  V.  Saltmarlh. 

2.  Thomas  Younge  Jiijfice  fiied  Bill  in  the  Extheguer  c.gainjl  the  Clerk  S.  C  Cited  2 
of  the  Hanaper  upon  his  Account,  and  th>:  Dejcndcint  calt  Superfedeas  of  the  Brownl.  zfi;. 
Privilege  ot'  tne  Chancery,  becaufe  he  was  Clerk  of  the  Chancery ;  and  by  ^^^^^  ^. 
all  the  Julfices  in  tne  Exchequer  Ciamber,  the  Superfedeas  ftiall  not  be  GeorJeRey- 

allov.ed  ;  fcir  every  one  who  is  accountant  ought  to  he  attendant  and  pre-  nel. 

fent,  and  there  he  fhall  be  fued  i  for  it  is  an  Advantage  to  the  King  that  *Ati  .^ffs,-;;;- 
he  fhall  attend,  and  ihall  account  j  and  Accountant   may   have    Bill  l"f'|^ ''^'^ 
againll  his  Debtor,  and  rhis  is  for  the  King's  Advantage,  Quod  citius  to^'he'^Kin'ir 
folvat  Regi;  ,?W?/"  Accountant  he  f  id  in  C.  B.  they  tiiall  fend  Superfe-  w«  facd  i-.i' 
deas  to  fur^eafe ;  and  if  he  he  fued  tn  B.  R.  thofe  of  the  Exchequer  fhall  B.  R .  and  a 
fnew  the  *  Record  that  he  is  Accountant  &c.  and  /l\ill  not  have  Superfe-  p''",1°^^^^ 
deas  to  the  King ;  for  the  Pleas  there  are  Coram  Rege  &c.  an  1  he  ihall  be  ^^^^  'htTtht 
difmifs'd,  and  ihall  be  fued  in  the  Escher^u^r.     Br.  Privilege,   pL  25.  cVr.',  and 

cites  9  E.  4.    53.  ^ndu'dhis 

Book  of  .'ic- 
tciunanti  to  the  King,  and  that  the  DefencJart  was  one,  avd  prayed  tie  Prhi.'e^e  of  the  Court  of  Exche- 
<;uer,  that  the  Suit  migh:  be  ft«y'il  ;  the  Court  demardcd  of  the  Secor.djry  what  the  Courfe  wis  in 
luch  Cafe,  whether  to  grant  it  upon  fuch  bare  Averment  of  the  Baron,  or  tl.at  it  ought  to  be  pleLi.:Icd 
and  prayed  by  the  Party;  Upon  his  informing  the  Court  that  it  had  been  uru2lly  allowed  117//'. «/  P/e.j  or 
Prayer,  it  was  granted  accordingly.  But  Willjam.s  J.  was  ftrongly  againfl  it,  and  faid  that  there  are 
many  Books  wherein  it  was  adjudg'd  in  Point  that  i: ought  to  be  upon  the  Party's  Pica  and  Prayer;  and 
that  without  this  the  Court  cannot  certainly  know  whetner  he  be  the  fame  Party  for  whom  the  Privilcc 
is  pray'd.     2  Buhl.  ;6.  Mich.  ic.   Jac.  Anon.  '^ 

3.  A  Serjeant  at  La'U)  was  Plaintiff  in  the  Admiralty^  and  xht  Defendant 
i^trt  moved  for  a  Prohibition  in  B.  R.  It  was  pray'd  that  B.  R.  would 
not  grant  it,  but  would  allow  the  Serjeant  his  Prrvrlege  of  its  being 
niov'd  for  in  C.  B.  But  the  Court  doubted  if  Privilege  lliouid  be  grant- 
ed in  Prohibition  ;  bur  Ex  allenfu  Partium  it  was  ordered  that  the  Plain- 
tiff here  fue  his  Prohibition  in  C.  B.  for  the  Speed  of  the  poor  Plaintiff' 
But  upon  movinc  it  there,   the  C.  B.  refus'd  to  grant  Prohibition,  and  fo 

6  R  it 


526  Privilege. 


it  was  mov'd  again  in  B.  R.  And  all  the  Court  held  that  Prohibitions 
are  grantoiblc  Ex  Debito  Jullitije.  Sid.  65.  pi.  3S.  Mich.  13  Car.  2. 
Ser)cant  Worron's  Cale. 

4.  An  Attorney  of  C.  R.  was  arrefied in  the  Palace-7'ard  uoc  for  from  the 
Ilall-Gate,  fitting  the  Court  ^  at  the  Suit  of  an  Attorney  of  B.  R.  -and  both 
the  Officer  and  the  Prilbncr  were  brought  into  the  Court  oi  C.  E.  and  the 
Oihcer  was  committed  to  the  Fleet,  and  the  other  was  lent  up  to  B.  R. 
wno  being  informed  of  the  Cafe,  viz.  That  the  Attorney  aireilcd  was 
indebted  to  him  in  200  1.  the  Court  of  B.  R.  difcharged  the  other  upon 
common  Bail.     2  Mod.  iSi.  Hill.  28  &  29  Car.  2.  Lcrig's  Caiir. 

5.  Clerks  of  the  Court  niuit  ha\e  a  Certi.'i'cate  ]rom  the  Majier  rf  the 
Rolls,  or  Office  where  they  write,  before  a  Writ  ot  Privilege  be  granted 
them.     P.  R.  C.  285. 

6.  H.  came  to  coiijefs  an  Indi^lment ;  and  the  Court  held  that  he  had  no 
Privilege  Eundo  &  Redeundo,  becaulc  clV.re  wai  no  I  rocefs  againji  him. 
2  Salk.  544.  pi.  6.  Hill.  2Ann.  B.R.  Anon. 

7.  Menial  Servants  of  a  Mailer,  Minilter,  or  O.Tker  of  the  Court, 
mufi  make  frfi  Affidavit  that  he  is  fo  :  The  l\rit  tor  him  muil  firlt  be  pre- 
lented  unto  ■A'iAjjgned  by  the  Lord  Kafer,  and  the  Affidavit  mull  be  at  the 
fame  Time  annexed  to  it.  And  fuch  Writ  floall  continue  in  Force  no 
longer  than  he  continues  Menial  Servai.%     P.  R.C.  285. 

8.  If  a  neceffiary  Officer,  fuch  as  the  Chancery  cannot  be  v\  ithout,  as  a 
Regtjler,  Mailer  in  Chancery,  or  iuch  like,  be  in  Prifon  upon  Mefne 
Procefs,  the  Lord  Chancellor  may  enlarge  him  :  But  if  he  be  in  Execution 
for  Debt  or  Damages,  he  Ihall  have  no  Privilege  i  lor  the  Plaintiff 
would  be  without  "Remedy  if  the  Party  be  once  let  at  Liberty..  But 
this  is  to  be  underltood  with  fome  Limitation  i  tnr  where,  by  Order  of 
this  Court,  one  was  difcharged  by  Superfedeas,  and  the  Plaintiif  brought 
an  Atlion  of  Efcape  againlt  the  Sheritl,  this  Court  ordered  him  to  dif- 
charge  the  Aftion,  and  that  he  ihould  Itav  all  Proceedings  aiiainll  the 
Sheriif.     P.  R.  C.  2.S6,  2C7. 


(H)       1/2  what  Aoimis  the  Privilsge  ilia! I  be  granted. 
Of  the  Chancery.     [And  other  Courts.^ 

A  Clerk  of  1,  r-p  j;)e  Officctjo  auB  O5tniffcr0  of  tije  Cljanrcrp  %?M  not  be  im- 

Chancery  J^     pleaded  out  ot  the  Chancery  m  flllp  Iplfil,  unle;;.  ir  b  •  in  Plaint 

have  his       o^'  I-'i"d»  o^^  Of  Treafon  or  Felony  i  auU  if  tt)ep  iUC  il}t^  Hjaii  f).VdC  tijCiC 

Piiviiege,    liTtilsnege.   3  Jp»  6, 30. 

unlcfs  lie 

IrinesU'r-.t  to  B     R    bccsufe  B.  R    is  the  5uferior  Court,  ard  if  BR.  he  fyj}  fcpfi'd  of  the  Miov, 

the  Privilege  is  not  grantable.  Per  rot.  Cur.    Mo.  755.  pi.  lo^S.Mich.  2  Jac.  A.ioii. 

Hob.  17-,         2*  3U  attOrnCP  of  Bank  being  an  Adminiilrator,  f-'.tnOt  fue  ailO- 

p'  ^?'>  c  tjict  30  aBmtniltcator  b}.)  miit  of  pritJiJcse,  bcciUifc  f)e  i\m  Kn  au- 
— -Giib  ter  Droit,  but  ougijt  to  fuc  liD  Wilt  i}i\m^\.  lL)obait'si  itUportsi 
Hill  c  B.   239.  cage'0  Cale  aDjUOgca* 

170.  cites 

i^  C.  For  in  fuch  Cafe  Executors  and  Adminiftrators  repre'ent  common  Perfons  who  Iiave  nor  that 

Privilege. 

Indebitatus      3.  So  ait  attontcp  licittQ;  an  €xti\\tm  oc  Cicmtntltrator,  cannot  be 

Aflumpfit      ^yg(|  ^g  Executor  or  Adminiltrator  bv  Bill,  aSS  lattOVniCS  atC  UfcD  tO  UC 

againft°the   fuctJ,  but  ougljt  to  bc  fucu  bp  otigmai  mm.  Ipouart'iS  i^cports  139* 

Defendant 

as  Executor,  he  pleaded  in  Abatement  that  he  was  an  Attorney  of  C  B.  and  pray'd  his  Privilege,  but  w.tJ 
ruled  toanlwer  over  ;  for  his  Privilege  cutends  o:ilv  to  .^ftion--  brought  bgainft  him  in  bis  own  Rig'ir. 

1.  6a. k. 


Privilege.  527 


iSalk.  2  pi.  4.Micli.  11  W.  5.  B.  R.  Newton  V.Rowland 1 2  Mod.  51 5.  S.  C.  And  there  it  was 

urg'd  on  Demunci-,  tliat  the  Reafon  of  Privilege  in  the  Qifc  of  an  Attorney,  i.s  by  Beafon  of  his  pcr- 
fonal  Attendance,  which  is  all  one  whether  fued  in  iii^  own,  or  in  Auter  Droit.     But  per  Holt,  The 

Authorities  are  of  the  other  Side  in  this  Cafe,  and  the  Plaintiff  had  Judgment  Nifi ^S.  P  Where 

Attorney  was  fued  as  Adminiftvator      1  Salk.  -.  pi.  18.  Hill  4  Ann.  B.  R:  Lawrence  v.  Martin. 

4.  Ic  was  doubted  if  Privilege  fhould  be  granted  in  Prohibitions.    Sid. 
6s-  pi-  3B.  Mich.  13  Car.  2,  in  Serjeant  Morton's  Cafe. 


(T)  u^t  'v^hit  Time  they  fliall  pray  their  Privilege. 
[And  njahat  JJjall  he  an  admitt'tug  the  'Jiinjdiclion  of  a 
Court.  ] 

i^jif  tIjC  ll^artp  has  affirm'd  the  Jurifdiction  of  the  Court  where  tijc  Privilc- cf 

•»-  g)Uit  isi,  ije  fljal!  not  fjnije  Ijig  i;i)riuifcGc  aftct*    n  Ip.  4*  68.  in  b  r.  a^ 

Cu'fo.s  6-e- 
vium  there,  was  pleaded  after  Bail pi<t  hi ;  and  re'blv'd  per  tot.  Cur.  That  the  puttia;^  in  B.iil  knoSith- 
rtijftcn  to  the  fjirifdidion  of  the  Cciirt,  be  it  general  or  fpecial  ;  for  till  Bail  pu:  in,  he  is  n:i:  i-i  Court  to 
plead  any  Thi'ig,  nor  is  the  Plaintiff  obliged  to  declare  agaiall  him.    And  lo  his  Plea  of  Pfivile^e  was 
Uowed.     5  Lev.  553    Dafhwood  v.  Folkes. 


a 


2.  jf  i^riliilcffc  bcprapti  fci?  ^nrrijant  of  t()C  Cljancerp  after  yerdia,  a  Man  was 

Hnd  before  J  udgment,  £t  fljall  ItUC  DC  illlOi'OCXJ^  i  i  IX  4-  Oi.  U.  -'.'"f  ^/"''y 

Trefpafs,  and  before  Judgment  he  demanded  the  PrMlege,  becaiife  his  Ahfier  i:/as  faed  in  Jppeal  of  Mur- 
der before  he  'aas  arrefled  in  Lcvdon,  and  bv  Award  he  had  the  Prii'ilege  ;  Quod  Mirum  I  Kor  after   An- 
Aver  given,  without  demanding   the  Privilege,   he  ought  to  be   culled  thereof   Br.  Privilege,  pi.  27.  ' 
cites  21  H.  7.  59. 

A  Man  vas  impleaded  in  C.  B.  r.nd  in  the  Vacation  ciinie  to  Lcr.dir.  1 1  Dr.ys  hefore  the  Term,  and  -li'.it 
arrejfed  ill  Lor.don  and  (Oiiderr.tjcd  ;  and  becaule  the  other  //• .-;/  of  Privileqe  vjas  di'livered  in  London  Mffiie 
between  I'erdiH  and  Judgment,  and  notwithllanding  this  they  g.ive  Judgment  in  L.  and  yet  bicaufe  it 
appeared  Ly  bis  Oitlh,  that  he  came  to  London  Jo  Icni;  before  the  Terr,/  to  retani  Coinj'el  in  his  Matter  in  Hank, 
therefore  the  Privilege  was  a;lo*^ed,  and  the  Prifo  icr  dilmilled  ;  (^lod  Nota,  afcer  Cjnd.-mnaiion,  and 
the  Reafofi  feenis  to  be,  inalmuch  as  by  the  firft  Writ  of  Privil  ge  delivered  before  ludgment,  their  ■ 
Hands  were  doled,  and  fo  their  [udgment  after  this  was  void,  and  lo  lee  Privilege  allowed  after  Pka 
pleaded.  Br.  Privilege,  pi.  28.  cites  53H.6.4 ir.  Ju.lgment,  pi   55  ciiCs  6.  C 

3.  €:a(ftl)c  inqueft  tua0  *  tcati))  to  pafs,  it  (ijall  not  be  nlloteeD  Br.Privi- 
aftcc  upon  |5ram»   Contra  1 1  ih  6  8, 1 1  ix  6.  s.  b.  luatrctlje^u^  'T'sV"^' 
perftccas  10,  tljat  t)efijaUnot  be  fucH  out  of  tijc  Cljancerp  aijatnft  W  th«  the  Pri- 
l^iil  i  iroc  tlji.3 10  luiti)  iys  J©iil.  viiege  was 

allowed. • 

*Orig.  is  CPrire)but  it  feenos  it  fliould  be  (Prift) 

4.  @0  If  tlje  lf5artj?  pleads  to  Iffue,  J)Ct  l)f  niall  not  l)XOC  l^XM-  B'--  ^'•i^i-     . 
Urge  betore  Nili  Frius  granted.     1 1  ip.  4.  08.    3  i),  6.  30.  'sge,  pL  3. 

5.  S)0  after  Demurrer  \)C  fljall  nOt  ijal^e  Pri\!'.!CSC»  3  P>  (3.  30.  &  p  by 

6.  Af:er  Defence  made,  tljC  i^ribilCSC  Of  tl)Z  C?)anCCn)  fijaU  U  *  Br.'Privi- 

granteD,  becaufe  tbtsi  is  not  propcrip  a  \I)\ta  to  tj)€  liuianiftion.  J^s'^.  p'- ^  s. 
*  3  (p.  6.  30-  SlDiuoseti.  93*  II  Car*  Z5,}Ji,  bztmm  R^ev^  ^''-^' h  d^oir- 
;^acej,  per  QTurtam  ruleo*  ofSTn/ffi-l 

Sid  ;i8.  pi  8.  Hill.  iS  &  ig  Car.  2.  B.  R.  It  was  held  per  Cur  Th.it  after  a  full  Dcfe,i<-e  he  Ihail 
never  be  allowed  to  cuff  the  ('ourt  of  its  Jurifdiftion — S.  C  cited  Lev.  <!4.  in  the  Cafe  of  j|-5faot  lu 
Jiiifon,  as  adjudged.  Mich.  iSCar.  2.  B.  R.  in  the  Cafe  of  TruiTei  v.  Maddo.\.  S.C.  ciiea  .\)g. 
Freem.  Kep.  i  34.  in  Cafe  of  Bone  v.  Andrews  in  C.  B. 

<J.  After  Imparlance  to  another  Term,  in  the  other  Term  i)Z  ii)^l\  UOt  Thelmpar- 

l)a\je tlje  li)ri\3itese  of tlje  Cljancerj)  bp  CSrit.  20  tx  6. 33.  S^'n^^/- 

bus  .4tle_gatior:il.ii.s  &  Exceptiombus  omnimodis  tarn  ad  Breve  cjtiam  ad  Karr.itionem,  and  at  the  Day  the  De., 
fcndant  call  Suj^erfedeas  of  the  Privilege  of  Cha'.iccry,  b'Jt  it  was  not  allowed;  Bccaaic  the  Imparlance 

*  a&rmed 


528 


Fnvilege. 


♦  aflra-mcd  the  fuiiliiiction  of  the  Court ;  Qiiod  Nota  by  Award.  Br.  Privik->;c,  pi.  15.  cites  S.  C. . 

Giib.  Hill,  ct  C  B.  1-0.  titcs  21  H.  6.  7 1  [But  (7 1 )  fl-cms  to  be  mil'-prnitcd  tor  (7 ,;]  and  lay.v,  that  the 
true  rcafon  fcenis  to  be,  th.it  by  this  Imparhincc  the  Dctcndant  hail  confined  himfclf  to  take  Advantage 
only  of"  the  Dcfauh  in  tlie  Writ  and  Count  ;  But  had  he  obtained  from  the  Court  a  General  Special 
Imparlance,  vi/,.  S.-ihis  ovuiiius  &'  Oninimociis  Jiknvtagiis  &  Exceptiouhiis,  he  might  tlu-n  have  pleaded 
lii.s  Privilege  ;  For  that  is  not  to  ouftthe  Court  of  its  Jurildittion,  but  ib  a  Privilege,  which  tacli  Court 
allow,s  to  the  Officers  of  the  other  to  be  fued  in  their  own  Court  only,  and  the  modern  Authorities  are 

cxprels,  that  Privilege  may  be  pleaded  after  a  general  fpecial  Imparlance. ♦  S.  P.  P.  K.  C.  2o<J 

. Debt  in  B.  R.  againlfan  Attorney  ofC.  B.  who  iwfnrW  fpecially,  Sahis  Jihi  cnmiiiis  Exceftioni- 

iiis  &.C  and  aiterwardspleaded  his  Privilege  The  Plaintiff  demurred;  Windham  and  Twilden  held, 
that  this  Plea  was  receivable  upon  this  Imparlance  ;  but  adjornatur.  And  the  next  Term  a  Refpondcis 
(Juiler  was  awarded  for  war-t  of  Averment  in  the  Plea  ;  But  nothing  further  was   faid  of  the  fpecial 

Matter.  Lev.  54.  Hill.  i;&i4.C.ir  2.  B.  R.  Neave  v.  Nelfon. .But   Mich.   92  Car.   2.    8.  R. 

It  was  held  per  Cur.  that  Plea  of  Privilege  comes  too  late  after  Imparlance.  zShow.  145.  Jenkcsv.  Lyon. 
S.  P.  Raym.   ;/;.    Barrington  v.  Venablcs. 

In  Dtbt  uron  Eord,  tlie  Defendant  in  propria  Perfora  imparled,  viz.  Salvisfibi  omnibus  &  Omnimodis 
Exccptionibus  &Advant.Tgiis  tam  .id  Jiirifdittionem  CtirU  cjuam  ad  tre^e  &c.  and  then  pleaded  his  Privi- 
Use  ss  one  cf  the  Clciksof  the  Exchequer.  Exception  was  taken  thereto,  th.atfuch  Imparlance  Ad  Jurif- 
cl'.Ctiontm  Curiar  never  was  feen.  And  the  Court  faid,  that  fuch  Imparlance  ought  not  to  h.:vc  been 
"ranted  bv  a  Prothonotary,  an.d  thereupon  awarded  a  Rclpondea.s  Oufter  ;  But  they  refolvcd.  that  if 
flie  Imparlance  hadbecn  asin  Clflf  l]fim'S(i.'afe,  Hard  965.  before  the  Plea, it  had  bcengcod.  Lutw.  4;  t6 
46.  Palcli.  1  5'VV.  3.  C.  B.VVentwortli  v. Squibb. — TreJ}afs  ae^ahift  divers;  all  imparled  except  cue,  and  after 
at  the  Day,  tie  c>:e,  '•^ho  did  not  impart,  appeared  ty  .'Ittoriiey  and  imparled,  and  after  SeUente  Curia  call 
."^upeifedtr.s  of  the  Chancery,  becaufe  he  was  Servant  of  the  Chancellor  ;  and  it  was  not  adjudged  wlie- 
ther  he  fliall  have  the  Privilege  or  not,  becaufe  others  are  joined.  Br.  Privilege,  pi.    7.    cites  20  H. 

£>•  32.. 

A.  fued  B,  in  an  Adion  of  Battery  in  Lcndcn.  B.  removes  it  by  J-faheai  Corpus  to  tlic  King's-Bench, 
and  the  Term  after  prays  an  Imparlance,  and  before  the  end  of  the  Term  prays  the  Privilege  of  the 
Exchequer  ;  The  PuifneBaron  comes  u-ith  the  Red  Beck,  and  fhews,  that  B.  is  Efchcator,  and  (o  an  Ac- 
comptant  to  the   King,  and  at  lengthPrivilege  was  allowed.  Noy.  40.  Walrend  v.  Winroll. 

8.  So,  aftCt  JttiparlanCC  to  another  Day  in  the  i^ime  Tcnn,  I3C  fljall 

not  Ija^c  ti)epn\jileffc  bu  Wxxt*  20  fp.  6.  32.  b.    Diibitatiir. 

9.  After  Imparlance  in  B.  R.  by  a  Servant  of  one  of  the  Examiners  in 
Chancery  being  Defendant,  if{)e  piCaDfJ  i)iSS  PritlilCge  Of  tljC  CijatlCCr)), 

i)c  fi^nU  not  ija^c  lu   05. 1 65 1 .  iicttuccit  tip  and  Remedy^  pcc  dTuriaiu 
nr»)uni\tri»  imratur*  Cr*  1651.  Hot.  1260. 

In  Trefpafs,        jq.  At  the  Exigent  returned  upon  Procefs,  DtftUtiant  fljall  Ija^C  tljS 

""/t/i^tn  Pn^ilcce  of  tlje^Cljancciin  20 1.)»  6. 26. 

m'itted,  that  the  Defendant  may  have  Privilege  of  B.  R.  at  this  time;  hut  in  Debt  he  fhall  Tiot  have 
Privilege  of  B  R.  For  Debt  does  mt  lie  there.     Br.  Privilege,  pL  40.  cites  10  E.  4  4 

A  C/fiAof  the  Chancery  was  fued  in  Bark,  and  Procels  continued  to  the  Exigent;  the  CAcrV  fued  a  Su- 
*pi/p^p,7j  to  the  Sheriff,  ^lia  Improvide,  -md  -dher  fued  a  If 'rit  of'  Privilege  direHed  to  the  Jiiflices  of  the 
Bank,  requiring  them  to  furceafe  ;  and  upon  a  long  Debate  his  Privilege  was  dilallowed,  and  he  dri- 
ven toanfwer  ;  For  the  Court  was  lawfully  feifed  of  the  Plea  by  the  Defendant's  own  Ac^,  in  asraucli 
a.<;hc  had,  by  the  Siiperfedeas,  eff.>medlhe  Jtirifdiclion  of  the  Court  ;  for  every  Superfcdeas  (;iuia  Im- 
provide  recites  an  Appearncein  Court  of  the  Defendant  by  Attorney,  and  fliews  his  Name;  fo  that 
this  is  his  own  Default.  But  if  he  had  rot  fued  fuch  If  rit,  notwithllanding  the  Exigent,  the  Privilege 
fhould  have  been  allowed,  and  of  this  there  were  Precederts  fliewn,  and  then  after  the  VVrit  of  Privi- 
lege comes  to  the  f  uftices,  they  ought  to  make  a  fpecial  Siiperfedeas  of  the  Outlawry  to  the  Sheriff,  reci- 
tingthc  Privilege.     £t  fic  nota  divcrfitatem  bene.  D  35.  pi.  18.  Pafch.  2S  &  jy  H.S.  Anon. 

11.  S!t  tIjC  €rtn;mt  tCtUniCtJ,  and  after  Mainprise   found   upon  it, 

Dcfcntiant  njall  not  Ijaiie  ttjc  l -jriliiicuc  of  tbc  Cijanccrp,  becaufe  bp 
t\)t  S^amprtfclieljasi  affirmcotijc  JurtstJictton.  20  icx  6. 2(>.  £iij£erc» 

12.  After  Ilfue  when  the  Inqueft  is  ready  at  the  Bar,  (f  au  abfolute 
Superfedeas  comes  out  of  the  Chancery,    CCrttfPUlQ;  tijat  DefCUDatlt  15 

a  Cierk  tijere,  auD  coiuman5si  tljcm  to  furceafe,  it  fljall  be  alloiueu» 

1 1  I),  6.  8. 

13.  He,  who  is  anefled  mefnc  between  the  'Tefie  of  the  Orij^inal  and  the 
Return  ihall  have  the  Privilege,  if  the  Writ  be  returned  after  j  For  this 
Ihall  have  Relation  to  the  Tefte.  Br.  Privilege,  pi.  4.  cites  9  H.  6.  7. 

14.  Trefpafs  againlt  the  Baron  and  F"eme,  the  Baro/j  caji-  Jin t  of  Pri- 
vilege for  him  and  hts  FemCy  bccanfe  he  i'::as  Servant  to  the  Chancellor  ;  and 
it  was  alleged,  that  pending  the  Suit  the  Chancellor  ivas  rcn/oz'ed Jrom  his 
Ofpce  ;  but  this  was  not  regarded  ;  For  if  he  had  once  a  good  Caufe  of 

Prji'ik-je 


Privilege. 


ge.  Y^9 


Privik^c,  the  Act  of  ;i  3d  Perfoa  Ihill   not  prejudice  hi.n.     Bi.  Privi- 
lege, pi.  9.  cites  34  H.  6.  29. 

15.  A   Man  was  imfl^adcd  at  London  long  before  the  Tam^  and  was  ar-  '^^_  '^^•*"  '« 
refled,  and  found  Mainprifi;,  and   tit  the  Ttnii   after  ein  Or/<i/jai  and  Suic  /"i^BWw'y^ /" 
was  taken  againjl  the  Dcjendaiit  at  IVtJihiinjicr  ni  C.  B.    and   the  Piaint.Ji  q;,„eofki- 
declared,  and  zhe  Defendant  hnparhd,  and  fucd    Writ  of  Privilege,  and  c^uimi,  ^uri 
had  the   Privilege,  notw  ithftanding  th.it   the  Suit   in  L.  was  the  Prior  ^''^^■*^'^"''- 
Suit,  bccaufe  it  \v:<s  not  adjudg'd  by  Rc>  every,  nor  ('undemnation,  tut  ^ '"^ '''^^  j^ . 
is  pending  yet  iu  L.  notdilculfcd  ;  but  if  he  had  been  condemned  in  L.  he  the  DcLn- 
Ihould  not  havethe  Privilege  ;  Q^iod  Nota  Di\  crfitv.  Br.  Pri\ilege,  pl.d;mtlias 
36.  cites  J  E.  4. 44.  ^  '  Cu,ic^^ 

yet  rhis  fl;jH  not  diiiiiifs  the  E>.ec'.:tioii    Br.  Privilege,  pi.  3- .  cites  2  E.  4  b'. 


16.  Littleton  J ullice,  faid,  that  one  app:ared  by  Cepi  Corpus  and  fo:ind  ButlUhc 
Mainprife,  and  before    the  Day  which  he  had,  he  '■d'as  arrejfed  in  London,  ^^"^^^^  ^"4_ 
and  was  brought  into  B.  R.by  Corpus  ami  Canfa^  at  which  Day  tlje  I'lain-  i„d  been  ie- 
iiff  ivas  Nonfiiited,  and  the  Delcndant  difinilledot  theSerjc.uu  ;  For  the/jre  the  Im- 
Plaintj  upon  which  he  was  arrelled,  was  taken  after  the  Lnprifonment  in  p'-'f»""ei:t 
Bank.  Br.  Privilege    pi.  24.  cites   9  £.  4.47.  '^'''^\\"t 

been  remitted.     Ibid. 

17.  Any  Plea  of  Privilege  is  good  to  a  Declar.ition  againft  one  /';/  Caf- 
todia  Alar,  if  he*  be  there  wronTfudj  ,  As  if  an  ylttorutj  oj  C.  B.  be  arrelled 
in  a  Latitat,  and  is //7  C?//?ort)' ot  the  MarlLal  yuro/V?/;/ 0/  Bad,  or  fuppofe 
ht  pats  tn  Bad.,  it  lliall  not  hinder  hlin  ol  pleading  hisl'rivilcge  ;  becaule 
he  can't  plead  'till  he  pats  in  Bail,  if  he  be  not  in  actual  Cullody  ;  and 
if  we  give  Judgment,  it  niult  be  for  the  Defendant.  Per  Holt  Ch.  J. 
12  Mod.  535,  536.  Trin.    13  W.  3.  B.  P^.    Wilbraham  v.  Lownds. 


(K)     Proceedings,  and  Pleadings. 

I.  "O  ILL  was  brought  againfl  the  Ciiflos  Breviiim.^  becaufe  the  Sheriff' of 
J3  '^'-  'returned  a  Capias  Vtlagatum.^  which  the  faid  Defendant  cm- 
lezzerd;  And  Exception  was  taken,  becaufe  he  is  not  named  Now  Cti/los  i 
&  non  AlU^catur,  becaufe  it  appears  Ly  the  Ret  am  that  he  is  yet  Calhs, 
and  then  Bill  lies.  And  another  £x6Y/)//y,'/  was  taken,  becaufe  be  eiubezzel'd 
it  at  D.  in  London,  and  that  Bill  Ins  not  but  of  an  Aci  done  in  the  fame 
County  where  the  Court  is.  And  Skrene  ofier'd  to  demur,  becaufe  the  Bill 
lies  bv  his  Pretence.     Br.  Bille,  pi.  4.  cites  7  H.  4.  5. 

2.  Bill  ol  Debt  was  fuch,  viz.  J.  ^.  petd  de  }'/'.  M.  iino  Attornat.  de  &c. 
and  the  Bill  was  challeng'd  becaufe  it  y/}ortW  be  iinum  Aitomatnin  Szie. 
and  the  Bill  awarded  good.  Brook  fays,  Quxre  what  is  intended  ^  tor 
it  is  ill  reported.     Br.  Bill.  pi.  8.  cites  7  H.  6.  43. 

3.  In  Debt  the  Defendant  call  Superledeas  of  Privilege  of  the  Chan- 
cery, and  laid,  That  the  Day  of  t"he  Vv^rit  purchafed  he  was  menial  Ser- 
vant of  E.  Bilhop  of  B.  Chancellor  ot  England,  and  yet  is  ;  therefore  he 
demanded  Judgment  it'  the  Court  will  take  Conulancei  and  the  Plain- 
tijffaid,  That  the  Defendant  was  not  Ser^jant  of  the  Chancellor  the  Day 
of  the  U'rit  purchafed,  nor  ever  after  ;  And  tor  Want  of  Deience  deiiiand- 
ed  |udgment  ;  and  z\\q  Defendant  demanded  Judgment,  lecaiije  the  King  re- 
corded that  he  is  Servant  ol  the  Chancellor,  Ut  Accepimns  ;  And  vet  becaule 
the  Plaintirt  had  traverled  the  Deience  directly,  to  which  he  anfvvered 
nothing,  thetelbrc  it  was  awarded,  That  the  Detendant  anlv\er  without 
the  Privilege  3  Qiiod  nota.     Br.  Pri\ilege,  }d.  13.  cites  21  H,  6.  20. 

6  S  4.  The 


530  Privilege. 


A.  The  Pliiiiuili"  fiiid.  That  whereas  it  is  contained  in  the  IFrit,  that 
he  IS  uifiiial  Servant  ot  R.  S.  Burchier  of  the  Chancery,  he  is  twt  me- 
nial Servant^  Priji  j  and  the  other  e  contra.  Br.  Pri\ilege,  pi.  17.  cites 
22  H.  6.  38. 

5.  In  Trelpafs  the  Defendant  caft  a  Supcrfcdcas  ol  the  Privilege  of  the 
Exchequer,  and  alk^d  the  Ufa^e,  that  the  Ojficers  thei-e^  »or  their  Servants 
&c.  have  twt  been  impleaded  clfeivhere  but  in  the  Exchequer,  and  that  he 
is  Servant  of  an  Officer  &c.  The  Plaintiff' [aid,  that  the  Officers  and 
their  Ser\  ants  attending  at  the  Office  have  uled  to  have  fuch  Privileges, 
and  that  the  Defendant  is  Servant  in  Husbandry  in  the  Conntrj,  Abfque  hoc 

*  For  ycv  that  he  is  Attendant  &c.  And  the  Opinion  of  Prifot  waSjThat  this  is  a  *  good 
PrUot  the  \iX\iQ  ^  which  none  deny'd  but  Lai<;cn,  who  was  for  the  Delendant,  and 
Prcicnpnon  ^-^  he  traversed  more  than  ivas  tender" d ;  But  quaere  if  he  ought  not  to  tra- 
for  AU  Sci--  verfe  Ablqiie  that  the  Privilege  extends  to  all  Servants,  Prout  &C.  Br.Tra- 
vants,  tlicic-  verie  per  i?cc.  pi.  27.  cites  34  H.  6.  15. 
fore  lie  may 

veil  lay  as  here,  and  j7;fw  that  fuch  Servants  Jhall  have  Privilege,  anA  the  others  vol,  and  travcrfe  as  here, 
iitthut  f.-azerjing  the  Frefiription.     Br.  Privilege,  pi.  S.  cites  iS  C—  Br.  Prercription,  pi.  -.  cites  S.  C. 

6.  Bill  a?^ain/l  a  Sheriff' in  the  Kxcheqaer  upon  his  Account  fliall  abate  if 
he  be  ?iot  mimed  Sheriff,  et  ratione  Olficii  fui  fcilicet  verfus  J.  O.  quondam 
Vicccomitem  N.  qui  priEfens  hie  in  Curia  fuper  compoto  luo,  ratione 
Olficii  fui.     Br.  Bille,  pi.  42.  cites  37  H.  6.  39. 

7.  if  .6///  of  Debt  is  brought  by  an  Attorney  upon  the  Privilege,  the  De- 
fendant may  fay,  That  he  is  not  named  Attorney  in  the  Bill,   )  udgment  of 
the  Bill,  and  a'  good  Plea  ;  Contra,  if  he  fues  by  Writ.    Note  the  Di- 
verlity.     Br.  Brief,  pi.  342.  cites  3  E.  4.  26. 

Br.  Billc,pl.  8.  If  one  demands  Privilege  as  Warden  of  the  Fleet,  becaufe  he  is  Offi- 
i^_'-""f'*^'?-^- ccr  of  the  Court ;  it  fuffices  if  he  be  named  Warden,  tho"  he  does -not 
iVl  26.  citc.^/''^™  -^""^  ^'"  '^  Warden,  As  in  Jure  uxoris,  or  by  Leafe  for  Years  &:c.  but 
s.  C.  it  fuffices   by  Name  of  Warden  only.     Br.  Privilege,  pi.  23.  cites  9 

E.  4.  40. 
Br.  Privi-  9.  In  Trefpafs  the  Defendant  pleaded  Privilege  as  Servant  of  a  Filazer, 

lej;e,  pi.  40.  ^nd  Iffite  ■'joas  taken.  If  the  Party  was  Servant  Attendant  on  the  filazer,  or 
cites  S.  C,     j^^^^  ,^j.  the  Time  &c.     And  fo  fee  that  the  Ilfue  is  peremptory  i  for  it  is 

triable  per  Pais.     Br. Peremptory,  pi.  48.  cites  loE.  4.  4. 

10.  An  Attorney  of  C.  B.  brought  an  A.J  ion  there  againft  a  Stranger 
ipy  Attachment  of  Privilegt,  and  had  a  Verditt ;  But  upon  a  Writ  of  Er- 
ror brought,  the  Judgment  was  reverfed  lor  ivant  of  finding  Pledges  De 
Profequendo,  tho'  feveral  Precedents  were  ihcwn,  that  an  Attorney  need 
rot,  becaufe  he  is  fuppofed  always  prefent  in  Court.  And  the  Words  of 
Si  Querens  tecerit  te  Securum  de  Clamore  fuo&c.  were  wanting  in  the  At- 
tachment of  Privilege.  D.  288.  pi.  53-  Pafch.  i2Eliz.  Floteman  v.  Bygot. 

11.  It  was  agreed,  That  all  Proceedings  in  an  inferior  Court  after  alVrit 
of  Privilege  delivered  out  of  this  Court  are  void,  Sc  Coram  non  Judice  ; 
and  if  they  award  Execution,  this  Court  will  difcharge  the  Party.  2 
Brownl.ioi.   Mich.  9jac.  Anon. 

12.  Error  was  brought  ot'  a  Judgment  in  C.  B.  in  Debt  on  an  Arbitra- 
tion Bond  by  an  Attorney  of  C.  B.  and  Judgment  upon  Demurrer  given  for 
the  Delendant,  ^wd  qucrcns  nil  Capiat  per  Breve  i  whereas  the  Aftion 
was  brought  by  Bill  of  Privilege,  and  not  by  an  Original  Writ ;  and 
therelore  it  ought  to  be  Nil  Capiat  p6r  Billam.  This  was  held  a  mani- 
feft  Error,  becaufe  it  was  in  the  judgment,  which  is  the  Acl  of  the 
Court,  and  fo  not  to  be  accounted  the  Mifprifion  of  the  Clerk.  Cro.  C. 
580.  Pafch.  16  Car.  B.  R.  Reymond  v.  Bembridge. 

Hard.  164-         13.  In  AfTumplit  &c,  the  Defendant  pleaded  his  Privilege  as  ./f.Y^/Yor 


rherc  the      lege  was  pleaded  in  the  Negative,  lor  'tis,  that  they  are  not  to  be  im- 
pleaded 


Privilege.  5-^1 

pleaded  ellcwherc,  without  Iheu  ing  that  thcv  have  been  ufcd  to  be  llicd  ■'I'--'  '"s  the 
there.     2dly,  'Tis  too  general  tt)  lay.  That  the  Barons  and  their  Clerks  ,\^J'^'if  ^"'" 
are  not  to  be  lued  clfcwhcrc;  lor  that  doth  not  prove  but  that  one  ol  their  -i'^|',.,t  .,ij  ^^^ 
Clerks  may  be  fued  cljewhere  ;  And  this  was  held  ill  according  to  the  Barons  &c. 
Exception.     It  was  inlilted.  That  there  was  a  J)i\erhtv  between  interior  -"^'''^  tli!-'''c 
Courts  and  the  Courts  ot  Wcllniiiiiteri  that  tho'  i'ri\ilcge  ot  interior  ^'^^Y['""f 
Courts  mull  be  pleaded  preciiely,  yet  Privilege  of  the  Exchequer,  which  t||i.'^|,  t'oM,ot 
is  one  ot  the  4  Great  Courts,  need  not,  the  Curtonis  ot  thole  Courts  be- avcriinj;  Ins 
ing  Laws  whereof  all  other  ('ourts  take  Notice  without  pleading  them. ''''■">  ^^ 'ic 
But  Per  Cur.  Plea  to  the  luriidiftion  mult  be  precife.     2  Sid.  164.  Hill.  <'"K'.'^'  ^=- 
1659.  B.  K.  toltcr  V.  Barrmgton.  iiru.ible 

%\lietlici'  lie  is 

the  tame  Perion  wlio  is  Auditor  tlierc  ;  And  to  this  Opinion  the  Couft  fccmed  to  incline   ;   but    the 

Plaintirt  's  Cduncil  Q\d,  Tliat  the  Precedents  in  the  Ex'chenucr  were  without  any  f'uch  Averment  ;  And 

t'ley  made  a  I^itterence  betwixt  the  OlHccrs  or  Clerks  ot" Courts,  who  are  upon  Recoril  there,  and  tlieir 

Serv-ints,  who  are  nor.  k'x  Adjornatur.  • In  Debt  upon  an  Obligation  brouglu  againll  the  I^L-teud- 

ant,  he  pleaded  the  Privilege  ot  the  Exclicqucr  ;  And  it  was  laid  by  Mr.  JulHce  (Jolm)  Powei,  That 
tlie  Defendant  needed  not  to  have  pleaded  it,  but  that  it  was  to  be  alUu'd  i:fm  producing  the  Red  Biokof 
th  F.Xihroutr.     Lutw.  46.   Pal'ch    i;VV.  ;.    in  the  Cale  ot  Wentworth  v.  Squibb. 

The  Pica,  that  onires  Attomati  of  C  B.  ought  to  be  impleaded  there,  and  not  ellewhere,  was  held  ill, 
and  a  Re'pondeas  Oullcr  awarded.     Lutw.  639.  Patch.   12  W.  5.  Can'field  v.  \A  arren. 

14.  T!ic  Citjiom  of  C.  B.  concerning  Privilege  was  certified  to  B.  R.  ly 
the  decc!!J.:nes,  and  therctorc  was  retiis'd  ;  tor  it  ought  to  be  certified  by 
the  Prothonocaries,  Sid.  65.  pi.  38.  Mich.  13  Car.  2.  Serjeant  Morton's 
Cafe. 

15.  An  Information  was  exhibited  againft  the  Qi/fos  Brevini/i  of  B.  R.  R"t  i"  Tief- 
for  Abufes  and  Mildemcanors   in   his  Oliice.     HeVefus'd  at  tint  to  ap-  !|;j'y|^'^,."\"^ 
pear  in  Perlbn,  but  would  have  appeared  by  Attorney.     The  Opinion  of  „f  c^B^'he 
the  Court  was,  that  he  cannot  appear  by  Attorn ty,  becauie  he  is  an  Otficer  pie.ided  lis 
of  the  Court,  and  prelumed  to  be  alwavs  prelent.      It  was  agreed  that  PrUikpepet- 
no  Procels  Ihould  ililie  agaiiill:  him,  but  that  upon  the  residing  the  Iiijoriiia-  'p/' "n/'"'" /r 
tion,  if  he  doth  not  appear  Judgment  Jhall  I e  given  againlt  him.     Sid.  134.  ^{a/iiirr'd'hc- 
pl.  8.  Pafch.  15  Car.  2.  B.  R.  The  King  v.  Paget.  cauie  he 

ought  to 
have  plesried  it  in  Propria  perfona  ;  for  pleading  it  by  Attorney  deftrovs  tlie  very  Reafon  of  his  Privi- 
lege, which  is  ids  attending  the  Court  in  Perlbn  ;  but  the  Opinion  of  the  Court  was,  that  an  Attorney 
may  plead  his  Privilege  by  an  Attorney,  and  no  Inconvenience  follows  it;  for  lie  mav  he  lltk  or  have 
Butinefs  in  another  Court,  which  he  mult  necellarily  attend.  It  is  true  tlie  Precedents  arc  both  Ways. 
Tlic  Plea  uas  allowed  Nih.     Sty.  419.  Hill.  1654.  Higgs  v,  Harrilon. 

16.  In  Debt  upon  an  Efcape  after  Execution,  the  Defendant  appeared, 
Et  dclendit  \  im  (S:  in|uriam  quando  See.  andimparl'd  ipccialiv,  la\  ing  to 
himielfail  Ad\antages  and  Exceptions  Ouoad  Billam  pra-d.  and  whether 
aftcrfuch  Imparlance  he  mull  be  aliow'd  his  PrivilegcasMarlhal  of  B.  R.? 
The  Court  held.  That  alter  tuch  Detl-ncc  Pri\ikge  may  be  allowed  i 
for  it  is  not  a  lull  Defence,  nor  does  he  go  about  to  oull  the  Court  of  |u- 
rifdiftion,  but  only  claims  his  Privilege.  Likewife  after  a  fpecial  im- 
parlance of  ^S.^/wj  omnibiii  Advantagiis  &  Exceptionibus,  a  Man  Ihall 
have  his  Privilege  i  but  if  the  Imparlance  be  fpecial  .^V/o./,/  Bitlara  hre^e 
feu  Navrationcni,  it  ihall  not  be  extended  faitheri  and  alter  Iticli  Imp.ir- 

lance  Privilege  is  not  allowable,  as  appears  22  H.  6.  7.  9  E.  4.  53.  But 
upon  Defendant's  Prayer  it  was  adjourned.  Hard.  365.  Pal'ch.  i6  Car. 
2.  in  the  Exchet^ucr,  Claphamv.  Sir  J.  Lenthall. 

17.  'I'he  Privilege  of  Chancery  ■xas  pleaded  ly  Way  of  Prcferiptinn  ;  and  In  Indcbira- 
upon  Demurrer  it  was  held  ill.      ifl.  Becaufe  he  did  not  conclude  hi;;  Plea  t."^  t''c  t'"-'- 
with  ¥j  hoc  parattis  ejl  verifcare.     And  2dly.  No  Place  iias  alleg'd  ;  for  ^^".'^■j'.'', 
they  are  *  xMatters  ot  Fad,  and  triable,     i   Vent.  264.  Mich.  l6  Car.  2.  oViiom  of 
B.  R.  Eawkcncr  v.  Annis.  Chancery, 

il,.}t  all  Ple.u 
concerning  the  Chancellor,  and  any  the  Clerks  of  tlie  Chancery,  oiivlt  to  lie  fle.xdcd  ,ir,d  d.-terwined  Gi.im 
CxmelLnio,  ur.d  nor  elfcv.here,  and  avers  he  is  aClerk  of  the  InroliiK-nt  Olticc,  Unde  iioii  ii;ttndit  .-noil 

Cjria 


c,c^2  Priviki^c. 


CunTlc  ■■■•o'ccre  vult,  but  not  rayiiij;  Piout  patct  per  Uccordum,  noi-  where  tlie  Clianceiy  is ;  which  per 
Ctiriun  it  ill  and  as  to  the  Chancellor,  it  is  void  ;  However,  becaule  he  cannot  be  jud<^e  and  l-'.d-ry, 
a  Kefpoiidcas'Ouller  was  awarded,  and  it  fhould  be  only  that  they  ought  to  be  impleaded,  without  luym^', 
to  bedeternnncd  there  ■  for  IlTues between  Chancery-nicn  are  triable  at  Common  Law,  and  the  Plea  mull 
be  averr-d,  as  was  adjud-ed  in  ^LcblUtCouC-s  Cale.  ;  Keb.  552.  Mich.  2i  Car  2.  Fawkener  v.  Annis.- 
All  Proveedinc's  in  the  Pe:tv-Bag  Office  in  Chancery,  by  or  ag.iinll  anv  Miiuller  of  this  Court  .or  any 
Matter  or  Thine  dcrcrnunablc  at  Common  Law,  are  to  be  pk.^deJ  to  Ijjr.e  /ii  nt  Connnon  Law  ;  ^,>ri  the 
Record  thereof  to  be  deliiered  Per  nuwus  C.imetlarii  into  B. R.  orC.B.  at  the  Kledicn  of  thePlaintiff.  And  after 
Trial  had,  the  Record  Jhall  l>e  rernavded  ivto  this  Cert,  and  Judgment  fl:all  b;  given  here.  P.  R.C.  291. 

♦  Pe,.  Cur  Contra,  that  it  is  a  Matter  of  Law,  and  not  triable  per  Pais,  nor  traverlable.     1  Salk. 

30  Trin.  7  VY.  5.  B.  R.  Kirkham  v.  Wheeler. i  Salk.  545.  S.  C.  and  P. 

Skin.  5S2.  iS.  In  Cafe  p.giiinft  an  Attorney  he  pleaded  his  Privilege  thus,  viz. 

S.  C.  fays  Etprceditfas  A.  in  propria  perfona  fiM  dictt  qiiod  ipfe  eft  S  pr^di^lo  tempore 
tlie  Defcn-  (^hsb'tioiits  Billx  ipftiis  'Thonije  Stephens  ftnt  itntis  Clericoniiu  -Tbo.  Wififord 
hi!'pnlaTe-e  -'-/'•■  «''•  P'onotcn:  Cun£  Domini  Regis  dJB^^ico  apiid  V/cftru.  m  Coui.  Midd. 
in'this' Man^  iH  Off.cio  ftw  quotidic  intenden.  and  concluded  ivtth  an  A-oermrnt  gencrcUly^ 
ncr,vi/..  Et  'j.utlmtt  ivine>iing  any  Writ  of  Privilege  to  his  Plea.  To  this  the  Plaintili" 
fr^diH.ref.  f^(.n-mrr'd  i^enerally,  and  two  Objections  were  made  to  this  Plea,  ilh 
d.cit,  with-  p^^  ^j^^^  ^j^^  Defendant  did  net  fay  *  Voiit  as  well  as  Dicit,  lb  he  was  not 
llli^S^U-  in  Court  when  he  pleaded.  2dly.  For  that  he  had  not  laid  any  Fifne,  fo  as 
c,t,orwak-  the  Fafct  of  his  being  a  Prothonotary's  Clerk  might  be  tried  ^  tor  it  is  a 
i,.ff  avj  De-  j^j^tter  illuable,  and  the  rather  becaufc  the  Deiendant  hath  not  ihewcd 
nHt'wTthom  iinv  Matter  oi  Record  to  prove  his  Privilege.  Et  per  Curiam,  Both  the 
Ver.it  mi-ht  Objeaions  were  allowed,  and  the  laft  was  tatal,  becaufc  this  is  Matter 
beOrete-  of  Fatl  triable  by  a  Jury  i  for  Prothonotanes  Clerks  are  not  inroU'd, 
nus  &c.  but  y\,herefore  it  is  necellary  to  lay  a  Vifne  in  this  Plea.  Judgment  lor  the 
^°"h^  b"'"'*'  Pl'-iintiH;  (viz.)  that  the  Defendant  anfvver  over.  Carcn.  362,  363. 
ing»'0,^-  Mich.  7  \V^  3-  -B-  R-  Stephens  v.  Squire. 

before  Zmher  Day  of  Continuance  ;  but  if  it  was  at  another  Day  of  Continuance  after  the  Day  of  Appe.ir- 
ance  it  ouc-ht  to  be  Venit  &  dicit  ;  but  for  the  Want  of  Defence  the  Court  did  not  lecm  to  regard  it ; 
and  in  tlv  Ca<e  of  i^ifCkUMtl)  auO  ailV-'tleP  this  Term,  where  the  Defendant  pleaded  his  Pmilegs  as 
Attorney   of  C  B.  and   made  no   Defence   Holt  Ch  J.  laid  it  was  a  Chip  in  Porridge.     Skm.    582. 

Trin  -  W   -^     BR-  Stevens  and  Squire. ^wrf  Holt  Ch.  (.   iaid  m  this  Cale,  that  if  a  Prothonotaiy 

or  other  who  is  a  Per/on  privilfed  iy  Record,  pleads  his  Privilege,  and  brings  a  IFrit  of  PrizHe^^e  attelH-g 
it  that  this  is  conclulive,  and  the  Plaintili  may  not  iraverfe  it ,  bat  ocl.erwi;e  it  is  of  a  CUfk  or  Servant  ro 
fuch  Perfon  fo  priviletied.     Skin.  582.  S.  C. 

♦  Per  Cur  Venit  is  no  Part  of  the  Pica,  but  Dicit  begins  the  Flea.  The  Dicir  alone  fl-.ews  him  to 
be  in  Court  ;'and  here  it  appears  that  he  is  in  Cuftodia.  2  Salk.  544.  pi.  2.  Trin.  -  W.  5.  B.  R.  Ste- 
phens V  Arthur,  feems  to  be  S.  C.  r  .     r-  c  r^  -n 

To  an  4ain  qui  tarn  &c.  the  Defendant  pleaded  that  he  is  an  Attorney  ot  the  Court  ot  C.  B.  and  that 
Jttornies  ''ot  C.  B  are  net  ftiable  elfewhere.  1  he  Plaintiftdemurr'd.  I  ft.  Becaufc  this  Pica  is  only  in  the 
Keeuive  and  no  Turildiction  is  given  to  any  other  Court.  2dly,  Becaule  there  is  no  Dejence  by  Fenit 
hut  Dicit  only  Pel'  Cur.  As  to  the  Plea  being  in  the  Negative,  U  is  well  enough  ;  tor  the  Privilege  is  not 
traverfable  and  triable  per  pais,  but  a  Matter  of  Law  of  which  we  t.ike  Norice  ;  and  Venn  &  Dicit  or.- 
ly  are  fufficient  Defence  in  this  Cale.     2  Salk.  545.  Trm.  7  V» .  5.  B.  R    Kirkham  v.^A  hee.ey. 

If  he  is  ac-  19.  A  privileged  Perfon  in  the  Common  Bench  ^  may  be  in  Cuftodyof  ths 
tually  in  M.vrpal;  for  he  may  either  ■wai'oe  or  mifplead  his  Privilege  ^  and  it  ne  be 
Cuftody,  he  ^£^^^^1,.  y„  Cuftody^  and  it  appears  fo  by  Pleading,  he  cannot  have  his 
all  Aftions  Privilege.     12  Mod.  102.  Mich.  8  VV.  3.  Duncomb  v.  Church. 

here  onW  upon  Bail,  he  may  plead  his  Privilege  ;  for  the  SherifFcannot  take  Notice  of  his  Privilege,  lb 
that  he  muftgive  Bail.     Per  Holt  Ch  J.  Salk.  i.  pi  i.  S.  C. 

20.  And  \ione  plead  an  exempt  JarifdiCiion  from  all  the  Courts ^of  M'eft- 
minfter  and  not  to  be  [tied  but  in  fuch  particular  Courts  and  franc  hifes,  there 
you  mull  fhew  that  they  have  a  Jurifdiftion  of  the  Matter,  and  that  the 
Caufe  arifes  within  their  Jurifdittion.  Special  Imparlance  Ihould  not  be 
allowed  without  the  Leave  of  the  Court  and  Confent  ot  the  Parties.  12 
Mod.  102.  Duncomb  v.  Church. 

21.  Defendant  pleaded  that  he  is  one  of  the  Attorntes  of  the  Covt  of 
B.  i?.  without  faying  that  he  -juas  at  the  7ime  of  the  Jirit  purchafed,  and 

a.  Ke- 


Privilege.  5  -^  c^ 


a  Refpondeas  Oulter  was  awarded,     i  Salk.    i.  Mich.  8  VV.  3.  B.  R. 
Peafe  v.  Parfons. 

22.  Delendant  pleaded  that  he  was  an  Attoriiey  of  the  C.  B.  and  ought  -  Mq^  „- 
not  to  be  llied  elle where    without  his  Conlent  i  the  PJainciif  replied,  S.C 
that  he  did  confent  &c.  bat  laid  no  Vcnite  where  ;  and  therefore  bad.     Per 

Cur.   I  Salk.  4.  Mich,  i  Ann.  B.  R.  Ode  v.  Norcliffe. 

23.  The  Defendant  pleaded  Privilege  of  C.  B.  in  Abatement^  without  con- 
cluding to  the  Record.     Holt  faid  he  need  not  do   it,  but  he  may  leave 

-  Plaincirt"  at  Liberty  to  reply,  and  deny  his  being  a  Perfon  privileged 
there,  which  Plaintitf  can't  do  if  Defendant  conclude  to  the  Record,  and 
his  not  faying  Front  patet  is  no  good  Caufe  of  a  general  Demurrer,  and 
upon  Prout  patet  per  Record um,  there  lliall  go  a  Certiorari  to  certify 
the  Record;  and  if  they  produce  one  and  Ihewthat  they  have  Privilege, 
the  Plaintift"  is  eltopp'd.  7  Mod.  106.  Mich,  i  Ann.  in  B.  R.  Clifton 
and  Swez.eland. 

24.  In  Debt  upon  Bond  brought  in  B.  R.  the  Defendant  pleaded  his  '^  ^'^^^  fnov'd 
Privilege  as  Attorney  of  the  Court  of  C.  B.  &c.    and  that  there  is  a  ^^^^ 'rhe  De- 
CuJlo7n  in  that  Court,  that  no  Attorney  of  this  Court  foal  I  be  conipeir  d  to  an-  fhouM  put 
fwerby  Original  IVrit,  uiilefs  he  is  prejudged.     The  Plaintiff  re'/)//Vrt',  that  in  Special 
jorfive  Tears  la  ft  pajl.,  before  the  Original  filed,  the  Defendant  had  with-  B^il,  he  be- 
drawn  himfelj  from  the  Office  and  Praffice  of  an  Attorney.     Upon  a  De-  '"§  ^"  ^^" 
murrer  to  this  Replication,  it  was  objecled,  ilt.  Again'lt  the  Plea,  that  jarge^and 
the  Defendant  did  not  let  iorth  that  he  had  an\'  Clients,  whole  Suits  he  having  dif- 
profecuted  or  defended  ;  for  the  Reafon  why  an  Attorney  Ihould  have  continued 
his  Privilege   is,  that  he  might  be  attendant  on  the   Bulinefs  of  his  ^'sP^'^'ce; 
Clients;  and  when  the  Rcaion  ceales,  the  Privilege  ceafes.    2dly.  That  (iurtdid 
he  had  alleged  this  Cuilom  In  Fieri,  and  not  In  Fa6lo  j  for  it  is  that  an  that  Jttor' 
Attorney  lliould  not  be  compell'd  to  anfvver  &:c.  whereas  he  Ihould  ha\e  '""  "'  i^rge 
gone  on  and  alleged,  Nee  a  tempore  quo&c.  For  Ufagein  Fact  is  eflen-  j^^^^p'^?  . 
rial  to  every  Cultom,  Conipcili  conluevit.     But   the  Opinion   of  the  ig^g  ^/jt^*" 
Court  was,  as  to  the  firll  Objection,  That  the  Plea  prima  tacie  was  good,  the  Clerks  of 
and  not  avoided  by  the  Replication,  and  that  as  long  as  the  Defendant  the  Court, 

is  an  Attorney  upon  Record,   he  ought  to  have  his  Privilege.     And  as  ^""^  ^''^i° 
to  the  2d  Objection,  it  was  fiid,  the  Court  would  take  Notice  of  the  Pri-  Di^/fnDiem 
vilegeof  Attornies  oi  the  Court,  and  therelore  the  Cuftom  need  not  to  be  And  they 
fc)  ftiictly  alleged  as  other  Cuiioms,     And  Judgment  was  given  for  the  were  not 
Delendant.     2"  Lutw.  1664.  Hill.  2  Ann.  C.  B.  Routh  v.  VVeddell.         [*"^fi«,'^,t)}at 

^  _  he  had  dif- 

continued  his  Pradice.     Vent.  I.  Mich.  20  Car.  2.  B.  R.  Sir  John  How  v.  Woolley. 

25.  An  Attorney  of  C.  E.  being  fued  in  B.  R.  pleaded  his  Privilege.  Plain-  To  a  Pica 
riff  demurred  ipecially,  becaufe  he  did  not  conclude  with  a  Profert  hie  in  ^^^^^^  ^'^^ 
O/iv'i?  of  a  Writ  of  Privilege,  teltifying  his  being  an  Attorney  &c.     Per  ^f  (j_  3''"^^ 
Holt  Ch.  J.  The  DiJi'erence  is,  if  the  Privilege  of  an  Attorney  beplead-  was  objeded 
ed  with  a  Writ,  the  Defendant  cannot  be  denied  to  be  an  Attorney  ^  but  «"  Dcmur- 
if  without  he  may,  and  then  a  Certiorari  Ihail  be  awarded  to  certify '"^''' j^"^' '^'^ 
whether  he  be  an  Attorney  or  not.     2  Salk.    545.    Trin.  2  Ann.  B.  R.  pfducc  his 
Dillon  v.  Harper.  Writ,  and 

conclude 
T.ith  a  Piout  pater  per  Recordum  ;  and  alfo  that  he  laid  no  Venue,  alleging  no  Place  where  he  was  At- 
torney, nor  where  the  Court  of  C.  B.  fits.  Et  per  Cur.  vi?.  HoltCh  J.  to  which  the  reft  affentcd,  An 
Attorney  mas'  plcud  Privilege  with  a  Profert  of  his  Writ,  if  he  will,  or  with  an  Exemplification  of  the 
Kef  urd  of  his  .^ullJii^lon,  or  he  may  pleiid  it  as  he  doc;  here,  and  it  is  well  enough  ;  for  fo  are  the  Pre- 
icilcnt  ,  and  the  PLiintirf  may  reply  Nul  ticl  Record  ;dly.  There  was  no  Need  of  a  Venue  to  try  where 
he  was  ifttoriiev,  fir  it  being  a  Matter  conceiniog  liii.  Perfon,  was  triable  wh'?re  the  Writ  is  brought. 
.A»  to  the  ;d  He  v.ond-  r'd  how  that  cvs:r  cam^-  to  be  allowed  ;  for  tint  this  Court  lends  Writs  to  the 
Ch.  J .  of  the  C.  B.  by  that  Name  ;  and  unlcfs  w  here  this  is  held  to  be  Part  of  the  Defcription  of  a  Ke- 
sord,  it  can  never  be  necelTary.     2  Salk.  545.  bcawen  v.  Garret. 

26.  The  Delendant  f/^.'7i'/(Y/  in  Abatement,  that  Tempore  que  Memoria 
ncH  estat,  all  the  Clerks  of  the  .Queen's  Court  of  Exchequer  were  privileged 

from  being  fued  elfeivhcre  than  in  that  Court  ;  and  tbiit  the  Defendant  was 

6  T  Clerk 


534  Irivity. 


(^Jak  'to  R.  P.  tinn  Baron,  (fe  Scaccario  ficftro  frxdiHo.  Upon  Demurrer  the 
Cciirc  held.  That  there  were  two  Ways  oj  pleading  Pnvikge;  out  is  k,  ^q 
tu  Ijliii:,  and  it'  the  Party  is  an  Officer  on  Record,  to  /hew  it  by  prodiiciiig 
the  Record  i  it  he  is  no  Otficer  ot"  Record,  but  attendant  on  one  ot'the 
Barons,  that  inull:  of  Necelfity  be  tried  by  a  Jury,  becaule  the  Court  ot' 
Exchequer,  as  a  C^uirt,  cannot  take  Notice  ol  it  any  more  than  we.  The 
i,tha-  It  ay  IS  J  ij  he  le  an  Officer  on  Record^  then  to  produce  a  H  nt  of  Privi- 
lege at  the  lime  oJ  the  Plea  pleaded.^  and  then  no  J(lue  can  he  join'd  upon 
It  ;  but  here  the  Cultom  is  ill  pleaded;  Ibr Tempore  quo  non  extat  Me- 
moria  is  Nonfenfe,  and  it  Ihonld  be  Cujus  contrarii  AJemoria  non  ^i^cc. 
But  he  having  ihew  'd  that  he  is  one  of  the  Clerks  ot"  a  Baron,  the  Court 
ask'd  whether  they  ought  not  to  take  Notice  that  he  ought  to  have  Pri- 
vilege ?  But  it  being  anfwer'd.  That  he  did  not  aver  that  he  ■-^as  (JLrk 
to  one  of  the  Barons  of  the  .^neen's  Exchequer,  but  De  Scaccano  nojiro,  a 
Refpondeas  Oulter  was  awarded.  6  Mod.  30J.  Mich  3  Ann.  B.  R. 
Phipps  V.  Jackfon. 

27.  If  any  who  have  Privilege  of  Chancery  be  arretted  in  a  civil  Plea 
by  the  Procefs  of  any  other  Court,  he  may  ha\e  a  Writ  of  Privilege,  con- 
taining an  abiblute  Superfedeas,  and  requiring  the  Plaincilij  J^iod  fequa- 
tiir  in  Curia  Ubt  &c.  //  vuliterit.     P.  R.  C.  284. 

28.  Privileged  Perlbns  have  their  Writs  fialcd  without  Fees.     P.  R.  C 
285. 

For  more  of  Privilege  in  General,  See  3riXff,  attOrnCP,  partltimait, 
PCCl'Si,  and  other  proper  Titles. 


Privity. 


(A. )     Tht  fevcn?l  Sorts  of  Privities  and  Privies,  and  of 

ivhat  thcfy  mny  take  Advcmtage. 

I-  T)Rivity  of  Blood  lliall  not  be  between  two  oi  Half-blood.     Br.  Entre 
X     Cong.  pi.  27.  cites  21  E.  3.   1.2. 

2.  Trefpafs  agamji  two,  and  the  one  appears  firft,  and  the  Plaintiff 
counts,  unA  after  the  other  Dsi'endxat  appears,  and  the  Plaintiff  counts  of 
another  Day,  and  yet  he /hall  not  take  Advantage  of  the  Count  affirmed  by  his 
Companion;  contrary  of  Plea  to  the  Writ,  Releafe,  Dii'continuance&c.  for 
he  is  Privy  to  the  Writ,  but  not  to  the  Count.  Br.  Trcfpafi,  pi.  56.  cites  46  E. 
3-25. 

3.  There  is  no  Privity  between  the  hiciimbent  of  the  Bifl.mp  who  is  colla- 
ted by  Lap  fe,  andthe  Bijhop,  as  there  is  between  the  Majler  and  Servant. 
Br.  Incumbent,  pi.  12.  cites  i6  H.  7  6. 

S.C  cited  4.  There  are  three  Sorts  of  Privities,  viz.  Privity  in  Effite,  in  Blood, 
To  -Tm'  *"^  '"  -■^f'^.-  P'^'V'cs  in  Blood  are  intended  of  Privies  in  Blood  inheritable, 
Caife  ofGod-  ^"^  '^'"''^  '^  i"  ^^^'^^  Manners,  viz..  inheritable  as  General  Heir,  or  as  Spe- 
frey  v.         cial  Heir,  or  zs  General  and  Special  Hew.     Piivks  in  Fflate  dyn  as  Join- 

Th"''^' tenants,  Baron   and  Feme,  Donor   and   Donee,  Lelf  ir  and  Lellee  &c. 

tbreJother    P"vie3 /«  Z«ru  are  when  the  Law   without  Blood  or  Privitv  ot' Eltate 
Sorts  of  Pri- ^*'^*  ^^^  Land  upon  one,  or  makes  hisEntrv  lawful  as  Lord  bv  Efche.ir, 
vities,  viz.      Lord  that  enters  for  Mortmain,  Lord  of  Villein  &c.  8  Rep.  42.  b.  Hill 
in  i-efpeft  of  45  Eiiz.  Whittingham's  Cde. 

Efiate  only. 

Contract  only,  Ejlale  <r»(/ Co;;/r^ff  together.  Privity  of  Eftate  is,  A<;  if  tli°  L'Jfor  (rr.viti  ::;r  his  Rever- 
iicn,  {or  if  the  Reverjton  e/thtat  )  Now  between  tbc  Grantee  (or  die   Lord    by  Efcheat)  and  the  Lellre, 

theie 


Procefs.  535 


tlici'c  is  Privity  in  Eftate  only.  So  between  the  / r£}r  txtid  jJjfigvee  cf  Lejj'ee  ;  For  no  Contr.tit  was  made 
between  them  Privity  oj  Coritraii  only,  is  perfonal  Privity,  and  extends  only  to  the  Pcrfon  of  tlie 
Leflor,  and  to  the  Peribn  of  the  J-eflec,  as  in  the  piincip:il  Cafe  when  the  Ledee  allij^ned  over  his 
Interert,  notwithftandini;  hii  AHignnieiit  the  Privity  of  the  Contraft  rem.iincd  between  them,  tli(.uj;li 
Privity  of  the  Eftate  be  removed  by  the  Adt  (jf  the  Leflcc  himielf ;  and  the  reufon  of  this  is,  tiilt, 
becauie  the  LclVee  himfclf  fhall  not  prevent  by  iiis  own  Act  (uch  Remedy  which  the  Leflor  had  a- 
g.iinft  him  by  his  own  Contraft,  but  ivlicn  the  Leilor  granted  over  his  Keverfion,  there,  againit  iiis  own 
Grant  he  cannot  have  Remedy ;  becaufe  he  has  orantcd  the  Rcvcrfion  to  the  other,  to  which  the  Kent 
is  incident,  idly.  The  LelTee may  grant  the  Term  to  a  piK>r  Man,  who  fhall  not  be  able  to  manure 
the  Land,  and  who  will  by  Indigence,  or  for  Malice  permit  it  to  lie  fiefh,  and  then  the  Leflor  fhall 
be  without  Remedy,  either  by  Dilhels,  or  by  Action  of  Debt,  which  fhall  be  inconvenient,  and  will 
concern  inEft'cft  every  Man,  (becaufe  for  the  moll  part  every  Man  is  a  LelTor,  or  a  LeflTee;)  and  forthofc 
two  Reafons  all  the  Cafes  of  Entry  by  Tort,  Eviction,  Sulpenfion,  and  Apportionment  ot  the  Rent  arc 
anfwered  ;  For  in  fuch  Cales  it  is  either  the  Act  of  the  Leflor  himielf,  or  the  Adt  of  a  Stranger,  and 
in  none  of  the  faid  Cafes,  the  fole  Act  of  the  Lefll-e  himielf  fliall  prevent  the  Leflor  ot  his  Remedy, 
and  will  introduce  fuch  Inconvenience  as  has  been  laid.  Privity  of  Cenlr.xB  and  Efi.^te  together,  is  be- 
tween the  Leflor  and  Leflee  himielf  3  Rep  25.  Hill  2y  Eliz.  in  Walker's  Cafe. Lat.  i6o.  Ire- 
monger  V.  Newfam  S.  P. 

5.  Privies  ifiheritahk^  As  Heir  General,  y^i?//  take  Benefit  of  the  Infancy ,  PrMes'in 
as  if  Infant  Tenant  in  Fee  Simple  makes  Feotfment  and  dies,  his  Heir  Blood  pall 
fliall  enter.  The  fame  Law  ol  him  that  is  Heir  General  and  Special,  '^'^ 
and  alfo  of  him  that  is  Heir  Special  and  not  General.  But  Privies  in  of  Nmwge 
hjiate  (unlefs  in  fome  ipecial  Oi(^s) pall  not  tai<e  Advantage  of  the  In-  or  Cover- 
fancy  of  the  other.   SRep.  42.  b.  43.  V\  hittingham's  Cafe.  rure,  but 

in  L(.ix-  rcr  Privies  in  EJlaie.  Arg.  5  Buls.  272.  cites  8  Rep.  42.  Whittingham's  Cafe. 

rt.  A  Surrender  by  en  Ideot  o{  an  Eflate  for  Life  to  deftroy  a  Contin- 
gent Remainder  is  void  ab  initio,  and  tbereiore  any  Perfon  may  take 
Advantage  ol  it,  as  well  Privy  in  Ellate  as  Heir  at  Law.  But  a  Feoff- 
ment and  Lfjcry  made  Propnis  Manibtis  of  the  Ideal  not  being  merely 
void,  makes  a  Dilierence.  Carth.  436.  HiJl.  9  W.  3.  B.  R.  Thompfon 
V.  Leech. 

For  more  of  Privity  in  General,  See  ^itl,  Qflltjltment,  COnfirmattOtt, 
COijenantj  DCfCCnt,  JfinCiS  (X.  2)  and  other  proper  Titles. 


Procefs. 


(A)  Judicial.     How  it  ought  to  be  made. 

I.  T  JF  nn  Action  of 'BattCri?  U  brOUffijt  againft  B.  C.  and  D.  mtU  J. 
J    S.   and  ].  D.  are  Bail  by  Recogniz.ance  for  B.  and  C.  attD  not  for 

D.  nnti  after  iungiticnt  atxamft  X^*  C.  auo  D.  for  Coffs  nnn  Da^ 

niagCS  a  Scire  Faci.is  10  fUCO  tO  IW^C  €j;CCUtIOn  agaitlft  J.  S.  and  J. 
D.  tljCObail,  ant)  ti)C  StCireJfaCiajS  recites  the  Aaionand  Judgment 
aiiainlt  B.  C  and  li.  and  that  thc-y  were  Bail  for  B.  and  C.  and  that 
tne  faid  B.  and  C.  have  notlatisried  tIjC  3lttlSmcnt,  nor  rendered  tljCm= 

feliicfi  to  tljc  l35rifon,  anti  tljercforc  ttjcj'  fijaU  fljciu  Caiifc  U)l)|>  (Ejcccu^ 
tion  fi'i'iU  not  be  aiuartien  a«amft  ttjeni,  aim  tfjc  ^ctrc  laciad  10 
not,  tijat  D.  aixamft  luljoiii  tijc  JuHixmeiit  i£S  alio,  Ijas  not  fatiDfieo 
the  jutiivment  as  it  map  be  tljat  Ijc  Ijais,  nortbat  Ip.  ann  €♦  ba0 

not 


536 


Procefs. 

rot  fattjsficti  it  Ncc  eorum  aiiquis,  nstiS  urual,  vtt  tW  IS  il  (jooo  iiDn't , 
ior  m  ns  «Uid)  ass  tljei'tucre  1?ail  anli'  for  T\  anii  C.  itis  fiimciciit 
to  rnv,  accortfjiiii;  to  ti)c  CouDition  ot  tijc  Uccoijnijancc,  tljat  fii-p 
Ijnuc'not  rcnttcvco  tOenifclnco  to  l^rirun,  luitijoutiiimnffi^cc  coram 
aiiciiuy,  anti  uutliout  fiivinn:  nor  the  liud  d  for  itx^.  orC.  l)a\]e 
paiD  ir,  It  to  t!)c  [iJavmnit  cT botl)  i  ^nn  if  D»  tjns  pam  it,  it  oti.<ot 
to  conic  of  tljc  otijf  r  ^^art  to  be  fljeum.  p.  1 1  Cnr.  '2d.  U.  bctiuccii 
lianus  and  Hill.  aojiitJUCQ  upott  ii  Demutrcr*  3ntriitui:»  Dill,  lo 
car,  Eot.  B97. 

2.  Debt  by  the  h'xectitors  of  cfie  Parfon  ngaiiift  another  Parfon  ttpon  Ar- 
rears of  Annuity  arrear  in  the  time  of  their  I'eji-ator^  tht  Dekndant  firidy 
I'hdt  he  fund  his  Church  dil  charged.^  and  frayed  Aid  nfthe  Patron  and  Or- 
dinary, and  hud  \t.  The  Prothonocviry  was  in  a  Doubr,  it  he  lliuuld 
make  the  Summons  ad  Aaxihand'  to  the  Sheriff  of  L.  inhere  the  I-l-yn  was 
Irought^  or  to  the  Sheriff  of  K.  ivhere  the  Church  --juas  ;  And  per  Martin 
and  Hals,  becaufe  this  is  a  Judicial  Procefs  he  IIihI!  p^iiluc  theOrit^inal, 
and  itlhallbe  brought  firll  in  theCouuty  where  the  Original  is  brought^  and 
if  they  are  returned  Nihil  there,  then  Procefs  Ihall  be  made  upon  a  Tejfa- 
tiim  to  a  Foreign  County.     Br.  Procefs,  pi.  3.  cites  2  H.  6.  8. 


(B)  D'tjirlngas,     Diftiingas  upon  Tijlntum  at  the   Com- 
mon Law. 

ill  PC>i^  a  Diltrinn;a0,  if  tf)C  g)()criff  returns  a  Ji^ifnl  upon  a 

\j^  CCftatUni  of  AlTcts   in  other  County,  bl>  lUljfCt)  \)Z  UiaP  UC  Hl' 

ftfiitucti,  a  Difttintvn^  (Ijall  ifutc  into  tljc  otljcr  Counti'  -,  jTor  otUci-^ 
wife  tljerc  fljoulD  U  a  j~aUuix  of  KnxDt.    i  ^,  4+    6  e.4-  iJ- 

.  27   ID*  8.    22.    IJ» 

2.  So  if  upon  a  Diflrinrcasj  tl)c6i{)rriff  returns  Petit  iifucs,  fo  ti)at 

tlje  Parties  do  not  appear  U.pOn  a  (ilCllatUni  Of  AHets  in  OtfjCt  COlintP, 
a  DlltringaS  ITjall  iflllC  for  tljC  l5Cnclit  of  tllC  JUing  to  have  greater  ll- 

lues,  anu  tortljc  fpccoier  5iii^icc.    entries  fo.  226.  a,  Djftrcrs4- 
Cr.  30  V*  8.  Kot*  102.  j>,  18.  t>.  8.  Eot.  304- 


(C)  Upon  the   25  E.  3.  cap.   17.      Capias  or  Ex/gnjt. 

Dairuicu  I.  TJS  a  Detinue  of  a  Cheit  Mith  Charters  a  Capias  aitti  e;rin:rnt 
Bcxi^h^De^    .1  lies  bp  reafon  of tijc  Cljcft.  29  e.  3- 19-  b.  laojiiOucD. 

fcvHant  came 

t)  Ciiiias,  and  the  Ph^.ir.tiff  ccuiitedof  n  Box  ivith  Ch.irterj  covceniinx  Laiit^,  and  therefore  the  Defendant 
prayed  to  ir.ake  Attorney  ;  And  becaiiie  row  it  appears  by  the  Count,  that  it  touches  the  Realty,  there- 
tore  Capias  does  not  lie,   by  the  Opinion  of  all  the  Court;  and  therefore  now  he   fhali  make  Attorney- 

br    Exigent,  pi.  15.  cites  7  H.  4  2 ■ Note,  per  Mwmbrey,  that   Cj,  .v.i.   ues  J.r  Exerntio/i  vi    De- 

iir.ue  cf  .t  Ba^  cf  Charters,  bcctnfe  tlx  Bar  is  c?ily  a  Chattel,  and  Capias  lies  upon  the  Original 
ilicrcof,  and  therefore  Capias  may  he  Execution  ;  (^Ui-rc  indc  Atid  from  hence  fee,  that  \\  here  Capi- 
as is  not  the  Procels  upon  the  Orij^inal,  thatthcre  Ca  J>a.  is  not  the  E.vecutiun,  iii  fie  dixit  13elk.  ibi- 
dem, iir.  E.xigent,  pi.  8.  cites  40  E.  5  25 Br.  Froeeli,  pi.  iS.  cues  i>.  C. 

The  Capias  2.  2S  E.  3.  Stjf  5.  1".  Prutfs  fJrall  he  made  in  a  Writ  cf  Debt  and 
[^'^^\'^y  ^^^  Detinue  of  Chattels,  and  taking  of  Be'afis  by  IVrit  of  Capias^  and  by  Procefs 
^il^ihe'^Lom-     "/  ^^'Z^f'^  h  ^^■'^  Sheriff's  Rtturn,  as  ts  iifed  in  a  Writ  oj  Aicompt. 

y-on  L-VIV- 

Jer  .N.anwood  Ch.  B   2  Le,.  SS.  pi.  1 12.  in  CaQ  of  Ognsl  v  P.»!lon. 

^.   If 


Procefs. 


537 


3.  If  the  Difjcijtn  be  found  laith  Force  and  Jmn^  Capias  pro  fine  iluill 
be  awarded,  and  Exigent  thereupon.  Br.  Procels,  pi.  32.  cites  7  H. 
4-  39- 

4.  In  Replevin  JVithcnnan  zvjs  ^-wdrded  lor  the  Defendant  againftthe  Br  Reple- 
Plaintiii";  the  Sheriff  returned^  JJ>iiod Avaia  Klong.iti''  fiint;  there  NVitlier-  vin,  pi.  is. 
man  was  awarded  lor  the  Delendant  of  the  Goods  of  the  Pfiincitij  and  '•"^^"  S.  C. 
the  Sheriff  returned  Nihil ^   by  which  3  Capias's  ilfued,  and  at  the  PI  u- 

ries  returned.  Exigent  iliued  i  Quod  Nota^  that  the  Plaintiffmay  be 
outlawed  upon  his  own  Suit,  Br.  Procefs,  pi.  34.  cites  11  H.  4.  10. 

5.  Jiifiuies  to  the  Sheriff'  to  hold  Plea  upon  Obligation  of  1000  Marks, 
the  Julticies  was  removed  into  Bank  by  Pone,  upon  which  the  Defendant 
was  returned  Nihil ;  the  Pkintitf  prayed  Capias  ;  And  per  Martin  and 
Cockain.  the  Capias  does  not  lie  ,  For  the  Statute  which  gi\es  it  fays, 
in  Writ  of  Debt  Capias  lies,  which  is  intended  Original,  and  this  Jufhcies 
is  not  Original,  but  a  Covimifjion  to  the  Sheriff' to  bold  Plea  beyond  40  s. 
And  the  Sheriff  upon  this  cannot  award  Cupias  in  the  County,  nor  Ca. 
Sa.     Br.  Exigent,  pi.  5.  cites  3  H.  6.  54,  55. 

6.  In  -Trefpafs  the  Defendant  appear  d  and  had  Day  by  Dies  datiis  Szc. 
and  at  the  Day  vurde  Default,  by  which  iffued  Dijlritigas,  and  he  is  re- 
turned Nihil  3  there fba II  ifjue  3  Capias's  i3  Kxigent  \  Quod  nota  after  Ap- 
pearance.   Br.  Exigent,  pi.  6.  cites  19  H.  8.   i. 

7.  InTrcfpais  upon  he  Cafe  the  Plaintiff  had  proceeded  againft  the  De- 
fendant in  the  old  way  by  Pone  &  Dijlrefs,  and  the  Defendant  moved 
to  flay  the  Proceedings,  fuggelting  the  fame  to  be  contrary  to  the  Me- 
thod prefcribed  by  the  late  Act  of  Parliament  to  prevent  vexatious  Ar- 
reffs,  12  Geo.  &  2  Geo.  2.      And  the  Queltion  was,  >Vbether  by  thefe 
Statutes  the  old  Method  of  Proceeding  be  taken  away,  and  another  Me- 
thod inltituted,  or  not?  It  was  urged  for  the  Plainttfi',  That  before  the 
Statute  of  Marlbridge  no  Capias  lay,  that  the  ancient  Courfe  of  Proceeding 
was  by  Original,  and  where  the  Party  was  returned  attached  no  Procefs 
lay,  but  a  Diflringas,  except  in  Trefpafs  Vi  et  Armis.     In  this  Cafe  the 
Party  is  returned  attach'd  upon  the  Original,  and  no  Procefs  of  Outlawry 
lies.     The  hd  of  Parliament   12  Geo.  prefcribes  a  Alethcd  in  Ca:'es  where 
the  Caufe  of  A^ ion  is  under  10/.  and  the  Plaintiff  proceeds  by  way  of  Procefs 
againfi  the  Perfdn  ;  but  here  the  Plaintiffs  do  not  proceed  by  way  of  Pro- 
cefs againfl  the  Perfon,  and  afi:er  the  Original  returned  as  aforefaid,  no 
Procefs  againfi  the  Perfon  can  iffue,  and  confequently  the  Party  cannot 
be  ferved  with  Procefs.     There  is  alfo  an  Exception  m  the  Statute  12  Geo. 
as  to  Peers  and  privileged  Perj'cns,  who  are  to  be  proceeded  againlt  as  by 
the  Statute  12  W.  3.  but  that  can  relate  only  to  Cafes  where  the  Pro- 
ceeding is  by  way  of  Procefs  againfi  the  Perfon,  and  noc  by  A-fethod  of 
Pone  and  Dijirefs,  which  is  a  dilatory  Method  in  the  Ik'fcndanc's  Favour, 
where  Effoins  may  be  catt,  and  remains  as  it  was,  not  a f  erred  by  a>iy  of 
thefe  Statutes.     Per  Cur.  The  Statutes  of  Marlbridge  and  is  t'-^-  3-  i^"  «of 
take  away  the  ancient  Afethod  of  Proceeding  by  Original  and  i)ijlringas  ;  But 
where  it  is  returned  upon  the  Original,  That  the  Defendant  hath  nothing 
whereby  he  can  be  attach'd,  a  Capias  againlt  the  Perfon  may  be  ilfued, 
and  a  Proceeding  to  Outlawry  carried  on.  The  Words  of  the  St.itute  12 
Geo.  extends  only  to  Proceedings  by  way  of  Procefs  againji  the  Perfon,  and 
feems  to  admit  Plaintiffs  may  proceed  oiherwife,  as  before  ;  And  it  would  be 
hard  to  fay.  This  Claufe  hath  repealed  the  Law  by  Implication.  As  to 
Proceedings  againll  privileg'd   Perfbns;  a  new  Method  by  Bill  is  pre- 
fcrib'd   by  the  Statute  of  12  W.  3.  but  the  Law  noc  alter'd.     Let  the 
Rule  to  fhew  Caufe  why  the  Proceedings  fliould  not  be  flay'd  be  en- 
larged. Notes  in  C.  B.  292.  Trin.  10  Geo.  2.  Bias  and  Wife  and  Good- 
fiefh  V.  Lyell. 

6  U  (])) 


^c^S  Procefs. 


(D)     l^Mt  Procefs  fhall  be  a'warded. 


1.     A    Capias  fljall  nOt:  IJC  aftliUlietJ  before  a  Summon?,  UUt  tI)C  firft 
ment  the      tUieClt  Btwks  SUD  Pembktmi.      Sjtijntlff'D. 

Defendant       2.  Aifo  a  Capias  cannot  be  fnft  aujarncti  Oefore  aiiD  Summons 

juftihcrd         by  Cuftom  of  :u.v  Court,  fOU  It  IS  COnttavp  tO  tljC  LaUl.     \*>,  16  Ja. 

pias'  df-'     "B.  K.  bctujccn  ii^^/^j  aim  Paniuton.    sinniOfc'D. 

reded  10  him  upon  a  Suit  commcnc'd  againft  the  Plaintiff  in  an  infei-ior  Court;  the  PLiintift  demnrr'd 
bccaufe  it  was  not  fhcvvn  that  a  Summons  ilTiied  firft,  and  inferior  Courts  can  award  no  Capias  but  upon 
a  Summons  flrfl  return'd.  Hale  Ch  J.  faid,  Tliat  the  ordinary  Pradicc  of  thofe  Courts  to  grant  a  Ca- 
pias without  a  Summons  is  a  great  Abule,  (b  that  the  Party  is  driven  to  Bail  in  cve-y  t'ivial  Action  ,  and 
tho*  upon  a  Writ  of  Error  this  Matter  is  not  aflignahle,  bccaufe  a  Fault  in  Procefs  i>-  aided  by  Appear- 
ance &c.  yet  falfe  Imprifonment  lies  upon  it,  and  the  OiHcer  cannot  julfify  liere  as  in  Prore's  out  of  the 
Conrts  of  VVe(i:minfter  ;  And  Judgment  for  the  Plaintiff.  Vent.  220.  Trin.  24  Cir,  2.  B.  R  Read  v. 
Wilmot  — -=  S  C.  of  Read  v.  Wilmot  was  cited  by  Powel  J.  in  the  Cafe  of  (©b  mne  v.  ^ool  Sc  al. 
■who  faid,  That  tho'  he  has  as  great  Refpectas  any  Man  for  the  Opinion  of  Hale  Ch.  J.  yet  he  cannot 
agree  to  this  Judgment,  which  he  faid  was  given  upon  the  firft  Argument  upon  a  Difplcafure  conceiv'd 
againft  the  Male  Practices  of  inferior  Courts  in  this  irregular  Way  of  Proceeding,  but  that  it  certainly 
is  onlv  a  Procefs  Inverfo  Ordine,  and  erroneous  only  ;  and  that  in  the  Cafe  cf  lUarD  v  (SllarD,  Cro.  ]. 
261 .  it  was  held  to  be  Error,3nd  that  fo  is  S^argft  and  ii;^arl)CJ''s  Cafe  Palm.  449.  and  that  no  Cuftom  of 
anv  inferior  Court  will  make  this  Procefs  good  ;  but  that  iy  the  Cuftom  of  Loniton,  v-hich  ii  covfrm'ci  by  Jit 
ef'P.irH.imi'nfythh  Procefs  is  held  good  in  S^ackallfV'sCafe  9  Rep.  6S.  But  it  there  appears.  That  with- 
out this  Cuftom  it  would  be  onlv  erroneous  Procefs;  And  fays.  He  fees  no  Reafon  why  Officers  of  the 
fuoerior  Courts  fhould  be  thought  more  knowing  than  thofe  of  the  inferior.  Lutw.  ij("\.,  1565.  Mich. 
4W.  &At. 


(E)     //Z'o  mijy  cnmrd  the  Procefs. 

I-  T  Jf  a  il5an  tic  outlaw'd  bclbre  the  Juflice.s  of  the  Peace  in  their  Sef- 

i  hons,  tlje3iufficcs  of  tlje  l^eace  may  aumrn  a  Capias  utiagatum 

tljCrCUpOn  ;  foe  the  Court  which  can  outlaw  a  S^an  may  alio  award 

Procefs  Of  CutlaiBtD*   9d^  10  ja.  05*  \f>tt  Ctirianu 

2.  '2rt)e  fame  latU  of  jultices  of  Goal-Deli  very.     S^lClj.  loJa.'B* 

pet  Cunam. 


(F)     Execution. 

Bailiff  ftcod  I.  T  jf  a  Special  Bailiff,  by  ifOtCC  OfaM'arrant  upon  Capias  in  Procefs, 
attheStrect-      J^  enters  into  theHoufe  of  J.S.  the  Door  being  open,  and  there  takes 

^°°\;.^f  J.  D.  againft  iiiijom  tljc  ilBrit  is,  tijc  [Grocers  is  uicll  rcrlieo  as  to  % 
vam  up '''"  D*  ann  all  Stfangcts,  Smt  if  anpetramjci  rcfcucs  Dim,  fjc  at  loljofc 
Pairof  Stairs  %\\\x  \)t  (s  attcftcti  fljall  ijanc  Ijis  Action  affainU  tljc  Stranact.  Cr. 
inadifguis-d  i6  ^jj^  '25^  jj^,  between  Hodges  ann  Ahrkts.   dtmiusco  upon  iDt-- 

Habu  with      ,,ttfi-rf 
theWarrant,  UHllClU 
who  laid 

Hands  on  W.  R.  and  told  him.  That  he  arrefted  him.  Holt  Ch.  J  doubted  if  this  was  a  good  Jrrcft, 
being  done  by  the  Bailiff's  Fcllcwer  or  Servant,  and  rot  in  the  Pre/erne  of  the  BaiUff  himfelf;  but  (aid.That  the 
Plaintiff  muft  prove  hisCaufe  of  Action  againft  W.  R.  and  muft  prove  the  Writ  and  Warrant  by  pro- 
ducing fworn  Copies  of  them.  And  he  mult  prove  the  Manner  of  the  Arreft,  that  it  maj;  appear  to  the 
Court  to  be  a  lawful  Arreft  ;  and  in  Point  of  Damages,  he  nr.uft  likewife  prove  the  Lofs  of  his  Debt, 

\\z.  That  W.  R«  became  Infolvcnt,  or  could  not  be  retalten      5  Salk  511    Anon. — 6  Mod.  211. 

Trin. 


Procefs.  5qp 


Trin.  ;  Ann.  B- R.   S  C.    By  Name  of  Wilfon  v.  Gai-y. If  a  Bailirf,  having  a  Wnrra-it  from  a 

Sheriff  on  a  Capiis,  fentis  another  in  his  Room  to  arrcll  the  Perfon,  fuch  Arrelt  is  illeg.il      Per  Holt  Ch 
J.  1 2  Mod  :  3 .   Trin.  ;  W.  &  M.  Anon. 


(G)     y4t  ivbat  Time  the  Procefs  may  be  executed. 


I 


IJf  a  Latitat  returnable  Die  Lun^  proximo  PoftCmGinum  ^flllCta'  Theutm»ft 
CnnitilttjS,  which  was  this  Year  the  loth  ot'July,  COmC0  tO  tljC  Len^^th  of 

S)l)cnff  to  tirrcft  31.  ^*  ti}c  @)l)crlff  map  nritft  I)ini  t!)c  laiD  icth  Dav  ?'''"'■'  1''= 
ot  July.   €:r.  3  M*  15. K.  bctiuccn  M,y auD  /^^p^r,  tip  Jcnncr ana  ul^^T 
^auerton  agixcD.  i„g  a  writ 

is  the  Day  crt 
ivhich  'tis  returnable,  and  lis  not  executable  that  Dav  any  longer  than  the  Court  Hts.  I  Salk.  312.  pi.  S„ 
Pafch.  3  Anns.  B.  R.  in  the  Cafe  of  Perkins  v.  Wollalton. 6  Mod.  130.  S.  C. 

2.  So  a  Capias  in  Procefs  maP  DC  CtCCtltCSl  the  Day  of  the  Return 

tljctcof* 

3.  So  a  Capias  ad  Satisfaciendum  map  ht  CCCCUtCD  tIjC  Day  Of  tljC 

l^ittmw  tljcreof* 

4.  If  a  Writ  of  Enquiry  of  Dama2;es  bC  rCtUmablC  ©Ctabld  03t-'  *  Cro  E. 

djaeltsj,  ttjc  giljcriff  niai)  take  m  Jnqiicft  atio  mciiiirc  of  tljc  Dania^  ^^j-  ^^  , 
gc0  tlie  Dai>of  tijc  Ectttrn,  ann  attcciuatDS  return  it  tlje  fame  Dav,  c^c^T 


leer  V. 


ann  tijis  Wx\t  is  lueli  crccuten.   ^^r.  ^ s  ei.  13.  E,  between  *  GV:f t;/  Bu.kk 
auu  Z/^-//o:i-.    latDuniVt".    ^nu  tljerc  ijs  citcQ  to  be  aimiijiT'n  accort!=  c^eQ»ecn.- 
mglp  m  *  Bagkv'ti  Cafe,  toijtclj  luas  ^ict).  1 1  Car>  ^,''\^'^f5"- 

15.1^.  betiucen  suuiuhy  anti  /r^^^r.-.v^v  in  Uep!c^in,tljeuar!t  to  inquire  eked  mo 
for  Daman;e0  for  tictainino;  of  Eent  crecuteti  the  lameDay  ot  the  -n.  pi.y9s. 
Return,  tljat  IS  to  fav,  tljc  ClToinin  Dau,  ann  t^cr  Curiam  gooti.  '^I'ch  41  & 
Tout  neiu  Wnt  was  aiuaroeD,  becatife  tijc  DamaL^es  mere  erceffibe.  ^c  r '?  "J 

Woolky  V.  iMoofley But  if  the  Inqucll  h.id  been  taken  the  zd  Day  of  Craft.  Trin.  and  before  the 

4th  Day  of  Craft.  Trin.  it  had  not  been  good.     Cro.  E.   iSo.  Pafch.   32  Eliz.  Bu^bcrd's  Cafe. 

5.  Jf  upon  a  W>K\t  to  inquire  of  Damages,  tljC  Inqucft  be  impan-  *  S.C  &  P', 
ncU'd  the  Klibin-D;iy,  and  the  {ury  then  hear  tlieir  Evidence,  but  give  cited  to  have 
their  Verdicl  z  or  ?  Days  after,  "pct  tljIS  IS  Uiell  ereCUttD.     9^\i%    1 1  juXV«,od  • 

Car.  TS.  K.  \\\  tljc  ram  cafe  of  st.uHesiy  aiiD  nate-uL^n^  faio  bp  for^hc  jur/ 
iones  aiiD  X^arklev,  Cljat  tljis  uias  ati)utin;'D  in  *  Bugber^  cafe.      ^•'"'^ 

charged  at 
tlie  firrt:  D.iy,  tlio' they  trave  not  their  Verdict 'rill  2  Days  after,  it  fliall  not  prejudice  the  Par'iv  ;  hut 
the  Verdict  bcirg  f^iven,  fliall  relate  to  the  flrft  D.jy  of  the  Return,  and  fhall  be  fiid  to  be  executed  upon 
rhe  firft  D.iy,  to  whicii  it  fliull  have  Relation  ;  And  for  that  Realon,  Popham  Ch.  J.  who  befire  dif- 
fer'd,  apjrccd  in  tlie  principal  Cafe,  That  the  Writ  was  well  executed.  Cro  E.  468.  (bis)  P.ifch.  "9 
Elii    B'R.  pi.  26.  Gawen  V.  Ludlow. 

6.  Jf  a  Xih  Prius  bC  tillien  after  the  ill  Day  o^  the  Return,  and  be- 

lore  the  4th,  it  isuot  gooH;  fot  tlje  Suftices  ija^f  no  poujcr  to  take 
It  after  tlje  Dap  of  tljc  Eetur n.    3  3  ip.  6. 45-  b.  anjuosco.   '€u  3  ^ 

7.  But  if  t^je  M^  prius  be  tatot  tljc  Day  of  the  Return,  or  before, 
and  tlje  'i^W>  do  not  give  their  Verditt  'till  2  or  3  Days  aliicr,  becaUlC 

tljei)  cannot  agree,  y^tx  it  is  txooD  cnougl) ;  beraufe  otbenuife  tljc  jurw 
map  proubicc  tlje  l^arttejS  bp  tljctr  Diiagreemcnt.  cr.  3  s  Ci.  15,  E. 
per  iisDopbam. 

8.  So  It  IS  of  a  t^rit  of  inquiry  of  Damages  takCU  iU  fUCt)  CT^anUCr. 

'SJTr.  ^8  cu  15,  E.  i:^er  j-)opbam.  9nQ  tbcrc  fata,  Cljat  it  luas  to 
nQ)UDs'o  i»  Bi,ober'%  cafc. 

9.  If 


540 


Procefs. 


S.c.  cited         9.   "^fil  $^nU  be  outlawed  after  the  firft  Day  ot  the   Return  of    tljC 

Per  Cur.  jj^ritlt  i£i  erroneous  ^u;)«6. 46.  Tain  to  be  oftentimes  lo  anninecD 
pi' M  Pa'dl  bp  tije  anijicc  of  all  tljc  IJufttces, 

»2  Elii.  B. 

R.  in  BUgbCrO'ff  Caff,  and  took  a  DifFcrence  between  tlie  executing  a  Writ  ot  Imiuiry  of  Damages 
and  the  (".alt  of  an  Exigent,  and  of  the  retiire  facias  ad  DtemOcl.iih,  there  the  Day  is  excluded,  but 
not  in  Writ  of  Enquiry. 

s  P.  for  this    10.  '2Cl)c€'l3ertfFupona  Capias  in  Procefs  cflmtot  nrrcK  tljc  part}? 

is  one  and      gf^j.^.  ^1;^.  jj),„.  yfthe  Return,  and  before  the  4th  Day.  33  }1>,  6.45.  b* 

the  fame  ■'  . 

Day  in  Eft'eft,  and  when  the  firft  Day  is  paft,  his  Authority  is  expired    Rr.  Procels,  pi.  \6t).  cites  S.C. 

• In  Trelja's   for  Battery  and  Imprifonment,  Defendant  juftified  by  Execution  of  a    Writ,  bun 

upon  the  Plea  it  appeared  to  be  executed  after  the  Day  of  the  Keturii,  but  before  the  i^hiarto  Lie  poj}.  The 
Execution  was  adjudged  illegal,  and  judgment  for  the  Plaintifl.  Lev.  f45.  Midi  16  Car.  2.  li.  R.  El- 
lis V.  Jacklon.^ Sid.  229.  S.C.  accordingly. 

1 1.  If  a  Man  vouches  two  as  Heirs  ^  the  one  of  fall  Age^  the  other  li^ithin 
Age,  and  prays  that  the  Parol  demur,  and  the  Demandant  lays  that 
he  is  of  full  Age,  and  prays  Venire  facias  to  be  viewed,  Procefs  Jliall 
idiie  againlt  him  of  full  Age;  Per  Markham  ;  but  Newton  e  contra  j 
and  that  tio  Procefs  Jhall  ifftie  till  the  other  be  adjudged  to  be  of  full  Age.  Br. 
Procefs,  pi.  61.  cites  19  H.  6.5. 

1 2.  A  Uritby  theRollwds  azvarded  ret  urn  able  oiiWednefday,  but  was  made 
returnable  on  the  Thurfday,  and  executed  on  the  Thurfday.  The  Writ  was 
ordered  to  be  amended  according  to  the  Roll,  and  the  Execution  upon 
the  Thurfday  void.  Cited  by  Windham  J.  Lev.  143.  Mich.  16  Car.  2. 
B.  R.   in  Cafe  of  Ellis  v.  Jackfon. 

13.  In  falfe  Imprifonment  Detendant  juftified  by  Arrcft  on  i\  Latitat. 
Plaintiff  replied,  that  the  NN'rit  -ucas  taken  out  after  the  Arrejl.  The  De- 
fendant demurred.  Per  Cur.  The  Writ  bemg  antedated  is  no  Jultifi- 
cation  and  Judgment  for  the  Plaintiff.  3  Keb.  213.  Mich.  25  Car.  2. 
B.  R.  Chancy  v.  Rutter. 


(H)  Who  may  execute  it. 

I.  ^Tatute  of  Lincoln,  II  E.  2.  inMagna  Charta,  fol.  109.  b.  and  that 
(^  the  Executions  of  Writs  which  ihall  come  to  the  Sheriffs  be  made 
bpttje  IpilUDl'CDOtJiJ  known  and  fworn  in  lull  County,  and  not  by  others, 
it  it  be  not  in  great  Default,  or  notorious  Diilurbance  of  Hundredors, 
and  then  let  them  be  made  by  others  covenable  and  fworn,  fo  that  the 
People  might  know  who  ihall  ferve  fuch  Executions,  laving  all  Returns 
of  Writs  to  thofe  who  have  and  ought  to  have  them. 

2.  Treipafs  of  Battery  in  Middlefes^  and  the  Plaintiff  counted  in  the 
Palace  oflPeJlnunfler  where  the  Sheriff  has  no  Jurifdi^ion  ,  And  per  Mar- 
ten the  Count  Ihall  abate  5  For  it  is  Infra^  and  not  De  i  for  the  Palace  is 
no  Part  of  the  County^  toT  Procefs  pall  tjftie  immediately  from  the  Court 
to  the  IVarden  of  the  Palace,  and  not  to  the  Sheriff,  and  therefore  he  may 
diredl  Precept  to  the  Warden,  as  in  Cafe  of  a  Liberty  within  the 
County.     Br.  Count,  pi.  77.  cites  2  H.  6.  7. 

3.  Writ  Pall  not  be  ferved  part  by  the  Sherip,  and  part  by  the  Bailiff  of 
the  Fianchife  by  Parcels  3  Quod  Nota.  Br.  Procefs,  pi.  33.  cites  8  H.  4. 
17. 


(I) 


Procefs.  541 


(I)  Uljat  fliall  be  faid  a  good  Arrejl  in  Law. 


i>cc:  Ai-rclt. 


1.  Tjf  three  Writs  of  Capias  in  Procefs  ;it  the  Suit  of  J.  S.   againrt   f.l)  ThcAn-cfl, 
^  bCtlirCCtCD  to  tIjC  ^IjCiiiT,  nnO  tljC  €)l3Cnff  nuiUCS  three  Ipecial  withcuThar- 
Warnmts  to  one  Ipecial  Baililt;  and  he    CaUlCS  tO  ll,  D»    tlUO  ^'-irelts  J.''|;/:';-'hi,'"' 
him  generally,  UlltljOUt  fljeiumn;  Ul  lUljlClj  SCtlOll,  HOC  15  It  UCmanilCU  Hand,  and 

ofijihi ;  but  immctiiateli)  upcrn  ti)c  arrcft  a  ^tramrev  rcfciiEoi  ijnu,  iiavin-aii 
Clftton  upon  tljc  Citftlics  iigatnll  ttjc  ^tranijct:  foe  all  three  Reiiues ;  ^^^  vvai-- 
jfor  tuts  luad  ;x\\  arvcl!  in  Lata  upon  all.   Cr.  16  :ja.  -B.  U.  an-  hi,n'was°'' 
jungli  bctinccn  ponscsi  ano  '^^^K\\^.  wdi  cnougi,. 

thougii  he 
did  not  fhew  by  which  of  the  Warrants  he  arretted  him  ;  for  lie,  being  under  the  Bailiff's  Anell,  is  in 
Cnllody  there  for  all  Caufes  for  which  tlie   Slvcriff  had    made   his  Warrants  agaiaft  him,   though  the 
Sheriff  or  Bailiff  do  not  mention  any  ipecially.     Cro.  J.  4S6.S.  C. 

2.  So  iftljCUSritS  aUO  tiDarrantSS  tnerC  at  the  Suit  of  three  feveral  Cro.  J. 48 5. 

Perfons,  anil  tljc  OSailitf  arccilcj  ijuu  gcnerailD  as  Ucfore,  tlM  is  a^  ^■ 
pou  arrcs  foe  all,  ants  all  fljall  i)a\3C  laaions  for  tUc  ixcfcuc*    Cr* 
16  ja»  ^*  l\.  between  //(^^^o-  ^//^  .Wrr^.f  per  Ciu'iaui* 

3.  if  a  Warrant  bC  directed  b)J  tljC  %\)ZX\fip  Of  London  tO  Certain  ^^hena  Bai- 
gierjCantS  tljere  CO  takeA.  B.  a  COUntCfS  upon  a  Capias  ad  Satista- '^'™^-^  *" 
ciendum,  auti  tljC  Serjeants,  for  Pear  of  h  Reicue,  procure  the  l^artp  w.uTant,  he 

Plaintirt  to   enter  an  Aftion  of  icoo  1.  againlf  the  fime   K.  E.  by  the  ought  to  }iew 
Cultom  of  London,  whereupon  they  would   arrelt  her,  and  carry  her  theCmje  of 
to  the  Compter,   and  there  charge  her  in  Execution,   Cintl  after  tt)e'€)Cr=  ^''^  '^'''■'^'*» 

jeantiS  come  to  a*  15.  anu  fanijat  tijcp  arrcft  Ijer,  iuitljout  lamnfftLtVaV- 

niOrC  ,   ©310  General  Arrelt  CiilUlOt  be  bp  fOtCC  Of  tlje  J©rit  Of  ^CC--  rcits  him  on 

cutton  i  for  uiijcn  tije  ^^ijcriff  or  otijer  ]i)erron  bp  Ijis  Sutljonti) «"  £xccuti- 
niabcs  Clrreft  of  tljc  ii)erfon  of  anotbcr,  [Ijcj  ought  upon  the  Arreit  to  h";;';^,'^^*;'/ 

fhewat  whole  Suit,  out  of  w  hat  Courr,  lor  what  Caule  \)Z  QOe0  It,  and  Moncy"'^ ' 
when  the  Proceis  is  returnable,  tO  ti)C  :JntCnt,  if  it  bC  fOt  aUP  €^ecn=  And  if  it  be 

tton,  tljat  l)C  fljall  papit  ann  free  ijis  looup,  or  agree  mitl)  tijc  par=  uponAppear. 
ti',  or  put  \x\  OSatl  accbrmn'T  to  tije  La'o),  aim  to  hnoui  mljen  ije  fljall  ^""' ^,'; ,, 
appear.  Co.  6.  Coumfs  of  R'uthuid.  54-  EcfoliiCtJ.  Sirt.  and 

the  Day  of 
Appearance  comprifed  in  the  Writ,  otherwifethe  Arreft  is  not  £;ood.     And  yet  a  linKvyi  OfiLcr  fliall  not 
be  compelled  to  Jhew  his  U'arr.ir.t  as  a  fpecial  Bailiff  fhall,   but  though  he  has  a  Warrant  and  will  not 
Ihew  it,  yet  he  ihall  declare  to  the  Party  the   Caute  of  the  Arrelf      Mo.  767    pi.  1065.  Mich.  ; 
fac.  in  the  Star-Chamber.  S.  C. 

If  Procefs  be  delivered  to  the  Sberif,  and  he  takes  the  Party  without  fiying  any  thing,  it  is  good  ; 
forotherwife  the  Sheriff  fliall  be  a  Trcfpaifor,  which  the  Law  does  not  intend,  and  the'  Sheriff' has  a 
lawful  Authority  fo  to  do  ;  and  fo  it  is,  though  the  Sh^ritl  had  ?ijt  the  Procefs  about  him  at  the  time 
of  the  Arrelt.  Nov.  51.  Beale  v.  Taylor. 

4.  Upon  a  Capias  in  Procefs  at  t\}t  %\\it  Of  3I»  ^.  If  a  Special  Bai-  Andthoug'b 

lift"  bp  force  Of  a  r©arrant  to  Ijim  mreftcti,  arreits  tbe  PartP,  t"iD'^^=^)^'^5^'"' 

does  notfiy  at  whole  Suit,  nor  iaitdemanded  of  him  atWljafe  ^Utt  it  Pocket,  and 
is,  but  immediately  upon  tijC  3rrCft  a  Stranger  relcues  him,  tljtS  iS  he  only  ibid, 

a  goon  arrcd,  anti  an  action  lies  aiTamft  tbc  €>tran(rer  i  lor  Ijc  tjan  H^e  i  do 
not  time  to  fljcui  at  tubofe  Suit  it  was,  nor  is  Ijc  bounn  to  fljeiu  at  u^'vinuerf 

iDbOfe  ^UitltlS,  before  tbatbC  fias  peaceably  lubmitted  to  theAr-^'v^^^^J 
rell.  '(IDr.  i6  3"a.  13.  H.   UmZZW  tiJgis  and  Markcs.  :iil)Ulin:CQllpiJn  which  I 

Demurrer.  fj^y*-'-  ^'^ 

did  not  (new 
him  the  W^vrant,  nor  had  it  in  his  Hand,  yer  it  was  rcfolved,  that  this  was  a  good  and  legal  Arrell, 
and  that  he  needed  not  to  ihew  the  Warrant  till  the  other  obevrd  and  demanded  it.  Cro.  J.  4S5,  48^. 
Trin.  ifijac  R  K  S  C. 

6  X  5.  A 


54'^  ^^'^^  Confciro. 


5.  A  Man  who  i.s  Sbcnjf  of  Lo>j(iofi  aud  Mitlfkfex,  or  oi'E/flx  and  Hert- 
ford^ cannot  tdkc  a  Man  m  'the  one  County  iy  Qipias  din-clcd  to  hiui  m  the 
other  County  ■■,  but  a  Man  taken  in  Middlefex  Ihall  be  brought  toNewgice 
in  London  i  for  this  is  tiic  Gao!  ul"  bt-th  Counties.  Br.  Procds,  pi.  168. 
cites  16  E  4.  5,  6. 

6.  J.  comes  to  the  i)herijf\  and  tells  him  he  has  a  Writ  againft  B.  who 
is  then  preCent^  and  on  this  the  Shcriti  lays,  I  will  take  his' vVord  lor 
his  Appearance,  liiis  cannot  be  taken  tor  an  Arreft.  Arg.  Vent.  118. 
Pal'ch.  23  Car.  2.    B.  R.  in  Cafe  of  Methvvin  v.  Hundred  of  Tiiiltie- 

-  M  d  8  S  P  ^'°''^^- 

^non— S.P.  7-  -^  'RsW'iR caught  one  by  the  Hand  at  a  Windoia  whom  he  had  a  W;'r- 
2  Roll  R.  rant  to  arrelt  ;  This  was  fach  a  Taking,  that  the  Baililf  might  juitiiv 
i;S.  Sir  breaking  open  the  Houie  to  cirrv  him  away.  Vent.  306.  Hili.  28  & 
y^.'*".'^"^  ,     20  Car.  2.  Anon. 

For  more  of  Procefs  in  G'-  leral,  See  ^rrcft,  COntCnipt,   (J?.rfClItiait 
and  other  proper  Titles. 


Pro  ConfciTo. 


(A)     In    what    Cafes    a   Bill   IKall    bs   taken   Fro 

Confeilo. 

.S  p.  Toth.     I.  Y3  E C  A  U  S  E  the  Defendant  /rort'  o//f  ://  Procefs  of  Contempt  for  not 
ioo.  cites  10      Jq  anfwerin?,  the  Biil  was  taken  Pro  GonfelFo"     Toth.  100.  cito^sS 

fcnford  V     Eliz.  WildgofsV.  Ragland. And  11  Jac.  Denton  Mill  v.  Brown. 

Gcrraid.        Ibid,  citcs  1 3  Jac.  Earl  of  Oxon  v.  Gouch. 

f'eridivit  poi-d  ill  QrUmpt  for  not  anfwering  the  Plaintiff'.s  Bill,  and  therevipon  a  Sequeftrati.o;i  wa>;  pi-i  it- 
"ed,  and  It  was  likcwifc  decvfed.  That  the  Bill  poiild  bf  taken  Pre  Co::fejfii,  laile/s  the  De;si:ita>it  jhe-.v  C.uij'e 
nvitim  a  artnin  Time  limiied  for  that  Purpofe  by  the  Court.  But  this  muft  b;:  underltood  (as  the  C'a<e 
then  was)  where  the  Defendant  had  appear'd  ;  for  if  he  did  not  appear  at  all,  hut  rtood  out  all  Con- 
tempts to  a  Serjeant  at  Arms,  no  Decree  can  be  hadagainft  him,  or  the  Bil'  taken  P  o  ConfeiVo  ;  for  t!iat 
mult  be  after  an  AppMrancc,  a^d  v  lien  he  ftands  in  Contempt  for  want  of  an  Aal'vver.  N.  Cii.  R.  i,  ; 
Pafch.  I  Car.  Okehani  v.  Hall. 

Where  the  Defendant  has  >:ot  a-ppeard.  Chancery  can't  decree  the  Bill  Pro  ConfcHo,  but  ordered  a 
Sijf.efiration  againft  his  Real  and  Perfonal  Eltatc  "till  he  clear'd  the  Con'cnipt.  2  Cli  R.  .i?4.  ;  5  C;n-  2. 
Nodes  V.  Battle 

The  Courfe  of  the  Court  now  i,s  to  take  a  Bill  Pro  ConfefTo  after  the  Party  h.is  once  afp^,v/d,  and 
n^nds  out  in  Contempt  'till  the  Plaintiff  has  got  to  the  End  of  the  Line,  and  has  run  thro'  all  the  P.-o- 
ccfs  of  the  Couj't  againft  him  •,  yet  formerly  this  Courr  did  n<,t  do  it  even  in  that  Cale  witi-ouc  purting 
the  Plaintiff  to  prove  the  Subllancc  of  his  Bill.  Arg.  Vem.  224.  Hill,  16S5.  in  the  Cilc  of  Jahn- 
fon  V.  Dei'mineere. 

2.  ^wo  Defendants^  the  one  having  aufivcred^  thx  other  re^'."!'cs^  he  iliall 
be  bound  by  the  other's  Anfwer,  if  the  Caule  pals  againlt  them.  Torh. 
74.  cites  7  Jac.  Matthew  v.  Matthew. 

3.  Defendant  being  -dJ'nfcntr  in  the  A'/»^'j  Bemch^  rertis'd  to  ani'.\er. 
The  Bill  can't  be  taken  Pro  Conlelib,  unlels  he  was  .'//  the  Prifon  of  this 
Court ;  whereupon  he  was  removed  by  Habeas  Coipus  into  ihe  F ea^  and 
having  a  Day  given  him  to  anluer,  ana  he  Itill  refuling,  ihe  Bill  wa-t 
taken  Pro  Conielib,  and  he  was  ordered  to  be  kept  dole  Prilbner.  N. 
Ch.  R.  50.   1653.  Thomas  v.  Jones. 

.4.  Where 


Pro  Confeilo.  54-3 

4.  W'bere  the  Defendants  were  not  brought  in  upon  any  Procefj  of 
Conrcmpc,  but  thjy  appeared  to  the  Sabpxna  m  anfvver,  and  cravd  ci 
frirther  Day,  and  had  k,  and  llill  (lond  out  all  Contempts^  and  could  not 
be  taken,  the  Bill  was  taken  Pro  Conielib,  and  a  Decree  upon  in  decreed 
to  be  well  grounded,  and  a  Bill  ot  Rcvjc-ju  ordered  to  be  difuiili'd.  N. 
Ch.  R.  64.   14  Car..  2.  Denny  v.  Filmore. 

5.  In  a  Suit  for  Tithes  the  Defendant  was  in  Cot/tempt  for  not  anfwer- 
ing,  i:nd  was  brought  by  ieveral  Orders  to  the  Bar^  and  being  a  .^mkcr 
reiufed  to  anfwer  on  Oath,  but  prav'd  to  anfwer  without  Oath.  1^'inch 
C.  admonilhed  him  of  the  Peril,  viz..  That  the  Bill  mult  be  taken  for 
true  ciit!rdy  as  'tis  laid^  if  he  anfwer'd  not ;  and  he  fiying  as  before,  the 
Lord  Chancellor  pronounc'd  the  Decree,  tho'  Sir  J.  Churchill,  as  Ami- 
cus Curiae,  faid,  That  this  Caufe  tor  Tithes,  efpecially  iinall  Tithes, 
was  not  proper  ibr  this  Court,  and  had  not  been  ufed  ;  but  decreed  tor 
the  Plaincitt,  and  referr'd  the  Valuation  to  the  Malter,  2  Chan.  Cafes  237. 
Mich.  29  Car.  2.  Anon. 

6.  Defendant  having  appear  d^  and  afterwards  Jlood  in  Contempt  *tUl  Se- 
qtiejiration  was  return'd,  It  was  inJilled,  That  the  Bill  ought  to  be  taken 
ProConteflbi  but  the  Lord  Keeper  fiid.  He  would  conhder  of  it  'till 
the  next  Term.  And  it  being  allefd,  'That  Baron  and  heme  were  Defen- 
dants, and  that  it  was  the  IVife  only  who  had  appeared,  and  that  without 
the  Husband's  Privity,  Lord  Keeper  refer'd  it  to  a  Mailer  to  examine 
the  Faft,  and  faid,  If  it  Ihould  tall  out  to  be  fo,  he  could  not  decree 
?gainit  the  Husband,  bat  they  mult  proceed  and  lay  on  the  Sequeltration 
to  bring  him  in.     Vern.  241,  Trin.  1684.  Gibfon  v.  Scevtngton. 

7.  A  Dctend.mt  refuling  to  anfwer,  and  /hrndmg  out  all  Contempts 'till 
an  Older  was  made  fir  a  Scqiieif  ration ;  it  was  pray'd  by  the  PlaintiiT's 
Counfel,  That  the  Bill  mignt  be  taken  Pro  Contello.  To  which  it  was 
objefted  by  the  Counfel  on  the  other  Side,  That  this  could  not  be  done, 
bccaule  the  Sequeltration  was  neither  under  Seal  nor  executed^  and  alio  be- 
caufe  the  Plaintilf  did  not  produce  tie  Original  itlclt,  but  only  a  Copy  of 
it.  Lord  Chancellor  Parker  held  the  lalt  Objedion  certainly  a  good 
onci  but  as  fur  the  other,  tliere  feenfd  to  him  to  be  no  Realbn  tor  it , 
for  the  Putting  the  Seal  to  the  Sequeltration,  and  actually  Executing  it, 
feems  tol)e  then  only  necellkry  when  the  Plaintiff  is  not  ripe  lor  a  De^ 
cree  upon  his  own  Bill,  but  wants  lome  J3ifco'.ery  fom  the  Defendant's 
Anfwer,  upon  which  the  Decree  may  be  tounded  i  and  theretbre  the 
a£tual  Executing  a  Sequeltration  to  extort  an  Anfwer,  ot' which  the  Pliin- 
titfhas  no  Occation,  leem'd  to  him  very  unnecelfiry.  10  Mod.  431.  Paich. 
5  Geo.  Anon. 

8.  5  Geo.  2.  cap.  25.  S.  i.   Enacts,  That  //  in  any  Suit  in  Equity  any  Dc-  Mr.  Serjeant 
fendant,  againjf  --johcm  Prorefs  fijall  tfjue^  foall  not  caufe  his  Appearance  to  Bamavdulon 
be  enter  d  according  to  the  Rules  of  the  Court,  in  Cafe  fnch  Proccjs  had  been  '"  ''"  ^^" 
ferved,    and  Jfidavit  Jhall  be  huide,  't'^at  fuch  D-^jendant  is  beyond  the  Seas,  i,'"chm^e^* 
tr  that,  upon  Inquiry  at  his  ufual  Place  oj  Abode,  he  could  not  be  found,  fo  as  401 'to  404^ 
to  be  fervd,  and  that  there  is  jufi  Ground  to  believe  that  fiich  Defendant  is  ttHs  us.That 
gone  out  of  the  Realm,  or  abfconds  to  avoid  being  fervd  ,  the  Court  may  make  ^^^  ('pinion 
an  Order,  appointing  fuch  Defendant  to  appear  at  a  Day  therein  to  be  named,  ^.,5  \1,at"i^'is 
and  a  Copy  of  fuch  Order  (bail,  within  iti^Dhys,  be  tnferted  m  the  London  not  I'ufficieat 
Ga'zdte,  and pubiijhe.i  on  fonie  Lord's  Day,  after  Divine  Service,  in  the  Pa-  upon  this 
ri[h  Churvh  where  futh  Dejendant  made  his  ufual  Abode  within  30  Dsiys  next  ^"^^^"^^  '", 
lefore  hisAbfentmg  ,  and  a  Copy  of  fuch  Order  jhall  be  pofted  up,  viz.   ^.^,'V/S.' 
Copy  cf  fuch  Order  made  in  Chancery,  Kxch^'quer,  or  Dutchy-Chambcr,  /hall  pJriy  mnltiKg 
It  pofiid  up  at  the  Roval  Exchange  ;  and  a  Copy  0/  every  f/c!-^  Ordtr  made  in  •'  '^'■•"^  '»- 
any  of  the  Courts  of  f.qtity  of  the  Counties  Palatine,  or  of  the  Great  Sejions  ./"''"''"''  "«'' 
in  Wales,  pall  be  pojlcd  up  in  foms  M.irket-Tfown  within  the  Jurifdi[fion  of  flfj'''^lfl„'l 
the  Court,  neare/l  to  the  Place  where  fuch  Dfendant  made  his  ufual  Abvde,  arts  ii-uL 
fuch  Place  of  Abode  being  alfo  within  the  furifiidion  of  the  Court ;  And  if  d>-e--M  then-- 
the  Defendant  do  not  appear  within  fuch  'Time  as  the  Court  fl: all  appoint,  then,  ''^'_^'c''  'i»to 
on  Proof  made  of  fact  Publication  of  fuch  Order  as  ajorefiid,  the  Cou--t  may  ^.'1.^.'.'"^''' 

crd'.'r  .i\'ird  Niirg 


44- 


Procurations. 


Burton  v 

-Maloon 


ll-rvM  \\itli  cr^er  the  PlaintiU's  Bill  to  be  tcikoi  Pro  Cvnftffo^  and  viake  fiuh  Darce 
ri_c  Proccfs  thereupon  cis  Jkall  le  jiijt ,  and  the  Court  may  order  fit  cb  Phuntilf  to  be  paid 
\\mni'm{\'  ^''^  Demands  otit  oj  the  hjiate  lajtujind  according  to  the  Decree^  fuch  Piaui- 
bTlik'-Tifc  tifj' giving  Security  to  al>ide  fiich  Order  touching  the  Reftitation  of  fitch  E- 
fuoi-n  by  fate^  as  the  Court  pal/ make  upon  the  Defendant's  Jppiarance.  lint  m  cafe 
vvhoni  tlie  jhqIj  Plaintiff  Jball  refiife  to  gii'e  Security,  then  the  Court  pall  Order  the  hj- 
Deponent  re-  .-^^^  fequeftred  to  remain  under  the  Direiiion  of  the  Court  until  the  appear- 
mJt^L,  ^nce  of  the  Defendant  to  defend  fich  Suit. 

I  Dd  cites  '  Provided,  That  this  ^ici  fjall  not  affcB  Perfous  beyond  the  Seas,  mitcfs 
Hill.  1740.    Jfidavit  be  made  of  their  being  in  England  within  2  Jears  bejore  the  bub- 

pcena. 

Nor  extend  to  Courts  having  a  limited  JurifdiBion,  unlefs  Oath  be  made 

of  Perfonal  Refidence  in  fich  'Jurifdiihon  one  rear  before  the  Siibpocra. 

9.  The  Detendant  appeared  and  ftood  out  to  a  bequeltration,  and  af- 
terwardsj  on  getting  'I'lme,  put  in  an  Anfwer,  which  was  reported  in- 
lufficient  in  near  20  Exceptions,  and  was  ferved  with  Subpoena  to  maAc  a 
better  Anfwer.  The  Deienda:,t  put  in  airother  Anfwer  alike  infjfficient. 
It  was  inlilled  for  the  Detendant,  That  the  Pratfice  of  taking  Bills  Pro 
Confeljh  is  not  of  longjlanduig,  the  ancient  Way  being  to  put  the  Flaintitf 
to  rnake  Proot  ot  the  Subilanceof  theBilli  and  that,  in  this  Gde,  taking 
all  the  Bill  Pro  Confelio,  where  Part  had  been  iufficiently  aniWer'd, 
feem'd  very  ftrange.  But  it  was  anfwer'd,  That  an  infuiiicient  Anfwex 
is  as  No  Anfwer,  and  therelbre  the  whole  to  be  taken  Pro  Confelio  i  And 
the  Mailer  of  the  Rolls  decreed  for  the  Plaintiii!  But  Lord  Chanceilor 
King,  on  an  Appeal,  laid,  He  would  conjider  how  Matters  ftood  at  the 
Timeof  fuch  Decree,  and  that  it  wasfufficient  that  there  then  was  an 
Anfwer,  and  which  the  Plaintiff  had  admitted  to  be  lb  by  luing  Procels 
for  a  better;  and  that  to  lay  the  Detendant  conftls'd  the  whole  Bill  true, 
when,  by  the  Malter's  Report,  (which  was  a  Record  of  ihe  fame  Court) 
that  he  had  anfwcred  the  greatell  Part;  and  when  the  Plaintiff  himfelf 
had  taken  the  firlt  Anl'wcr  to  be  an  Anfwer  in  Part  by  ferving  the  De- 
lendant  with  Procefs  to  put  in  a  better,  is  againll  Common  Senfe  ;  and 
revers'd  the Ibrmer  Decree.  2  Williams's  Rep.  556.  Mich.  1729.  Hawkins 
V.  Crook. 

10.  If  a  Defendant  obftinately  inftjls  tipon  his  Demurrer,  and  refufes  to 
anfwer  w/^tre  the  Court  is  oi  Opinion,  That  fufficient  Matter  is  alhg'd 
in  the  Bill  to  oblige  him  to  anlwer,  and  for  the  Court  to  proceed  upon, 
the  Court  will  decree  the  Matter  of  the  Plaintiff's  BiJl  ;  F  or  by  the  De- 
murrer are  confefs'd  all  Matters  of  Fact  that  are  alleg'd.    Curf  Cane.  209 

For  more  of  prO  ConfCflCd  in  General,  See  COIltCinpt,  ©CqUCifmtiCn, 

and  other  Proper  Titles. 


PrcKU  rations. 


1  34  y  25  //.  T?  ^^  ACTS,  That  Pcnfious,  Portions,  Ci^rodies,  Indcm- 
8  i''9  Hj  -'iities,  Synodies,  Proxies,  and  all  other  Pro/its  due  oat 
of  Religious  Lands  difjohed,  jhall  be  paid  to  Bijbcfs  ^c.  by  the  Occupiers  or 
the  fame  Lands,  if  fuch  Pxckftadical  Perfons-xere  fifed  thereof -xtthin  10 
Tears  before  their  DijjolutioH.  AnA  if  upon  Suits  in  the  P.cc lejta It ical  Court 
for  the  fame,  where  'the  Payment  thereof  is  zvilfilly  denyd,  the  Dejendant  be 
■'  ■'       '  convitfed, 


Procuration. 


54-5 


convitlcd^  the  Plarntiff  pal!  recover  the  Value  thereof  in  DamagcSy  together 
with  his  Co/Is  of  Suit.  T'he  like  he  pall  recover  at  the  Common  LaWy  whefi 
the  fame  is  thereby  deteriiiifiable. 

Provided,  If  the  King  hath  demifed  any  of  the  faid  Lands  -with  a  Cove-  In  a  Pnhihi- 
naut  to  difcharge  the  tenant  of  fiicb  Charge,  that  then  the  Party  claiming  ';"«  to  rt:'y  an 
the  fame  jhall  fiie  for  them  in  the  Court  of  Aii".  mentations,  and  not  dfeishere.    •^^■■^"^'""'"ni- 

■'  -^  JO  J  ;  canon  for 

.  "ot  P'lyinj 

Procurations  and  Proxies ;  x\\zSu^vepkn  \i-i.%.  That  by  the  Statute  all  Tuch  Archbifliops  &c.  as  have  a 
Right  to  any  Proxies  &c.  againil  thole  to  uhom  the  King  fliould  grant  any  Lands  charged  therewith, 
witli  a  Claule  in  the  Grant,  That  the  (aid  Lands  fhould  be  dilcharged,  fhould  Ibe  for  the  fame  in  the' 
Court  of  Augmentations,  now  annex'd  to  the  Exchequer,  and  not  cKewhere  ;  that  in  the  prefent  Calc 
the  Lands  were  granttA  by  Patent  difcharg'd of  Proxies  &cc.  Sed  non  Allocatur,  becaufe  this  Statute  extends 
only  luhere  parthiilarEfiates  are  granted  over,  as  appears  by  the  Words,  Any  Sale  &c.  for  Life,  Lives  or 
Years,  and  not  where  the  Fee  is  granted,  as  it  was  in  this  Cafe.  Hard.  3SS.  Jilich.  16  Car.  2'.  in  6eacc. 
the  King  v.  Lake. 

2.  An  Archdeacon  brought  his  .5/// /V/  the  Exchequer  againU  the  De- 
iendants,  being  Parfons  and  Vicars  in  London,  for  certain  Sums  of  Mo- 
iiey  dill  tor  their  Proxies  by  Prefcription.  The  Detendants  demurr'd,  tor 
that  the  Thing  in  demand  was  merely  of  Eccleliaitical  Cognizance  ;  and 
if  the  Title  by  Prefcription  alter'd  the  Caie,  then  the  Plaintiff  ought  to 
have  his  Remedy  at  Law,  and  not  in  Equity.  But  of  this  the  Court 
doubted,  Et  Adjornatur.  The  Chief  Baron  cited  Lindw.  That  there 
are  3  Sorts  ot  Proxies,  Ratione  Vtfuatioms,  ConfiKtiidiHis,  and  Pacti  ; 
that  the  2  laft  were  recoverable  at  Law,  but  becaufe  in  this  prefent  Cale 
the  Matter  was  doubtful,  the  Defendants  were  ordered  to  anfvver,  and 
this.  Matter  Ihould  be  fa\ed  to  them  at  the  Hearing.  Hard.  180.  Patch. 
13  Car.  2.  in  the  Exchequer.  Dr.  Parker  v.  Seabrook  &  al. 

3.  Libel  againll  K,  tor  Procurations  due   to  him  as  Archdeacon  of- Show.  9-. 
York  fet  forth^  fhat  for  10,  20  ijlc.  2' ears  there  hath  been  due  and  paid^  '-'■  W^'^s 
6  s.  yearly  by  the  laid  X.  and  his  Predeceifors,  Paribns  of  D.  But  K.  lug-  ch'^o^n  v 
gelled  for  a  Prohibition,  That  the  laid  Duty  hath  not  been  payable,  and  Gilder,  but 
denied  the  Prefcription^  and  that  the  Eccleliaitical  Court  cannot  try  Pre- Adjornatur. 
fcriptions.     Per  Curiam,  A  Confultarion  is  granted  Quoad  Procurations  ^ff^  '^'i^^vs.^ 
demanded  generally  ^  But  if  the  Plaintilf  denied  the  Quantum,  then  a  'r''(-°[''PT)v , 
Prohibition.     Raym.  360.  Pafch.  32  Car.  2.  B.R.  Kirton  v.  Guilder.      \i' the  Diffe- 

rence  be  alcnt 
tf.-e  ^lavtiim,  then  they  ought  to  have  Hiid  in  the  Suggpftion,  That  fo  much  is  due,  and  no  more  ;  But 
here  the  whole  is  denied.  fJut  the  whole  Court  agreed,  Tli.it  a  Su!;^eftijn  cannot  be  amended  after  a 
Prohibition  is  gone,  nor  in  tliis  Prohibition. 

4.  Adjudg'djThat*  Procurations  are  an  Tx  clefs  aft  ical  Duty,  and  there-  *  Procura- 
fbre  properly  iuable  for  in  the  Spiritual  Court.     2dly,  Where  ic  was  "°?'^'  ^y~ 
cldmcd  by  and  from  an  Eccle/iaflical  Perfun,  it  is  lb  much  the  tlronger.  p",.,^,^^^',^'^,^ 
3dly,  Tho'  there  was  an  Impropriation  in  the  Cale,  llill  there  mult  be  a  beino- denied 
Curate  to  take  Care  of  the  Souls  of  the  Parilh  ;    and  Curates  as  well  as  when  due, 
other  Perfons  mulf  Itand  in  need  of  Bilhops  or  Archdeacons  InJlruftions  =>''«  ww- 
and  Vilitations.     Confequently,  4thly,  That  the  f  Ordinary  or  Arch- j.^^^'^'/* 
deacon  ought  to  be  alloisocd  for  his  Procuration  ivhat  had  been  iifaally  paid  Ccurt,  b^ing 
for  It,  which  in  the  Principal  Cale  appeared  to  be  6  s.   8  d.     5thly,  That  Profits  of  a 
where  a  Thing  is  chinned  by  Ciijhm  in  the  Spiritual  Court,  it  muic  be  /;;-  mere  Spiri- 
tended  according  to  their  Conflrutiion  of  a  Cultom,  and  by  their  Law  40  .^^Gibf  ^Coj 
Years  make  a  Cullom  or  Preicription.     6thly,  That  the  Payment  of  6s.  Toi-. 

8  d.  for  70  or  80  Tears  is  an  Evidence  of  an  Immemorial  Payment.     But  iff  Procurati- 
it  could  not  be  ftriflly  Iinmcmorial,  as  taking  the  Archdeaconry  to  have  "" 'V^']''''^ 
been  founded  in  E.  tth's  'Time,  yet  lince  that  Period  it  might  become  due  vifuina  'dc 
by  Endow  ment,  which  might  in  this  Diltance  of  Time  have  been  lolt.  jure  Com- 
VVilliams's  Rep.  657,  663.  Mich.  1720.  B.  R.  Saunderlbn  v.  Claggct.       ""mi.    The 

"  Term  is 

thus  expl.iin'd  by  the  Canonids.     Hoc  Miiniis  idea  Proiurat'to  Vtcatw  (jt.ia  EcdefiK  Kfifufump-utirait',  i.  e. 

Curant,  alunr,  ac  tr.entur-     zGibf.CJod  ioi<)  Donatives  &  Free  (Tiapeis  pay  no  Procurations 

to  any  Eaclefijftical  Ordinary,  becaufe  they  arc  not  vihtublc  by  any.     Ibid. 

6  Y  s-  Churches 


545  Frofefllon. 


5.  Churches  newly  ereEied  lliall  be  rated  to  Procurations  according  to 
the  Proportion  paid  by  the  neigbouring  Churches.     2  Gibf.  Cod.  10 16. 

For  more  of  PcOCUratiOltS  in  General,  See  Dav.  Rep.   The  Cafe  of 
Proxies. — Godolph.  Rep.  cap.  9. Gibf,  Cod.  &c. 


Profeflion, 


(A.)     Profeflion.    Deretgnme?2t. 
"^T'ht    ^*  A  ^^°"^  unner  ©bctJicncc  limp  be  tiifcfjtirgcti  of  tlje  ©Detii'ence 

char  M  of'        -tx  by  the  Archbilhop,  with  Licence  of  his  Sovereign.    3  Ip»  6.  24, 
his  Profeflion  by  any  but  rlie  Pope.    Br.  Nonability,  pL  2.  cites  S.  C. 

2*  a  99an  profef^'t  cannot  be  matic  able  for  Things  Temporal,  ass 
to  purcljafc  laiiD^,  or  to  Ija^e  ^irmantaryc  of  an  ©bliption,  by  any 

except  the  Head  ot  the  Church,  not  by  the  Archbilhop.     3  i'l).  6.  24. 

BrNonabi-      3-  But  tljs  flDrnman)  iiiap  iiiafec  Ijlm  able  to  taUc  alitjantaiTC  of 

lity,  pi  2.      Things  Spiritual  UlltljOUt  tt)e  J^eall  Of  tfjC  CijUrCl),  m  to  be  Vicar  or 

cites  sc.     Parfon ;  fflc  tljig  (0  ttot  conttarp  to  tljc  jarofeOiou,  luljicij  \^  €>pin^ 
tual.    3  ix  6, 24.  b* 

4.  Mortdaricejlor  ;  becaufe  his  Another  had  taken  upon  her  the  Habit  of 
Rclig'wn.  The  Tenant  faid  that  beiorc  the  E/Jtry  into  Religion,  the  Mo- 
ther efpo(is''d  IV.  N.  who  is_jf/- in  full  Life;  for  ifhebcis/Mv,  Ihe  may  be 
Deraign'd.    Contra  if  he  died  after.     Er    Deraignment,   pi.  9.  cites 

5  E-  4-  3. 


(B. )    irkit  will  hQgood  Canfe  of  Derelgnment. 

i.TJT  a  S^an  marries  a  wife,  anb  flic  before  Camal  Conufmce  enters 

-»-  into  Religion,  pct  tfic  damage  isi  not  soon  Caufe  of  2:)e= 
reiffnmentv    i8}i)»6. 83* 

2.  ©tljeciBifC  It  10  if  flje  enters  into  KCligiOn  after  Camal  Conufancej 

for  tijen  b}>  tljijs tijc  sa^arriage  10  coniplcat*   1 8  d*  6»  3 3* 


(C.)   Profeflion.  At  ijohat  Time  a  Man /hall  be  fat  d  a  Dead 
Feribn,   and  Profefs^d. 

I*  TJF  tbe  Freres  put  my  Son,  being  an  Infmt,  into  the  Habit  without 

X  my  AiTent  before  W  fnU  iSw,  |)c  iiiap  come  back  to  me  toitlj 
tup  Client,  or  31  map  tetafee  Ijim  from  tljeiii  -,  for  ije  is  not  profcf^'O 
bp tljc ipnbit*    III). 4.31. b. 

4.  So 


Profit  Apprender.  5^1.7 


2.  So  3!  maj>  retake  him  alter  his  full  Age.     ii  IX  4»  3i»  t).  llCfOrC 

ije  isJ  profcfg'rr. 

3»  jf  il  Man  ente.rs  into  Religion,  and  is  under  Obedience,  JJft  fjC  IjS 

not  a  DEan  l^erfou  before  profeflioii.    3  i]x  6. 24, 

4.  Jfor  Land  may  defcend  tO  il  Sl9cllt  after  Entry  UltO  RCligiOU  before  Bi-.  Konabi- 

Profeifion,  aitO  uia^  \)d))z  ^(tiow  for  it  nis  lotix.    3 15>  6.  24,  'ity.  pi  •  2- 

S.  C  — See 

SirLainence 

For  more  of  Profeffion  in  General  See  jfattjS,  (C)  «Srant0,  (C)  pi.  i.  Anderton"s 
'2Crial,  (A)  pi.  3.  (O)  pi.  12.  13.  14.  and  other  proper  Titks.  C^'"^- 


Profit  Apprender. 


I.  T)Rofits  apprender  axefaved  hytheThirdi  Saving  of  the  Statrtte  of  Ufes. 
2^  z  And.  26.  pi.  52.  in  the  Cafe  of  Lord  Cromwel  v.  Andrews. 

2.  If  I  grant  lo  Load  of  EJhvcrs  and  Hay,  or  fuch  like,  to  httaken  an- 
nually^ or  Common  for  lo  Be'ajh  annually^  to  be  taken  in  iuch  a  Place  ibr 
Term  of  Life  or  Years,  or  otherwife,  and  he  does  not  take  any  Thing 
of  it  for  3  or  4  Years  there,  in  the  5th  Year  hejhall  not  take  a^o  Load^  nor 
can  he  put  40  Bealts  in  hit  he  $th7''ear  ■■,  for  then  peradventure  the  Grantor 
cannot  take  any  Thing  himlelf  this  Year  ;  lor  it  is  not  like  to  a  Rent- 
charge.  By  the  Opinion  of  the  Court.  Br.  Parnor  de  Profits  &c.  pi. 
2.  cites  27  H.  6.  10. 

3.  Praecipe  quod  reddat  does  not  Y\t  of  Common ^  but  Quod  permittar 
and  th^Vi^toi  other  Profits  apprender,  which  lie  in  Prender  and  not  in 
Render  ;  ibr  at  theCommon  Laiv  no  Attion  layoi  Profit  Apprender,  but  the 
^uod  per  mitt  at.     Br.  Precipe,  pi.  13.  cites  4  E.  4.  i. 

4.  A.  as  Tenant  of  a  Manor  has  Riglit  by  Prefcription  to  take  Clay  ^c.  yen 
he  can't  take  that  which  another  has  dug.  The  fame  ol'  EJlovers.  Mo. 
411.  pi.  561.  Trin.  37  Eliz.  Stile  v.  Butts. 

5.  If  the  Lord  had  referv'd  Decimam  partem  of  the  Corn  &c.  he  ftall  Cro  E.  599. 
have  Affile  of  it,  as  of  Profit  apprender.  Mo.  531.  pi.  699.  cites  44E.  35.  P'- 1,  i^'l'', 

That  \vi  may  lia\'c  Decimam  Garh.xm,  but  not  Decimam  Cnlitnim. 

6.  Such  Manner  of  Profits  (though  they  are  Appendant  to  a  Frank- And  if  af- 
tenement)  cannot  he  divided  ;  For  il  fuch  Heritage  defccnds  to  Parceners,  "J^"^''  ^"  j^- 
one  alone  fhall  have  the  intire  Profits,  and  the  other  Parcener  lliall  have  (^^  J^j.^,!, 

an  Allowance  i  alfo  Feme  Ihall  have  for  her  Dowcr  but  an  Allowance,  jointly;  As  if 

Finch.  36.  b.  the  Grant 

be  to  rf/iT 
7urf  to  wo.h  JUcm  &c.  the  Affignces  muft  work  together,  witlithe  flimc  Stock  and  Workmen  belonging 
to  both.  Godb.  iS.  pi.  24.  Palch.  25  Elii.  C.  B.  the  Lord  Alountjoy's  Cafe. 

7.  Libertas  Falcandi  is  zViof[th^T^x&r\d(tv^  but  a  Man  is  not  thereby 
Tenant  or  Occupier,  nor  can  prefcribe  to  bedifcliargcd  of  Tithes  as  fuch. 
2  Bulf  249.  Suckerman  &  Coates  v.  Warner. 

8.  Licence  to  take  a  Profit  in  Alieno  folo,  need  not  be  by  Decd^  ■where  Snt  Profits 
it  is  only  Unica  Vice.,  there  palling  noEllate  in  it.  Vent.  2j.  Pafch  21  Car.  ^"  ^^v^'^"^^'' 
2  B.  R.  Rumley  v.  Ravvfon.  and^whidf"* 

are  not  of 
NecefTity,  will  not  pafs  without  a  Deed.  Cro.  J  190.  pi.  i;  Mich.  5  Jac.  B.  R.  Bcwdlty  v.  Broo.'c. 

For  more  of  Profit  Apprender  in  General,   fee  COUiHlOJl,    and 

other  proper  Titles. 

Prohi- 


H8 


Prohibition. 


♦Prohibition 
i£'iies  out  of 
the  Chan- 
cery, B.  R. 
or  C.  B. 
into  the  Spi- 
ritual Court, 


*  Prohibition. 


^^^I'^'^l'^'  (A)     The  jdntiquHy  of  Prohibitions; 

ChiviilryScc. 

io  forbid  a       i^   3  e«  I*  Eot,    A    l?i*oI)ibit(oit  totid  grantctJ,  anti  after  att 

t"pn!J^Un  a  ClnUfatUm ,  S@  lo.  f\  Atcuchment  againll  the  Bilhop^  auO  tlje  ©f- 

cLfo,  that  fictal  fot  ijoinutg  piea  aftec  tlje  pcoljibition. 

he!c7ipj  to  the 

Ccmwon  Law  Courts,  or  that  belongs  not  to  their  JurifdiHion,  though  the  Courts  at  Law  cm  ffhe  r.o  Remedy., 
or  it  may  forbid  a  Judge  of  any  Temporal  Court,  to  proceed  in  a  Caufe  depending  before  him,  upon 
Su"-gclHon  that  tlie  Cognizance  of  the  Caufe  docsnot  belong  to  hnn.  Wood's  Inll.  570. 

The  King's  Courts  that  may  award  Prohibitions,  being  informed  by  PlaintitVor  Defendant,  or  by  any 
Stranfcr,  thatany  Court  Temporal  or  Ecclefiaftica),  do  hold  Plea,  where  they  have  no  Jurifdiftion, 
nay  lawfully  prohibit  that  Court,  as  ivell  ajter  "Judgment,  and  Execution  as  before,  and  if  the  Judge  of 
the  inferior  Court,  or  the  Party,  proceeds  notwltliltandlng  a  Prohibition,  an  Attachment  may  be  had  a- 
rainll  them,  oi- an  Action  of  the  C.jfe  li-iH  lie  agamft  them;  But  upon  a  Prohibition  in  the  Spiritual 
Court,  the  Party  may  appear  and  take  a  Declaration  upon  the  Suggellion,  and  go  to  Trial ;  And  if  there- 
upon it  be  found  againft  the  Plantitf  in  the  Prohibition,  a  Writ  of  Confultation  will  be  awarded  with 
Cofts.  Wood's  Inlt.  5-0. 

It  is  in  the  Difcretion  of  a  Court  to  deny  a  Prohibition,  when  it  appears  to  them,  that  the  Surmife  is 

not  true.  Per  Hobart  Ch.  J.  Hob,  6;.  pi.  71.  in  the  Cafe  of  Afton  Parifh  v,  Ca'.lle-Birmidge  Chapel. 

But  all  the  judges  agreed,  That  the  granting  Prohibitions  is  not  a  Diicrctionary  Aft  of  the  Court;  but 
are  fff.iK//r/)/e £■;«:. !/e)-//oy«//<i^,  and  denied  Lord  Hobart 's  Opinion,  and  ij'd.    That  Roll  Ch.   J.  had 

frequently  done  fo  before.  Raym.  ;,  4  Hill.  1 2  Car.  2.  B.  R.  in  the  Cafe  of  Woodward  v.  Bonithan ■ 

S.  P.  that  thev  are  giantable  Ex  Debito  Juftiti^,  and  are  not  Honorary,  and  in  the  Difcretion  of   the 

Tuftices.    Per  tot.  Cur.  Sid.  65.  pi.  5S.  Mich.  13  Car.  2.  B.  R.  in  Serjeant  Morton's  Cafe. Raym.  92. 

in  the  Cafe  of  Ford  V.  Weldon.  Hill.  15  &  16  Car.  2.  B.  R  Hide  Ch.  J.  affirmed  that  a  Prohibition  is 
Ex  Gratia,  and  not  Ex  Debito  JulHtix,  but  Keyling  6c  Twilden  J.  pofitivcly  denied  it. 


(B)  Of  njohat  Thmgs  or  AcHo?2s,  Siudjor  'what  ^johat  Caufes 
it  lies  [ojvhere]  the  Judges^  [before  whom  the  Caufe  is 
brought]  have  jiot  any  JurijdiBion. 


r 


'  jf  t!)C   CoUeaor  of  the  Pope  ill  Cnglantl  holds  Plea  in  CniTlaiHl 
ot  Spiritual  Matters,  a  PrOljibttiOU  IlC0;  JFOr  IjC  IjaSUOt  lutir^ 

titftion  Ijcre  to  Do  it,  for  tlji.ss  Ijclonos  to  tljc  €)piritual  Iiiuijc^  of  tOe 
mmg  in  englano.  3  ^»  4- 

See  (J.  a)  2.  Jf  tljCtCbC  one  intire  Contraa  above  40  s.  atlH  a  ^ail   fues  for  it 

pl.  I.  S^C.—  jn  a  Court  Baron,  Severing  itinto  divers fmallSunis  under  40s.  JT  J3r0l)i' 

?A?infhc'^'^"  bitton  fljall  be  granten  bccaufc  tljijs  is  none  to  be  Defraiio  tlje  Court 

l^ew  Notes   Of  tljC  iainff*  19*  l>»  6.  54* 

there  (a) 

cites  S.  C. If  a  Man  otues  unto  another  Man  ^  Marks,  and  ht  fues  fewal  Plaints  for  the  fame  in  the 

County- Court,  or  in  any  other  Court,  againft  the  Debtor,  he  fhall  have  a  Prohibition  thereof,  and  re- 
hearfe  the  Matter,  -and  that  he  would  defraud  the  King's  Court  of  its  Jurifdiction,  and  alfo  the  Party  of 
his  Anl'wer  &c.  commanding  them  that  they  do  not  proceed  &c.  and  that  he  cominand  the  Party  to  fue 
at  the  Common  Law  in  the  King's  Court  ;  And  if  they  will  not  furceafe,  he  fhall  iiave  an  Alias  and 
Pluries,  and  Attachment  upon  the  fame  &c  F.  N.  B.  46.  (A) — So  if  the  Executor  fueth  in  the  County, 
or  in  a  Court- Baron  for  a  Debt  of  5  Marks,  by  divers  Plaints,  v/hereas  the  Debt  \s  ufon  a  Ccmtr.-icf,  cr 
upon  an  Obligation,  now  the  Defendant  may  fhew  the  fame,  and  plead  unto  the  Juriliiiition  of  the  Court, 
or  he  may  have  a  Writ  of  Prohibition  directed  unto  them,  that  thev  do  furceafe  &c.  and  if  he  ha've 
'Judement  in  any  of  the  Plaints  fucd/or  Parcel  of  the  Debt,  yet  in  the  Prohibition,  he  may  prohibit  him  in 
the  Plaints,  which  are  depending^,  and  that  Execution  of  'Judgment  ceafe  for  the  Refidue.  F.  N.  B.  46.  (A) 
If  there  be /ft'fr^z/Gwtrrtffi  between  A.  &  B  at  feveral  'fimes,  for  fizeral  Sums,  each  Sum  under  40  s. 
and  thev  do  all  amount  to  a  Sum  fi<ffcier:t  to  entitle  the  fuperior  Cciirt,  tlie}  ihall  be  there  put  in  Suit,  and 

not 


Prohibition.  54.9 


not  in  aC'ourt  which  is  not  of  Record  ;  And  lb   it  was  refolved  in   the  Cafe  of  the  ^ilbOV  (L  OUrt,  ailO 
^'faUllDforDf,    24  Car.  2.  Vein.  65.  jil.  I.  Pafch    Z2  Car.  2  in  B,  R.  Anon. 

In  a  Prohibition  to  the  Court  of  the  Honour  of  Eye  theCafe  was,  one  rwJ/rwi'^/prf  v.ith  another  /or  Hiv/s 
P.jneli  of  Malt,  the  Mor.cy  to  be  paid  for  each  Parcel  bemg  under  40  s.  and  he  levied  divers  Plaints 
thereupon  in  tiic  (aid  ('ourt  ;  Wherefore  the  Court  here  granted  a  Prohibition  ;  iJecaulf,  though  there 
be  (everal  Contracts,  yet  for  as  much  as  the  Plaintiff  mi^ht  haie  joined  them  all  in  one  Action,  he  oui^lic 
to  have  fb  done,  and  fued  here,  and  not  put  the  Defendant  to  an  unneccffu-v  Vexation,  any  niore  than 
he  cantplit  an  intire  Debt  into  divers,  togive  the  inferior  Court  Juriidiitioii  in  Fraudem  Legis.  Vent. 
75  Pafch.  22  Car.  2.  B.  R.  Girling  v.  Alders. 

3.  If  one  fues  another  in  the. V/)/V/?//ij/Cb//r?/cr  a  Chat  tie  or  Debt  ^    the 
Defendant  fliall  have  a  Prohibition.  F.N.B.  40(H) 

4.  Ifonefuesycr  Trcfpafs  in  the  Spiritual  Corirt,  Prohibition  lies  for  the  S.  P.  F.N.B. 
King  or  the  Party  unto  the  Judge  or  the  Party,  or  both.  F.  N.  B.40  (M)  p  ^^)j~T' 

Pafs  /':  &Jrmis  fued  in  the  CountyCoHrt  &c.  the  Defendant  may  fue  a  Prohibition  to  the  Sheriff  or  Plain- 
tiff, F.N.B. 47.  (A) 

5.  If  Bailiffs,  Mayors^  or  others,  who  claim  Jurifdiftion  to  arre/l  a 
Man  iipofia  Plaint  before  them,  or  to  attach  his  Goods  &c.  do  arreji  one 
for  T'rej'pafs  or  Contraif^  who  was  mt  -within  their  Jarifdiffion,  the  Party 
arretted  &c.  lliall  have  a  Prohibition  directed  unto  them  &c.   F.  N.  B. 

6.  It  a  Man  fue  another  in  the  County  Court  for  Debts  or  Chatties  "ivhich  ^°  '^  '^''*  a 
doamonntto  the  Sum  of  40  1.  then  the  Party  Uiall  have  a  Prohibition   a-  f!,^t",(!'^„„^,^ 
gainft  him  who  is  Sheritf,  that  he  ihall  not  hold  Plea  thereof,   and  that  ty  Court* a'^" 
he  tell  the  Party  that  he  fue  in  the  Common  Pleas.  F.  N.  B.  46.  (A)  I'f'nt  cfCo- 

"uevatit  or 
'frefpafs  unto  his  Damage  0/40  /  or  more,  the  Party  fhall  hive  a  Prohibition  for  to  furcea.'e,  and  there- 
uponan  Alias,  Plurics,  and  Attachment  &c.   F.  N.  B,  46  (A) 

7.  If  a  Man  fue  in  the  County  a  Plaint  of  20  /.  and  hath  Judgment  to  re-  So  after 
cover  in  that  Court,  yet  the  Defendant  may  iuea  Prohibition,   command-  .l^^gmenr 
ing  the  Sheriff  and  the  Suitors  7iot  to  execute  the  Judgment,    although  he  Kx'ecution 
has  before  admitted  the  Jurifdi^Uon.  F.  N.  B.  46.  (A)  awarded  in 

the  County, 
or  in  other  Court- Baron,  which  hath  not  Power  to  hold  Plea  of  Debt  of  the  Sum  of  40  s  &c.  or  of 
Damagesin  TrefpaCs  amounting  to  fuch  Sum,  or  more,  the  Party  ])cfendant  fhall  have  a  VS'rit  of  Pro- 
hibition unto  the  Biilifts,  or  the  Under  Sheriff  or  Officer  of  the  Court,  that  thev  make  not  Execution  ; 
and  if  they  have  diftraincd  the  Party  to  make  Satisfaction,  that  then  they  releafe  the  Diflrejs,  and  that 
they  revoke  what  they  have  done  therein.  F.  N.  B.  46  (A) 

8.  If  one  Man  fueth  another  in  a  Court-Baron,  or  other  Court,  which 
is  not  a  Court  of  Record,  tor  Charters  concerning  Inheritance  or  freehold ^ 
he  ihall  have  a  Prohibition,  F.  N.B.  47.  (B) 

9.  A  Prohibition  was  moved  for  to  the  County  Court   to  ftay  a^  Suits.  C.  2  Keb, 
there  in  Debt  for  'Tithes  on  a  Jujiicies  j  For  that  it  is  not  Dcbitum  ex   Co?i-  416  420. 
traBu^  hnt  Ex  dclitlo,  founded  on  a  Statute,  of  which  the  Sherilf  cannot  ^="^  ^'■'^^  f^^ 
hold  Plea,  and  ^/jf  J////C/V.?  doth   not  enlarge  his  J urifliction  to   other  ^"j||"^™" 
Aftions,  but  only  enables  him  to  hold  Plea  of  greater  Sums  than  by  his  or-  inclined 
dinary  Jurifdiction  he  could;  The  Court  held  it  to  be  a  very  conlider-  rtrongly  that 
able  Cafe,  and  dire£led  a  Suggeltion  and  a  Declaration  thereupon,    that  '^^  '^''^  "°^  '^^• 
the  Defendant  might  plead  or  demur,  and  fo  the  Matter  might  come  ju- 
dicially before  the  Court,   i  Lev.  253.  Mich.  20  Car.  2.  B.  R..  Biihop 

V.  Corbett. 

ID.  An  A5tion  oiDebt  on  a  Judgment  in  B.  R.  was  brought  in  the  Mar- 
Jhalfea^  and  theretbre  a  Prohibition  was  granted.  2  Salk.  439.  in  pi.  2.  an 
Anonymous  Cafe,  cites  it  asTrin.  11.  VV,  3.  B.  R. 


6Z  (C) 


c,c^o  Prohibition. 


(C)   Jur'ifdictlon  Spiritual. 


Scire  f.icias    i^   "^  jf  tl)C  FiirmcT  of  the  Kin^  fues  in  the  Exchequer  flUrifllR   fl  lli5iir= 

ugainrtLvb-      I  foniiiriictammsofCptijcspavccloftijc  poffemous  IcaieD  to 

Ki*K'intl>c  IjliU  in  Jf arm  bl)  tljCUlUO;,  tijOmjD  the  Right  of  I'lthes  comes   in  De- 

£>.chc.:uc. ,  bate  bf tiyfCH  x\]t\\\  tijcrc,  pet  tlje  Court  PoaU  not  be  oitftcD  of  JuriP 

who  came     yiftton.  3 8»  M-  20.  30)110^^0  i   Xllt  tlJC  EcpOtt  fap0,  Quod  mirum. 

and  prayed 

Pi-occis  a^ainfl:  A.  Parfon  of  O.  who  had  Part  of  his  Goods,  by  u  Inch  lie  could  not  pay,  and  he  came 
and  claiiiied  them  as  his  Tithes,  and  the  other  claimed  them  as  hi<  Tithes,  as  Parfon  ofS.  and  the  other 
therenpou  pleaded  :o  the  lurirdittion,  Etnon  Allocatur  ;  But  the  Exchequer  held  Plea,  bccaufe  it  was 
the  Suit  ot'the  Kinj;,  a'ld  i;i  his  Kelulf;  But  it  is  laid  there,  Qijod  mirum  ell!  and  that  B.  R  nor  C  B. 
will  not  hold  Plea  ot  Tithes  as  here.    Br.  Jurifdittion,  pi.  90.  cites  S.  C. Br.  Prerogative,   pi.   74. 

cites  S.  (- 

The  Khi"  luTS'-Ttti cs  in  the  Forefl  oflnglewood  &c.  ivhkh  are  riot  :n  any  Parijh,  ■dndffi-ants  them  to  a- 
ncll-cr    ivlo  lit'ni^i  ^are  FacLis  asiihifl  thofe  who  rcce'rued  them  bejore  ;  In  this  Cale  the  Temporal    Court 

fhall  have  lurii'diction.  Br.  Prohibition,  pi.  23.  cites  2.2  All   •^. B«/if  they  be  in  Variance  <u;ho 

c nff lit  lo  tav  the  'Tithes  and  '■j.-ho  ought  to  have  them,  the  Spiritual  Court  fliall  have  thereof  Jurifdiction. 
Br.Prjlii'jltion,  pi.  23.  cites  22  Aff  -5. 

2.  A  Libel  was  againft  H.  qucftioning  fome  Matters  as  to  the  Validity 
of  his  Indi'.[fion  to  the  Church  ofS.  but  a  Prohibition  was  granted, 
becaufe  the  very  I'ltle  of  the  Patronage  in  this  Cafe  came  in  ^ite/hon^  \v-hich 
they  ought  not  to  meddle  with;  Eelides,  the  Validity  of  induftion  is 
triable  at  Common  Law,  and  not  in  the  Spiritual  Court,  i  Eulft.  179. 
Trin.  9.  J  ac.  Holt's  Cafe. 

3.  Suits  lor  Adultery^  unlefs  exorbitant  and  mtorioiis^  ouglit  to  be  brought 
beiore  the  proper  Ordinary.  Per  Hutton  J.  liiid  to  have  been  fo  rui'd. 
Cro.  C.  1 14.  Trin.  4  Car.  Ifabel  Peel's  Caie. 

4  L,  C.  was  exconnntinicated  upon  a  Libtl  againlt  him,  founded  upon  a 
Prefentment  by  the  Churchwardens  jor  not  receiving  the  Sacrament  in  his 
oivn  Piirijb  Church,  and.  ftigge fled  for  a  Prohibition  ;  that  he  had  alledged 
and  jhe-joed  to  the  Official  a  Certificate  that  he  had  taken  it  elfeivhere.  The 
Court  held  that  the  Ecclefialtical  Court  had  Conulance  of  the  Caufe,  and 
hadgood  Caufe  to  proceed  upon  the  Prefentment  Prima  Facie  ;  and  that  it 
lies^on  his  Part  to  prove  that  he  received  it  ellewhere,  and  upon  fuch 
Plea  a  Prohibition  lies,  but  not  elfe.  And  becaufe  it  did  net  appear  to 
the  Court  that  this  was  pleaded  in  the  Spiritual  Court y  nor  was  there  any 
yijjida^'it  made  of  it,  the  Court  denied  to  grant  a  Prohibition,  and  being 
moved  twice  afterwards  the  Court  denied  to  grant  a  Prohibition,  becaufe 
the  Caufe  ivas  purefySpiritual,  and  they  properj  udges  of  the  Certificate;  and 
that  if  they  refule  the  Plea,  an  Appeal  will  lie,  but  no  Prohibition  ;  be- 
iides  the  Allegation  in  the  Certificate,  (viz.)  that  he  hath  received  the 
Sacrament  eliewhere,  is  not  fufficient ;  becaufe,  by  the  Rubrick,  he  is 
to  receive  it  three  Times  a  Year,  and  fo  the  Eiieft  of  the  Libel  not  an- 
fwered.  Hard.  406.  Pafch.  17.  Car.  2.  in  the  Exchequer.  Copley's  Cafe. 

5.  A  Libel  was  againlt  the  Plaintiff /yr  keeping  Conventicles'  &ic.  and 
this  was  fx  Promotione  A.  B.  Publick  Notary  ;  neither  the  Libel  or  Ar- 
ticles alleg'd  any  Prefentment  of  this  Matter,  but  the  Regijler  Jicore  that 
ct  Prefentment  mas  made  by  the  Curate  ot  the  Pariih  where  &c.  and  that  a 
Copy  by  hiui  delivered  into  Court  zcas  a  true  Copy  thereof  It  was  infilled 
for  the  Plaintiff  in  the  Prohibition,  that  no  Man  ought  to  be  profecuted 
in  the  Spiritual  Court  to  anfwer  Articles  ex  Mero  Otlicio  as  here  he  was, 
without  a  due  Prefentment.  And  io  is  the  Statute  25  H.  8.  cap.  14. 
as  to  the  Profecution  for  Herely,  but  the  Reafon  thereof  extends  to 
other  things  as  well  as  to  Herefy  :  Indeed  that  Statute  is  repealed,  but 
my  Lord  Coke,  in  12  Rep.  26.  obfcrves,  that  it  was  herein  declaratory 
of  the  Common  Law,  and  that  tis  very  rcafonable  that  there  pould  be 
a  Prefentment  and  Accufation  by  fome  proper  Perfon ;  For  othcrwife  an  inno- 
cent 


Prohibition. 


55' 


cent  Perlbn,  in  Cafe  ot  falfe  Accuflition,  would  not  know  where  to  have 
Remedy.  A  Prohibition  was  denied  i  And  it  was  fiiid  by  W'ylde  J. 
that  they  mull  judge  upon  the  Suggellion  only,  and  the  fuggelting  the 
Proceedings  to  he  >';x  Oficioy  may  be //Wfj/to/ either  of  a  proceeding 
Ojic/o/'e  oi  his  own  Head  i  or,  that  it  was  acuord'tiig  to  hts  Duty  ■■>  and 
here  nothing  appears  but  he  did  ib.  But  if  the  Plaintiff  hc.d  fuggejied 
that  the  Law  required  a  Prefentment  by  fiich  Perfons  and  in  fiich  a  Alanncr 
&c.  he  might  Live  brought  that  into  J^tiejiion.  And  of  the  fame  Opinion 
were  the  other  Juliices,  and  that  Faith  and  Credit  ought  to  be  given  to 
their  Proceedings.  But  Ty  rrel  J.held,  that  if  it  had  been  iuggefted,That  No 
Prefentment  by  a  Curate  was  fufficienr,  Nor  unlefs  it  were  upon  Oath  &:c. 
he  Ihould  ha\e  been  o'i  Opinion  for  a  Prohibition.  And  Vaughan  Ch.  J. 
laid  that  if  the  Articles  were  exhibited  merely  ex  Officio,  "viz.  out  of 
the  Mind  of  the  Chancellor  himfelf,  they  were  not  warrantable  ;  But 
that  there  is  no  Colour  for  this  Suggellion,  becaufe  they  appear  to  be  by 
the  Inlbrmation  of  a  Publick  Notary.  2  Vent.  41.  Palcli.  22.  Car.  2. 
C.  B.  Grove  v.  Elliot. 

6.  The  Plaintilf  being  Par/on  of  S.  in  D.  and  having  a  Difpenfation  for 
two  Benefices,  agreed  with  the  Defendant  for  22/.  to  J'erve  the  Care  of  S. 
The  Defendant  made  his  Application  to  theBilLop  to  enlarge  his  Stipend; 
the  Bifbop  ordered  that  he  Jhonld  allow  him  32  /.  per  Ann.  The  Plaintili" 
paid  him  his  22 1.  according  to  Agreement  ;  and  he  libelled  againll  the 
Plaintiff /or  the  Addition  by  the  Billiop  in  the  Spiritual  Court,  and  the 
Plaintilf  prayed  a  Prohibition.  The  Defendant's  Counfel  infilled.  That 
this  being  an  Allowance  by  Order  of  the  Bilhop,  was  properly  fuabic  in 
the  Eccleliallical  Court,  and  cited  3  Cro.  675.  Nat.  Br.  ji.  4  Inll.  491. 
But  the  Court  granted  a  Prohibition  ;  For  there  being  a  Contrail  between 
the  Parties,  the  Bilhop  had  no  Power  to  make  any  Order  ;  Ent  if  the 
Curate  had  ferved  the  Cure,  and  made  no  Agreement,  then  the  Bifixp 
might  have  allowed  him  what  he  thought  reafonable,  in  the  Nature  of  -a 
Quantum  meruit  i  and  a  Prohibition  was  granted.  Freem.  P.ep.  70. 
pi.  84.  Hill.  1672.  C.  B.  Pierfon  v.  Atkinibn. 

7.  Sr.  O.  B's.  Lady  fued  him  in  the  Spiritual  Court  for  Alimony,  and 
he  moved  for  a  Prohibition,  and  fnggeJled,  That  he  had ^  by  Indenture, 
convey  d  over  Lands  to  1'riifiees  of  the  Value  of  300  /  per  Ann.  for  her  fepa- 
rate  Maintenance  ;  and  that  thay  fjezved  this  in  the  Spiritual  Court,  but  they 
refufed  to  admit  it  &c.  Per  Cur.  no  Prohibition ;  For  this  Court  cannot 
take  Notice  of  a  Deed  of  Trull ;  But  if  it  be  proper  for  them  to  move 
ibr  a  Prohibition  any  where,  they  mujl  go  into  Chancery;  for  the  Execution  of 
I'm/Is  properly  belongs  to  them.  But  beJidcs,x*ilimony  is  a  Thing  that  the 
Ecclefiallical  Court  has  properly  Conulance  of;  and  if  there  be  a  lepa- 
rate  Maintenance  already,  they  will  take  it  into  Conlideraiion,  at  leall 
by  Way  of  Defalcation  in  Alimony  ;  and  if  the  Party  be  charged  too 
hard,  he  may  have  his  Appeal.  Freem.  Rep.  282,  283.  pi.  324.  Trin. 
1673.  C.  B.  Sir  Oliver  Butler's  Cafe, 

8.  A.  had  lifue  7,  Daughters,  B.  and  C.  the  two  Plaintiffs,  and  D.  and  A. 
dying  inteilate,  M.  his  NYile  adminillred  and  dyed,  and  made  the  two 
Plaintiffs  lier  Executrixes,  v.- ho  had  fever al  Bonds,  fbme  in  their  ov\n 
Names,  and  fome  m  the  Name  of  M.  to  whom  they  were  Executrixes ;  they 
alfb  took  out  Adminillration  De  Bonis  Non  to  the  Father.  It  wasfug- 
gefled  in  the  Spiritual  Court,  that  feme  Bonds  which  they  had  in  their  own 
Names  were  in  Ifrufi  for  their  Father  ;  and  that  Ibme  Bonds  in  the  Mo- 
ther's Name,  were  Debts  owing  to  the  Father,  but  the  Mother,  being 
Adminiltratrix,  had  alter'd  the  Property,  and  taken  them  in  her  own 
Name  ;  D.  fued  for  Diftribution  of  thefe  l!)ebts.  As  to  the  hrll  Part, 
the  Court  were  of  Opinion  that  a  Prohibition  ihould  go  ,  F'or  a  'Trufr  is 
fiot  examinable  tn  the  Spirit  nil  Court  ;  for  they  are  not  a  Court  of  Equity. 
Freem.  Rep.  28 3,  284.  pi.  327.  Trin.  1674.  C.  B.  Miller's  Cafe. 

9.   The 


55'^ 


Prohibition. 


9.  The  Mayor  and  Aldermen  of  Briftol  prefented  A.  to  the  Paiifl-i- 
Church  of  C.  in  that  City,  and  the  Defendant  libelled  againft  him  in  the 
Arches,  ibr  that  he  was  ttot  zi  Tears  old  "when  made  a  Deacon^  fwr  24 
Years  old  ivben  he  entered  hitoPricJl's  Orders  i  and  the  Statute  of  1 3  Eliz. 
cap.  12.  requires,  that  none  Ihail  be  made  a  Miniller,  or  admitted  to 
preach,  under  that  Age.  It  was  fnggcjlcd  lor  a  Prohibition,  that  this 
Ali'tter  iCi'.s  trial le  at  Law ^  and  not  in  the  Spiritual  Court ;  bec.uije^  if 
true,  a  teii/pordl  Lofs^  viz.  Deprivation,  might  jollow.  But  the  Court  de- 
nied the  Prohibition,  and  compared  the  Cafe  to  that  of  a  Drunkard  or 

punilhed   in  the  Spiritual  Court,    tho' 
3  Mod.  67.  Pafch,  i  Jac.  2 


ill    Li'.er,    a\  ho  are  ufually 


S.C  6Mod 

iSS.  Trill. 
;  Annac. 
And  per 
HoltCh.  J. 
If  the  LU 
bel  be 
grounded 
upon   tlie 
St.itute  of 
I  EliT..  they 
may  com- 
pel you  to 
come  to 
your  Parifh 
Church  : 
For  that  Sta- 
tute does  di- 
reftly  ibb- 
k£t  People 
to   the  Ec- 
clelliftical 
Law  ill  this 
Point.  Af- 
terwards a 
Prohibition 


a 


E.  R.  Roberts 


Defendant  pleaded  that 


•  not  cor, 
he  went 


'trig  to  his 
to  anctker 


A  Prohibition  was  granted,  and  Plain- 


temporal  Lofs  may  enfue 
V.  Pain. 

10.  The  Parfon  libelled  againft  the  Defendant  fo 
Panth  Church  on  Sundays 
Church  more  coiiniiodioiis  jor  him. 
till'  declared  therein.  The  lingle  Queltion  was,  VV^hether  a  Pariihioner 
is  compellable  to  go  to  his  Parilh  Church  ?  It  was  inlilled  that  he  was  i 
becaule  every  Parlbn  is  obliged  not  to  allow  a  Pariihioner  oi  another 
Parilli  to  partake  of  Sacraments  with  him,  and  by  the  Aft  of  Uniformity 
every  Man  is  required  to  refort  to  his  Parilh  Church.  To  this  it  was 
laid,  that  the  Dijlribiition  into  Parijhes  was  by  the  Common  Law^  and  it  in 
Coniequence  thereof  the  People  were  brought  under  a  new  Obligation, 
fuch  Obligation  ought  to  be  examinable  at  Common  Law.  The  Court 
agreed.  That  an  entire  Negle6l  to  go  to  any  Church,  is  punilhable  in  the 
Eccleliallical  Court  ;    that  this  Matter  was  of  Eccleliaitical  Conufince, 

■  and  that  Prima  facie  it  was  a  good  Charge,  that  a  Man  went  not  to 
his  Parilh  Church.  And  they  feemed  of  Opinion,  that  tho'  the  Ad  of 
U/tiformity  be  taken  as  introdu£live  of  a  new  Law,  yet  the  thing  being 
purely  ot'  Eccleliallical  Conufance,  and  proper  for  their  Examination, 
a  Confultation  ought  to  go.  But  there  was  no  Refolution.  i  Salk.  166. 
Hill.    3  Annse.   B.  R.    Britton  v.  Standiih. 

was  granted,    and  ordered  to   declare  forthwith. 

11.  If  a  Man  be  proceeded  againft  as  an  Heretick  in  the  Spiritual 
Court,  Pro  Salute  Anims,  and  thinks  himfelf  aggrieved,  his  proper  Re- 
medy feems  to  be  to  bring  his  Appeal  to  a  Higher  Kcclejiafiical  Court,  and 
not  to  move  for  a  Prohibition  from  a  Temporal  one,  which,  as  it  feems 
to  be  agreed,  cannot  regularly  determine  or  difculs,  what  ihallbe  called 
Hcrefy.     Hawk.  PI.  C.  4.  cap.  2.  S.  9. 


(D)     In  what  Cafes   the  Court  fhall  not  be  oiifled.  hi  Re- 
Jpe^  of  Collateral  Thhigs. 

I*  Tii^  Trcfpafs,  if  tljC  Right  of  Tithes  comes  in  Debate  between  a 
X   Parfon  and  a  Layman,  bCdlQ;  il  Farmer  o'i  another  Parfon,  tl)C 

Court  fljaU  not  lie  ouftcti  of  3luri£i5tctton.   20 1).  6. 17,  ij^ 

2*  Jn  an  Annuity  between  fpiritual  Perfons  llj)  rcafOll  Of  CEttailt 
Ci)UrCtlC5  Cijargeable,  grounded  upon  the  Deed  of  Grant  sjf  tljC  Pte= 

ncccffor  of  one,  tijo'  tlje  perfonsi  aim  '^\)\m,  out  of  uiljtclj  it  imteig, 
arc  fpirttual,  pct  In?  Ecafoii  of  tijc  Deeti  tl)C  Court  fljaU  not  U  ouftcn 
of  JurisiUicttdn.   29  c*  3*  39*  b»  ^Diunijeti. 

3.  If  the  Patron  has  Indenture  to  go  quit  r/ Tithe  ofCheefe  &c.  and  is 
fued  in  the  Spiritual  Court  for  thofe  Tithes,  he  Ihail  have  Prohibition 
upon  this  Indenture.     Br.  Prohibition,  pi.  21.  cites  the  Regifter  38. 

4.  If 


Prohibition. 


55 


o 


4.  ll  ;i  HoiihJii  hath  Title  to  ftte  a  Cm  m  Vita,  and  Jhe  fjucars  unto  the 
Tenant,  that  /he  isjill  not  fiie  the  Cm  in  Vita  againlt  him  ^  if  Ihe  after- 
wards fueth  lorth  the  Writ,  for  which  the  'J  enant  fueth  her  in  the  Spi- 
ritual Court  lor  Breach  of  her  Oath,  ihe  ihall  have  a  Prohibition,  be- 
caule  the  O.nb  tcucheth  a  'Temporal  Things  viz.  Lands.  F.  N.  B.  42  (l). 

5.  If  Slander^  or  *=  laywg  'vioknt  hands  upon  a  Ckrk^  happen  upon  a  Tern-  *  ■^.^  for  ar- 
foral  Caiife^  and  the  other  lues  for  it  in  the  Spiritual  Court,  Prohibition '''^'[',"^' '""^ 
lies  ;  and  tlierefore  it  fcems  that  of  f  thofe  Defamattoiis^   by  which  the  Law""and^ 
Party  is  damnified^  the  Spiritual  Court  cannot  hold  Pica  ^   For  it  is  laid,  he  (iics  in 
that  Crimes  of  Faljity  and  Adultery  appertain  to  the  Spiritual  Court,    and  i',i<^  i>piiitual 
Confultation  Ihall  be  thereof  granted  i    and  the  fame  it  leems  of  Ufnry.  f-.°^"'?'  ^''o^ 
Br.  Atlion  fur  le  Caie,  pi  1 15.  cites  the  Regilter  54.  B,  Pro-  "' 

hibitioii. 

pi.  21.  cites  Rcglfter  fol.  42.  and  Quxre  fol.  51. j  As  becaufc  he  gave  Evidence  againlt  the 

Plaintiff  who  uas  indiitcd,  and  he  iues  in  the  Spiritual  G)urt  for  Defamation,    a  Prohibition  lies.     Ba 
Prohibition,  pi.  21.  cites  Kcgiller  fol,  42. 

6.  When  the  Or/f /"».'?/ Z'f^/«j  in  Court  Chrijlian,  altho'  that  afterwards  •^'i'  where 
a  Matter  happens  in  Illue  which  is  triable  hy  our  Law ^  yet  this  Ihall  be  <>"'-" ''•'.'^^ '" 
tryed  there  by  their  Law  ;  As  if  one  do  fuethere  for  a  Horfe  to  hini  de-  Court'/Il-^" 
vilcd,  tne  Defendant  there  pleads,  that  the  Devifor  did  give  this  ^ioiia  q'nUs'  of 
unto  him  in  his  Life-time  ;    this  is  triable  by  our  Law,    yet  the  fame  -^i'^'/o  ;  the 

Ihail  be  try'd  there.  2  Built.  227.  Pafch.  12  Tac.  Parker  \ .  Kemp.  Defendant 

•^  .   ;.  •'  ^  ?/c7</m' there 

an  yJii-ard,  arid  then  prayed  a  Prohibition,  for  that  an  Award  is  Matter  ti-i.xble  at  Law  ;  but  it  was  de- 
nied by  the  Court.  So  if  a  Suit  U  fo>-  a  Legacy,  and  the  Defendant  fug^^^rps  P.i^mert  ;  or  if  an  Jcutiit- 
ame  is  pleaded,  no  Prohibition  fliall  no  ;  Becaufe  where  the  Sjiritual  Court  has  Conufancc  of  the 
principal  Matter,  there  a  Matter  fublcqueiit  and  dependant  upon  it,  which  is  triable  at  Common  Law, 
:fhall  not  deprive  the  Spiritual  Court  of  their  Jurildirtion  ;  But  it  was  faid  by  Coke,  and  agreed  by 
Doderidge,  that  if  that  Court  fliould  adjudge  othcrwilc  upon  an  Acquitance,  or  an  Award,  tlian  ac- 
cording to  the  Common  Law,  in  fuch  (lifes  a  Prohibition  fliould  go.  i  Roll.  Rep.  12  Pafch 
12   Fuc.  B.  R.  Aron.  S.  C 

^0  where  the  Churchwardens  libelled  fora  Church  Rate  which  was  fcntcnc'd  againrt  them,  and  then 
they  appealed  to  the  Metropolitan  ;  but  pending  the  Appeal,  one  of  the  Appellants  releal'cd  to  the  Ap- 
pellee all  A'tions,  Suits  and  Deman  :s  ;  but  the  other  Appellant  proceeded  in  his  and  his  Partner's 
>;anie  to  reverfc  the  Sentence?  whereupon  the  Appellee  pray'd  a  Prohibition,  and  Ciiggelled  this  Re- 
leirfe,  fuppofmg  that  it  dil'cliarged  the  Appeal.  But  upon  Demurrer  it  was  adjudg'd  by  all  the  |udrc5 
Una  Vo.e,  tliat  Prohibition  lies  not  upon  this  Suggeftion  ;  Becaufe  the  Temporal  Court  has  norhin-r'to 
do  to  meddle  with  tlie  principal  Matter,  that  being  merely  fpiritu.il,  and  to  be  determined  in  Court 
C'hriftian  ;  And  fir.ce  the  Ground  of  this  Suit  belongs  to  that  Court,  all  Things  dependent  thereupon 
■will  belong  to  theni  alio.     And  whether  this  Relealc   will  bar  both  the  CInirciiwardens  or  nor,  fliaU 

•be  determined  there,  and  not  in  B.  R.     Yelv.  172.  Hill.  7  Jac.  B.  R.  Srarkey  v.  Barton  and  Gore.. ■ 

Cro  J.  234.   S.  C.  but  not  exaftly  S  P. — Nov  129.  S.  C.  by   Name  of  Gore  v.  St.irk , So  where 

Churchwarden.s  after  the  Year,  were  cited  i4ito  the  Spiritual  Court  to  make  a  Preientment  Per  \'ini 
Juramenti  taken  by  them  as  Churchwardens,  whereupon  they  prefented  F.  for  not  coining  to  Church  ; 
apd  it  being  fuggethd  for  3  Prohibition,  that  this  was  the  lame  as  citing  one  Ek  Officio  ;'For  that  the 
Determining  of  the  Office  dcrermin'd  the  Oath,  Atkins  J.  was  of  Opinion  for  a  Prohibition  ;  but 
North,  \\'ind!«m,  and  Scroggs  e  contra  ;  For  ill  Where  u  Matter  is  ■u;lclly  of  EccleHaftual  Coi::ij\i>ue 
there,  tho'  they  fvocced  irregularly,  no  Prohibition  ffiall  go,  but  the  Rei/iedy  Hcs'Ly  If'a\  of  .-JlfeaJ. 
And  here  this  Preientment,  tho'  it  be  after  the  Party  is  nut  of  his  (office,  yet  whether  this  may  not  be 
by  their  Rules  and  Canons  Non  conftat  to  this  Court.  Where  a  Matter  is  of  Ecclefiaftical  i  ^oirni.'jnce 
if  a  ^Latter  determinable  at  Common  Law  intervene,  they  fhall  try  that,  except  it  be  in  Calc  oV  a  Mo- 
•du.s,  which  by  Law  they  cannot  try  ;  as  if  a  Legacy  be  fued,  and  a  Kcleafc  pleaded,  they  fhall  try 
this  F.eleafe;  but  then  it  muff  be  w  ivh  this  Diftercnce.  That  when  tl;cy  try  an  incident  Matter  de- 
terminable at  Common  Law,  by  Reai'on  of  their  Jurifdiftion  in  the  principal  Matter,  there  they  fliall 
he  tyed  up  to  the  Rules  of  Common  Law  ;  As  in  the  Ca(e,  if  a  Keleafc  be  pleailed  to  a  Legacy,  and 
and  there  be  but  one  \\'itnefs,or  elfe  the  VX'itnels  is  dead,  and  they  will  not  admit  of  proving  Hands,  nor 
allow  one  Witnefs  tor  a  Proof,  they  fli-dl  be  prohibited  ;  P'or  .iltho"  tliofc  Matters  come  under  their 
Cognii'.ance  as  Incidents,  yet  being  Matters  originally  of  Temporal  Cognisance,    they  fhall  n-o  accord-- 

jng  to  the  Rules  of  Common  Law.     Freem.  Rep.  290.  pi-  q4i.  Trin.  16-7    C.  B.  Anon, S.  P.  And 

fi  where  LiLel  h  for  the  tithes  of  fuch  a  C/nfe,  and  ihi  Defendant  pleaii;  that  it  is  jrot  his  Clefe,  but  the 
Ckfe  of  A!:other  Pcvi'on ;  this  Ihall  be  tried  in  the  Spiritual  Court.  Sid.  S9.  Mich.  14  Car.  2.  BR. 
Butler  V.  Yateman. 

Where  anEcclefiafrical  Court  has  Original  JmifiiiBiov  of  aCaufc,  yet  there  is  WW.  to  be  a  Diffaeme'm 
the  Cd'e  of  an  EalefalUcal  and  Lay  Perfon,  vi?,.  that  in  the  Cafe  of  the  firft,  their  Sentence  may  not  be 
exaniincd  in  the  Temporal  ('ourt,  but  in  that  of  the  other  it  miy  ;  (>iia;:-e  t.imen  Am-  Skin.  495.  Trin. 
6  VV.  &  M.  B.  R.  in  tlie  Cufe  ot  Philips  v.  Bury. 

•7  A  7.    So 


554  Prohibition. 


I  z  Rep  6;.  .y  ^q  where  the  Original  begins  here^  and  a  Matter  happens,  the  fumQ/hall 

r'mc  \)\-  ^'^  ^''^'^  ^'''^  ^'' ''"'"  "^'''"^  i  as  in  a  Qiiare  Impcdit,  Able,  or  Not  able.  Jf  it 
vciiivv  ;  but  ^-'^c uthcrwiie,  they  Ihould  there  try  nothing  -This  is  belongingto  them  , 

if  llTi'ic  bi;  But  if  they  will   there  draw  the  Matter,  Ad  aliud  Examen,   As  upon 

taken  at  Proot"ofa  Deed,  they  judge  otherwise  than  we  do,  as  in  cafe  oi  a  Leafe 

Law'u°ona  ^"'^  Years  to  be  made,  "they  hold  the  ikme  mult  be  Traditione,  qr  void  i 

Matter  '-n"^  ^^  "^  Grant  of  Goods  to  be  delivered,  or  not  good,  in  fuch  Cafe  we 

tbere,  and  v.iil  prohibit  them.    2  Bulf  227,  228.  Pafch.  12  Jai:.  Parker  V.  Kemp. 

which    is 

triable  by  the  Spiritual  Law,  in  fiich  Cafe  the  Judges  of  our  Law  Hiall  write  to  the  Judges  of  the  Spi- 
ritual Court  to  try  it,  and  to  certifv,  wiiich  they  cannot  do  to  the  Judges  of  our  Law.  Refolv'd  per 
tot  Cur.  J\lich.  b'jic.  in  Roberts's  Cafe. 

8.  A  Bifjcf  gr.wted  the  Office  of  Cominiffary  and  Vicar-General  within 
his  D').oc<dt  to  Dr .  i>.  for  Life ,  ivith  all  Fees  &Lc.  thereunto  belonging, 
which  Grant  was  conrirmed  by  the  Dean  and  Chapter  ;  Afterwards  the 
Bijhop  inhibited  the  Regtjler  from  entering  ARs  by  i',:c  Dodor,  or  paying  him 
any  Fees  ,  and  thereupon  tfae  Do£lor  libelled  againll  the  Bilhop  for  dif- 
lurbing  him  in  his  Office  ;  and  the  Bilhop  fuggtfled  for  a  Prohibition, 
that  this  concerned  Freehold^  viz..  the  Office  which  was  granted  lor  L.ife  , 
But  per  Ley  Ch»  ].  Doftor  B.  may  have  a  Prohibition  againit  the  Bi- 
fhop  lor  aDiftuibance.  2  Roll  Rep.  306.  Pafch.  21  Jac.  B.  R.  Doftor 
Barker  v.  Bifiiop  of  Oxon. 

9.  Prohibition  was  moved  for  to  the  High  Commiffion  Court,  where 
a  Parfon  libelled  for  an  Jfjattlt  on  him.  And  though  they  have  an  exprefs 
Authority  by  their  Commilfion  to  meddle  in  fuch  Affairs,  yet  becaufe 
this  would  make  all  the  Ordinaries  in  England  be  to  no  Purpofe,  the 
Prohibition  was  granted.  Hetley  19.  Palch.  3  Car.  C.  B.  Giles  v.  Ba- 
1am. 

Raym,  S8.  10.  K  Prebendary 'who  had  a  Peculiar  Jurifdiclion  leafed  his  Prebend 

P''m'''"'  ^-"'f^'  '■^1^  Profits,  Coininodities,  and  Ad-v.vitages  Sc  thereto  belonging.  The 
cl)iiTs"c.  Queftion  was,  VV  hether  the  Ecclelialtical  Jurifdiftion  palfed  to  the  Leil 
and  the  Sug-  fee,  fo  that  he  might  make  a  Commillary  to  hold  Courts  or  not.  The 
gcftion  was,  Ch.  J.  and  Windham  held,  that  he  could  not  ;  For  this  is  annexed  to  the 
J^'""'^^ '''■'^' Spiritual  Perfon,  and  not  to  the  Lay  Corps  of  the  Prebend  ;  and  W  ind- 
ht"Farme«  ^'^"^  i-^\A,  that  the  Commiflary  is  only  a  Deputy  of  the  Prebendary, 
Tiire  out  oV  which  his  Lellee  cannot  make  for  him^  but  Keeling  and  Twifden  con- 
JMind  had  tra,  and  held  it  annexed  to  the  Corps  of  the  Prebend,  andpaffed  with  it. 
r^-*^  ^-'^o-  h  But  this  being  the  firft  Motion,  the  Plaintilf  was  ordered  to  declare  up- 
fai'd  Office  °"  ^'^  Suggeltion,  and  the  Defendant  to  demur  upon  it,  and  fothe  Point 
andthatthe  to  come  judicially  in  Queftion.  Lev.  125.  Hill.  15  &;  16  Car.  2.  She- 
Defendant     rock  V.  Boucher. 

pretended 

that  the  DifpoHHl  tliereof  belonged  to  the  Dean  and  Chapter  of  L.  who  libelled  for  it  in  the  Spiritual 
Court,  and  Co  lUe  Fnel.oltt  rf  It  woiilii  come  in  ^iief  ion.  The  Court  was  divided;  Rut  afterwards  Hide 
faid,  That  the  Right  of  the  Office  did  come  in  (Queftion,  and  tliereupon  a  Prohibition  was  granted. 

II.  Spiritual  Court  may  proceed  upon  an  Aff  of  Parliament,  or  other 

temporal  Matter  incident,  fo  long   as   they  proceed  according  to  tke 

Rules  of  the  Common  Law.  2  Lev.  64.  Trin.   24  Car.  2.  Juxon  v.  Bi- 

ron. 

S  C  by  the        12.  A  Proffor  libelled  for  his  Fees,  and  upon  praying  a  Prohibition  it 

N.ime  of      was  faid  by  Vaughah  Ch.  J.  and  Windham  J.  That  no  Court  can  better 

^f.aiigliron    judge  of  the  Fees  which  have  been  due  and  ufual  there  than  themfelves, 

b.  Jmtlfon.  molt  of  which  are  appointed  by  Conllitutions  Provincial,  and  thereby 

120^0!  15T  '•'^^y  P'"o^s  them.  And  they  granted  a  Prohibition  as  to  fome  Particulars 

accordingly,  i"  the  Libel  which  were  of  temporal  Cognizance,  but  not  as  to  the  Suit 

Ellis  J.  ab-    for  the  Fees.     Windham  faid,  that  if  there  had  been  an  atJual Contra^ 

fejite,  and       j,pn  the  Reteiner,  the  PlaintilFought  to  have  fued  at  Law.     But  Atkins 

throther   ^    1-  thought  a  Prohibition  ought  to  go  tor  the  whole  j  becaufe,  as  he  faid, 

part  of  the  .^^^^  had  no  Relation  to  the  JurildiSion  of  the  Spiritual  Court,  nor  to 

Libel  was      the  Caufe  in  which  the  Proctor   was  retained  i  thit  the  Proftor  might 

h.tve 


Prohibition.  555 


have  Aftion  on  the  Cafe,  the  Retainer  being  an  implied   Contratt.     But  ^or  the  Ex- 
a  Prohibicion  was  eranted   Quoad  &c.  Mod.   167.  pi.  5.  Mich.  25  Car.  2.  ^f""^  "^  " 
C.  B.  Horton  v.  W^ilfon/  c&V" 

Lrj.jr^e  of  a 
MejJ'enger 
£pf.  which  being  as  Things  pi-ounded  on  a  Contraft,  or  Quantum  Meruit,  the  Sphitual  Court  cinnot 
try  them,  but  as  to  tlic  cultomary  Fees  they  may  ;  though  if  the  Cuftom  be  controverted  a  Prohibition 
fhall  go.  And  that  Atkyns  J.  who  was  for  a  Proliibition  for  the  whole  laid,  that  Fees  differed  from 
Cojls  ;  For  they  mav  give  Colls,  which  are  Part  of  the  Suit  and  Decree,  as  at  Common  Law  it  is  Part  of 
the  Damage  of  tlie  Party,  and  in   the  fame  Judgment ;   And  reports,  that  Windham   doubted,  wlictlier 

the  Proiitor  could  recover  his  Fees  by  an  Adion  of  the  Cafe. But  upon  a  like  (^ellion  it  was 

h.'ld  per  Cur.  That  it  is  Cuftom  and  not  the  Authoritv  of  Conftitutions,  which  intities  Prodtors  5:c.  to 
their  Fees,  and  tluit  an  Action  will  lie  for  them  at  Common  Law,  and  therefore  the  Spiritual  Court 
ought  to  be  prohibited;  And  the  Rule  was,  That  they  fllould  declare  upon  the  Prohibition.  4  Mod. 
254.  Hill.  5  VV.  £c  M.  B.  R.  Johnlbn  v.Oxcnden. 

13.  Libel  in  the  Spiritual  Court  by  Clark  of  a  Parijb  for  4  d.  per  An- 
niim  due  to  him  hy  Cnjlom  irom  e\ery  Mailer  of  Family  in  a  Pariih  i 
Defendant  denied  the  Cullom  ;  Prohibition  was  granted,  becaufe  Cul- 
tom  is  not  triable  there  except  in  Cafe  of  Pif////o«j-.  12  Mod.  260.  Hill. 
II  \V.  3.  B.  R.  Pollard  v.  Awker. 

14.  jidmimjiration  was  committed  to  a  VVoman  as  IVidoiv  oj  1\  S.  and  a 
L'lhel  was  in  the  Spiritual  Court  to  repeal  the  Adminillration,  fipou  Sup- 
gejiioii  that  T.S.  had  a  fonuer  iJ^lJ'e  living  at  the  time  of  his  Death;  a 
Prohibition  was  granted.  Per  Holt  Ch.  J.  12  Mod.  432.  Mich.  12  \V.  3. 
in  Cafe  of  Hemming  v.  Price,  and  cited  7  Rep.  43.  b.  44.  a.  Kenn's 
Cafe  ;  and  Style's  Rep.  10. 

15.  Solicitation   to  Incontinence  coupled  with  Force  and  Violence  does,  by  ■^'"  if  one 
reafon  of  the  Force  which  is  Temporal,  become  a  Temporal  Crime  In  '^';"^^'^^"^ 
Toto.  2  Salk.  552,  Mich,  i  Ann.  B.  R.  Galizard  v.  Rigault.  Hmband^" 

brings.-/^^;;/f 
and  Battery,  this  Hiall  not  hinder  the  Spiritual  Court ;  For  it  is  a  criminal  Proceeding  there,  and  no  fn- 
diftment  lies  at  Common  Law  for  Adultery.  Per  Holt  Ch.  J.  2  Salk  552.  ciiesl  E.0II.  295.  2  Inli. 
4b8. 

16.  A  Libel  was  for  Eajler-Offerings^  fuggelling  that  they  had.  Time 
out  of  Mind,  ufed  to  be  paid  in  that  Parilli.     The  Defendant  made  no 
Defence  at  all   in  the   Spiritual  Court  ;  but   after  Sentence  againlt  him 
mo\es  the  Court  of  B.  R.  for  a  Prohibition.     The  Motion  was  granted 
Niji.     The  Reafon  why  the   Court  doubted,  whether  the  Prohibition 
was  to  be  granted  or  not,  was  their  Ignorance  of  the  Practice  of  the  Spi- 
ritual Court ;  lor  the  Court  feemed  clearly  of  Opinion,  that  if  the  Prac- 
tice of  the  Spiritual  Court  was  agreeable  to  that  of  the  Courts  at  Law,  viz.  to 
take  every  Thing  Pro  Confejfo  againll  a  Defendant  tliat   makes  no  Defence^ 
and  fogive  Sentence  for  the  Plaintifl'  without  obliging  him  to  prove  the 
Truth  of  this  Cafe,  then  the  Prohibition  was  not  to  be  granted  ;  becaule 
the  Cuftom  fet  forth  by  the  Plaintiff  was  not  denied   by  the  Defendant, 
and  confequcntly  no  Occafion  for  Trial  of  the  Cutlom.     P-ut  in  Cafe  tlie 
i'ra^/^  of  the  Spiritual  Court  was   not  to  give  Sentence  for  the  Plaintiff'' 
even  in  Cafe  of  no  Defence  made  hy  the  Defendant,  without  Proof  made  to 
the  Court  by  the  Plaintiff  of  the  Truth  of  his  Cafe,  that  ■  then  a  Prohibi- 
tion was  to  be  granted  ;  becaufe  then  the  Sentence  of  the  Spiritual  Court 
was  founded  plainly  upon  Proof  made  before  them  of  a  Cuflom^  which   is 
not  to  be  permitted,  becaufe  the  Proof  required  by  them,   is  very  diffe- 
rent from  that  required  by  Common  Law.     Doftor  Pinfold,  who  fpoke  a- 
gainll  the  Prohibition,  ingenuoufly  owned.  That  it  was  the  Praftice  of 
the  Spiritual  Court  to  require  Proof.     However,  the  Court  took  Time 
to  conlider,  and  would  not  make  the  Rule  abfolute.  10  Mod,  440.  Trin, 
S  Geo.  B,  R.  Doftor  Bows  v.  Jurat. 


(E) 


556 


Prohibition. 


(E)   Ifl.mt  PkiUpnll  oi/ft  the  Court  of  JnnfcUtiion. 

B^lui-ii^  I.  T  Jf  tljC  JflllC  be  whether  the  Place  where  the  Tithes  tOCiC  bC  in 
diction,  pi  j[    th^.  p.iriliiofone  Parjbn  or  ot  another,  tljC  COUrt  lljall  tlOt  bC 

E  -^Tand  o»iift5  Of  Junsnictiom  5°  <S.  3-  20.  b*    20  \),  6, 17.  b»    22  e.  4.  22. 

pl/51, cites     38€.   3.  5b»      39€,  3-23.  b, 
59E  5.  23. 

_; S  P.  tlwt  becaufc  tl-.cy  were  at  IlTue  upon  the  Place,  the  IfTue  was  accepted,  and   the  Defendant 

compelled  to  iuil\vcrj  where  he  iliould  have  unlwercd  to  the  Juiiiiiiction,  Br.  Jurifdiftion,  pi.  50.  cites 
5  H.  5.  10. 

2.  jf  tljc  JlTitc  be,  iuljctljer  tljc  one  Parn^n  i)as  bp  ^-Jrcfcrlptioii  a 

Portion  ot  1  ithes  in  the  Parilh  ot  the  other|3ariOII,  tljlS  fljilll  UOt  OUft 

tljc  Court  of  Junsoictton,  becaufc  40  B-cars  bp  tljc  ^witual  ILmu 
IS  gooB  i^itfcnption,  uiljiclj  it  is  not  at  tijc  €ammaa  laiu*   23  d, 

6.  17. 

s.p.  hecauft  3.  jf  a  l3iirfon  fues  for  -^itljcd  in  tijc  ecclcfiamcal  Court,  ann 
thev  meddle  (jjj,  £)j;tnroant  faps,  tbat  tijc  Place,  for  uiijidj  tljcTuhes  arc  fucn,  i.^ 

uhich  ir       '^^  •^"«^'^er  Parilh,  \l  PrOljlbltlOU  llC^. 

out  of  their 

Turifdirtion,  tho'  the  origiral  Thin^  be  of  their  Conuiance,  and  this  comes  m  obliquelv.     Arg.  Show. 

10.  Mich.  4  ]ac.  2.  in  Cale  of  Clarke  v-  Andrews —For  the  Bounds  of  Parifhes  are  triable  at  the 

Common  LaW  But  the  Court  denied  a  Prohibition,  bccaufe  it  Ai  jwt  appear  that  a  Plea  thereof  had 
been  cfferci  in  the  Ecclefiaftical  Court.  Vent.  ;;  5.  Anon. 

A  Prohibitio;i  fhall  not  be  granted  on  a  hare  Siirmife  that  he  is  fued  for  Tithes  by  the  ParfoK  of  D.  of 
Lands  in  the  Parijh  (1/  .J.  unlefs  it  appears  in  the  Pleading  in  tlx  Sp:r!l:ial  Court.  Noy.  147.  Phillips  v. 
fclackc. 

4.  In  Trefpafs  by  the  Abbot  againft  the  Parfon,  of  Corn  carried  away, 
t\\t  Dejciidant  pleaded  Coiupojiti')!!.^  and  concluded  to  the  Jurildiction  lor 
Tithes  i  Per  Morrice,  the  Conipolition  goes  in  Bar,  and  therefore  you 
have  affirmed  the  Jurildiction.  But  per  Thorpe  and  Wombray,  No, 
where  he  concludes  to  the  Jurifdiftion  and  not  in  Bar.  Q^u.^ere.  Br.  Ju- 
rifdiftion,  pi.  35.  cites  38  E  3.  19. 

5.  In  Trejpafs  of  Com  the  Defendant  claimed  them  as  'Tithes^  if  his 
Flea  and  Conchifion  goes  to  the  A[iion^  the  Common  Lawihall  take  Cogni- 
zance i  Per  Finch  ■■,  Quod    non  Negatur.  Br.  Jurifdiftion,  pi.   12.  cites 

46  E-  3-  9- 

6.  If  a  Man  fues  in  Court  Spiritual  for  a  Legacy  or  Devife,  where  the 

other  alleges  a  Gift  of  it ^  yet  the  Spiritual  Court  Owll  have  jurifdiction  ; 
and  this,  notwithihmding  that  the  Party  be  not  Executor  nor  Admini- 
llrator.  Br.  Jurildiction,  pi.  13.  cites  46  E.  3.  32. 

7.  Trelpafs  by  a  Parfon  againll  a  Prior,  of  a  Clofe  broken  and  Grafs  fpoil- 
edy  the  Defendant  faid,  that  it  is  his  Glebe,  and  the  Planitiff  claiming  tt  as 
his  Glebe  entered 6cc.  Judgment  if  the  Court  will  take  Cognizance;  & 
non  allocatur  ^  for  7'refpafs  done  upon  his  Franktenement  cannot  be  tried  in 
Court  Spiritual.  Br.  Jurifdiftion,  pi.  41.  cites  19  H.  6.  20. 

S.  C  Cro.  E.  8.  Prohibition  was  awarded  upon  a  Snggejlion^  That  the  Defend.tnt 
^\^'?^'^:  WHS  a.  Clerk,  and  afjarilted  the  Plaintiff's  Servant,  ivhereiipon  the  Plaintiff 
BR  reports,  P'''^'"^^^/)'  ^^"^  ^'^  Hands  on  the  fa  id  Clerk,  and  that  he  had  alleged  the  fame 
That  the  '  m  the  Spinttial  Coiirt,  and  they  worild  not  alkw  it.  And  it  was  rul'd  and 
Defendant  adjudg'd,  That  the  Prohibition  Ihould  Hand,  notwithllanding  the  Statute 
in  the  Spiri- j)g  Articulis  Cleri,  cap.  3.  Mo.  915.  pi.  1297.  Mich.  3i£liz.  B.  R, 
XiiX-  Kelly  V.Walker. 

ther.  That 

on  his  laying  his  Hands  peaceably  on  the  Plaintiff  there  (the  now  Defendant)  the  Plaintiff  tliere  made 
an  AtTault  upon  the  now  Plainritf,  and  the  now  Plaintiff  defended  himfelf ;  and  that  if  the  Defendant 
here  had  any  Hurt,  it  was  De  Ion  AlTault  demcfne.  The  Defendant  here  confefi'd,  That  the  Plaintiff 
here  pleaded  fuch  Plea  there;  but  fhew'd,  That  the  Plaintiff  here  was  condsmn'd  th.>re  for-Non-Attcnd- 


ance 


Prohibition.  cti 


ance,  and  travers'd  the  Rcfulal  of  the  Pica.  Gawdy  hc-ld,  That  this  Caft;  wfis  out  of  tht-  Statures  of 
Articuli  Clcri,  and  of  Cii-ciini(pcift:e:ig;itis.  for  Iiere  the  Party  had  pood  Caiifc  to  beat  the  Clerk  ;  and 
fisto  the  Travcrle,  it  is  not  good,  for  t;.iSi:>-mife  :s  >:ot  iraveij'.ibie.     And  adjudjj'd  ior  the  Pl^inntf! 

9.  A  Prefefitvient  was  Ex  OlTitio  in  the  Ecclclialtical  Court,  for  not  jre- 
quentuig  his  Partp  Church  ■■,  he  p'eaded,  I'hat  tbis  -was  ;;&/  his  Parifh 
Churchy  but  that  he  had  uied  to  frequent  another  Parilh  Church,  and  to 
refbit  to  this.  And  upon  Rclulal  ot"  this  Plea  he  had  a  Prohibition,  for 
that  Court  f.-7;/»or  <'/6riTw/«f  the  Precin£ts  of  Parifh  Churches,  nor  judge 
what  fhdll  be  faid  a  Aim's  Parijh  Church;  And  io  was  the  Opinion  of  tfte 
whole  Court,  and  therefore  a  Prohibition  was  granted.  Buht.  159.  Trin. 
9  Jac.  Anon. 

10.  The  Executors  ga-ce  Bond  to  Legatee  for  Payment  of  his  Legacy.     It  ^  C.  cited  8 
was  held  by  Dodcridge  J.   That  the  Obligee  might  either  fue  in  the  ^I"!|' ^"'^^ 
Court  Chriltian  for  the  Legacy,  or  at  Common  Law  upon  the  Bond  ;  tor  Geo  'i  'in 
that  the  Taking  cf  the  Obligation  for  the  Payment  had  not  totally  de-  the  Ca'bof 
fnov'd  the  Nature  of  the  Legacy.  2  Roll.  Rep.  160.  Pafcli.  18  Jac.'B.R.  Cuband  v. 
Gardiner's  Cafe.  Dewsbury. 

Bur  the 
Court  there  was  of  a  contrary  Opinion  ;  for  that  the  Legacy  was  drown'd  in  the  Bond,  and  that  the  O- 
pision  of  Judge  Doderidgc  was  not  Law. 

11.  Upon  a  Libel  for  Tithes^  the  Defendant y?c^ff/?c'<i',  That  the  Lands 
where  &c.  are  Parcel  of  Hackney  Marfli  j  and  that  Time  out  of  Mind 
there  was  a  Modus  of  iSs.  The  Detendant  had  a  Prohibition.  A  Confulta- 
tion  was  pray'd,  becaufe  the  Defendant  had  not  proved  bis  Suggcjtion  'ivithin 
6  Months  according  to  the  Statute ,  for  he  brought  2  Jntnt^feSj  who  proved  only  ^ 
'That  they  heard  that  for  40  or  50]  ears  laji  paff,  no  Tithes  tn  kind  had  been  fvr 
thefe  Lands ^  but  a  certain  Sum  ot  Money.  But  Per  Ley  Ch. J .  in  many  Cafes, 
by  the  general  [Word]  (Proof)  is  to  be  underllood  (Concluding  Proof) 
fuch  as  may  perfuade  a  Jury  &c.  But  by  him  and  Doderidge  J.  the  Mif- 
chief  was.  That  Perlbns  were  delay'd  by  talfe  Suggellions,  and  therefore 
the  Statute  ordain'd,  That  all  Suggellions  fliould  be  prov'd  ■■,  But  this 
means,  That  it  Ihould  be  by  a  Probable,  and  not  by  a  Strict  and  Con- 
cluding Proof  And  by  Doderidge,  the  Srritt  Proof  ihall  be  afterwards 
upon  the  Traverte  before  the  Jury  ;  And  Confiiltation  was  not  granted. 
2  Roil.  Rep.  434.  Trin.  21  Jac.  B.  R.  Pagget's  Cafe. 

12.  A  Surmiie  that  the  Tithes  belong  to  the  Vicar^  and  not  to  the  Parfon^ 
will  not  be  a  good  Ground  tor  a  Prohibition  ;  lor  the  Right  of  Tithes  is 
confeifed  bv  it,  and  whether  they  belong  to  the  one  or  the  other,  is 

merely  Spiritual.     Koy.  147.  Randal  v.  Knovvles. And  cites  it  as  fo 

rul'd  in  one  Bulhell's  Cafe.  And  in  one  Milbray's  Cafe. 

13.  In  anv  Plea  in  the  Spiritual  Court,  n  here  a  Cufloni  is  alleg'd  and 
denied,  a  Prohibition  fliall  be  granted.   Per  Jones.   Lat.  48.     Anon. 

14.  The  Count  on  a  Prohibition  was,  That  all  Cu/loms  are  triable  at  ThcCnurt 
Common  Law,  and  that  the  Defendant  libelled  againft  him  in  the  Eccle-  ^{:^^'y"' 
liaftical  Court,  Ihewing  That  all  Farmers  of  fuch  a  Farm  have  ufed  to  K'"t'hatthe 

Ji'nd  Cakes  and  vile  at  the  *  Perambulation  of  the  Parilh,  to  the  Falue  cfSs.  Ouilom  wa,s 
atit  CO  circitcr  ;  and  averr'd.  That  there  is  no  fuch  Cufhin^  and  that  he  al-  go"d  ;  B"<: 
leg'd  fo  in  the  Spiritual  Court,  but  they  refufed  the  Plea.  The  Defend-  l^^'!™^"^' 
ant  pleaded y  That  there  is  fuch  a  Cu/fam  Upon  which  the  Plaincilf  de-  '1  ,Vs."c. 
murr'd.  Adjudg'd,  That  no  Confultation  Ihall  go  i  lor  tiie  Culloni  in  —  But  at. 
Farmers  is  no  more  than  a  Prefcription  in  f  Occupiers,  which,  according  tcrwards  Ek- 
to  (giritdUrilp'S'  Cafe,  is  not  good  in  Matters  of  Charge  on  the  Land.  2  ^  j^^;""^^^: 
Lev.  163.  Hill.  27  c?c  28  Car.  2.   B.  R.  ^^'elby  v.  Herbert.  this p'rcicr'ip- 

tio'i  by  a  Pa- 
rifh  for  a  PfcfitJppm.drc  \^  void,  and  the  Value  being  certain  or  nor  n  not  material,  tho'  Fationc  ter.ura: 
a  Man  nay  be  bound  to  fuch  a  Charge,  yet  not  bv  bare  Pretription ;  fur  here  none  tan  icleafe  tliis 
Chavj;e,  neither  Parfon  nor  Cliurchwardens ;  And  thi.s' is  not  like  an  Eafcnient  of  R'lliiip  at  fuch  a 
Koule  or  Pulling  up  a  Hedge  ;  which  tic  Court  agreed  ;  this  beir.g  origi'ial'v  a  Kiniincts,  like  the 
Lord  Carlifle's  Veni'bn  Pally  to  the  Judi^cs  in  the  Cucuit,  and  Lord  Ik'dfoid's  \Vi"c  and  Cike.s.     And 


to  bring  it  in  as  a  CAiftom  would  dcftroy  all  Civility,  and  ii  is  a  Prtfcript; 
for  aCorody;  And  Judginc:::  for  the  Plaintiff  in  the  Prohibition.     3  Kc 


ion  for  ai  Intcr.lt  as  much  as 


b,  6c  y.  .S.C. 
B  '  ♦In 


558 


Prohibition. 


j-  Scc(OJcapicr) 


It  IS  no  cer-  i  5.  A.  procured  a  mil  out  of  the  Prerogative  Court,  and  gave  Bond,  with 
ti'TtaThiP"  Condition  torcdchvcr  it  by  fuch  a  Dav,  but  he  not  doing  it,  the  Spiritual 
ti-i.ibleat  "  Court  _  proceeded  agamlt  him  Pro  L^eftone  Fidci,  and  to  have  the  Will 
Law  is  not  again  into  Court ;  The  Detendant  pleaded  his  having  given  Bond,  and 
triable  in  that  a  proper  Remedy  lay  thereupon ;  but  the  Court  rejecting  that  Plea, 
ilbn^Vky'-  \  '^°''^;^  ^'^'■'^  Prohibition;  But  it  v\as  objeacd,  That  the  W'itnefs  to 
ing  Violent  ^"'^  ^^nd  Was  dead,  and  probably,  \i  put  in  Suir,  they  might  not  re- 
Hands  on  a  co\cr3  beiides,  the  Penalty  might  fall  fliort  of  the  J)amages  lultaincd  by 
CleH<,  a  thofe  interefted  in  the  Lands  conveyed  bv  this  Will,  by  not  havino-  it 
PreStion  FO^^^ed,  fo  that  a  Powef  to  infbrce  the  bringing  it  in  Icems  necelLiry  ^ 
&c. ;  £ev.  -Bel ides  that,  it  is  in  the  Party's  Eleftion  either  to  put  the  Bond  in  Suit, 
•  - '■  or  to  (ue  in  the  Spiritual  Court.  The  Court  inclined  to  grant  a  Prohibi- 
tion. 8  Mod.  327  Mich.  11.  Geo.  i.    Cuband  v.  Dewsbury. 


1  ■; .  in  Gate 
of  Ciandeii 
V.  VValden. 


(Fj  Jmifdut'ion  Sp'intiuiJ.    Jurifdiclion  o/^//y  Th'iw. 
I-  T£5,  tic  Sineire  partionatuv,  fci*  ruins  in  Court  CDriflian  de 

If  one  rues  ,  J^  Caltris  Villis  Maneriis  &c.  &  aliis  Laicis  Keodis  c^  Placitum  in- 
anorhei-  in  "e  profequi  prxfumendo  in  Enervationem  Juris  noltri  Regii  &  exhsreda- 
the  Spiritual  tionem  Coronas  noltr3e&  Subveriioneni  Stat.  Re^ni    no'lri   mani- 

court rr a  feftam.  3 1  e,  3.  Rotl^atGiitium  $ confimilc.  ^.  u.'^ib.  ®!  12.  Cou= 
I'hlcJ  is'    ft""lc  4  €,  2.  Hot  ij?at  ^.6. 

fenf  himSrFN  %^'^olsf  ^^^^  '  ^''°'^'^'"°"  t°  '^'^  Court,  and  may  have  another  Writ  to  the 

2.  ^irrorof3'umcc0,fol27.cnp,2.©.  13,  ijccaufc  Ijc  fjclti  Blea 

agamlt  the  Delence  [Pl'OijimtlOn]  ot  the  King,  and  in  Preiudice  of  the 
i^ignity  ot  his  Crown,  fot  a0  UUlCl)  aS  It  tiClCngS  tU  HO  luDiTC  eCCi£= 
fhlftlCal  to  Jom  aicap  fCCUlar  pica,    CrCCpt  of  Teltament   and  Ma- 

,,.  ,,.      "'"'»">: mproumccottljcl^^oujcr of  tijciamiT. 

Jnc''svo°'"\,^*  J  aa>in  bcaDuuttcti,  inftirutcD,  anB  intmctcD  to  a  Cijurcfi, 

;"  caJ..r.«"?»«^'^Jj2isiruedm  tuc  spiritual  Court  for  the  Jnititutio;;rmn: 

cues  S.  C-  poring  It  not  to  lie  goon,  ant)  fo  to  have  it  to  be  defeated,  a  I5rnhjfufu  n 

An  incunp-  fljaii  bc  LTtantcti ,  Ooccattfc  bp  tijc  Jnourtion,  tijc  puron  l^^s  ti  c 
ftituteTbv""  ^'^"i9  ^  ^  iJ^^lzz.  anu  tljcrcare  tije  Coinnion  laiu  fi  aij  V  ml 
ISvlca'''  Sfl^/5/^5-^  Spiritual Lau),  aiiDfijall  tiraui  dje  Cra  of  die 
General,  and  pijole  to  It ;  lot  otljcnuiic  bp  [tfjlsj  31!  ^\mt  3impcDits  mm  bci 
afterward,    bcrtljroiun ,  JT Or  bp  toig  ^can^  tijei'  map  trp  all  Rmijts'  of  Sn-on^ 

.vards  the    Stantcli  ui  ciic  \uijon  0  Cafe  accoriinifflp.  Dili.  15  Ja.  05.  E.  bctiucat 

Bifhopcon-  Hitchin  and  Glover,  JKCfOlbeQ,  pCt  tOtaUl  CUtiaUU 

terted  this  in 

the  Spiritual  Court  in  Ireland  ;  But  upon  a  Writ  of  Error  brouc^ht  Here,  it  w-s  ar-reed  nv  H„lr  n  t 
Powell  Po.v,s  and  Gould  J.  That  after  fuch  Induction,  whij.  is  4d  De  S  ^'Ve  'nni  u  ion 
fl>all  notbecomroverted  in  theSpiritual  Court,  and  fo  revcrfed  a  Tudgmcnt  K^cn  in  I  '  fand  hX^ 
Kep.  599-  to  605.  Hill.  4.  &  Trin.  5  Annce  Gibbons  v.  Bifhop  of  CloyK"  &  f  contra"  '  ' 

?6^' ^'"^' r^4.  $^(cl).  15 Car.  ^^.'B..Mmm\\Phif.ps  and Hayter,  uct CuniTn? 
.stcvensv.    Proliijition txrnntcri for  tlje C!ntrci)ofCuifont€b!ns  n ticCo  i tp 

"^■^  "h  ^\?-^'  ^^^^^^  ^^^^  ?"^f  ^"^^^  i"  tl^f  ^"^i^f ^'^^S  after  InduSon  tV  avo  I 
^^in"^      J^,'i    »il"^;"'  toUfCtljClnmtUriCUUiaS  made  after  a  Caveat   C'l- 

Lo;;"cafc.  f'^^^^^  ncttoinmtute  ac.  jFortins  5oc0  not  maKc  tlje  inflsturfoa 


Prohibition.  559 


Ijoiti  in  one  Liiia*  Oubart'.ei  Urpnitjj.  22.  Hattou's  €n^c*  JiJroljtlJition  ^  p^  siw. 

in  the  Cafe  of  Cl.irk  v.  Andrews,  cites  Hob.  i  5.  Sir  Timotliy  Hutton'sCafc. 

5.  If  a  ii9iin  lie  anmittcti,  JnaitutcD,  ann  Jntiiictcti  to  a  Clnsrcl),  w^f^  comp. 

nun  attCl*  IjC  is?  depri\cd,_becHui"e  he  vvus  inltituied  againlt  the  Couilc  ot'^"^'  *^''": 
the  Ecclelialtical  Law  ;  '(1^1)10  !0  a  UOiD  ^CUteUCC  Ot'Dcpi'iliatian,   bt-  cites "c  ''* 

caufc  it  10  naiu  a  lap  jfec  liy  JntmctiQiu  r^i!!,  15,  :ja,  Q5»  E.  au= 

)UDl1;CD  bCtmCCil  Hitching  and  Glover. 

6'  35  e.  I  lACt.  PiUcntium  Q3enibrnna»  25.  ciimlD^'B^  ntcp^ 

ttIS  fUlt  POflCtTlOncm  Thelliui arise  in  Ecclelia  licati  f^Ctd  €bOrUni, 

upon  Colhuion  ot'the  Kin^  bv  Judi2;menc  in  the  Kin<2;'s  Court,  iintl  l)C  !-3 

noU)  cmiir'ocn  III  ijiS  poiMion  bi)  Citations  ano  iSppcaf^,  Bos  W- 
Ic!itc0  3ura  noftra  prieoirta,  s  JiiDtcia  In  Curia  noftra  Kite  retirsita 
III  omnlbugniauutcnctc  liolns  *  luanrianius,  qtiot)  mrfiim  Clcncura 
in  pcflclTionc  nuinutcncatiss  a  ft  qm  pro'oocationcp,  Cirntionce, 
^ppcllationcEi,  aiit  afta  S^iiipctsinicnta  intcrponcrc  pu-ftimpfrnnt,  pci* 
tiua;  fjc.  tunc  CO0  antlfaic  5  lu  pttfona  cullotsirc  facuitiG  Bcnci: 
nliuti  $c» 

7-  3it  a  Town  erects  a  Common  School,  and   s;ives    Allowance  to  a  A  Prohibit 
Schoolmafter,  tfjC 'BtfijCp  CaiUlOt  remove  flje  ^CfjOOlmauCr,  antl  pUt ''"•' 7' 

in  anotl)ci-  at  Ijis  I3lcarurc;  15W:  it  Ijc  be  a  Recuiant  jje  mai)  rcmo^je  fhe'com' 
ijim  bi)tljc€>tritutcof2  3  ei.  cap.  i.  ^.  13.  ja.  15.  '^l)t  X^tnjap  urmin-uyor- 
Cariitie'is  Cafe,   per  Cunanu  the  Arch- 

deacon  of 
V.  ichmond  to  (lay  a  Suit  againft  a  Schoolirnrter  for  te.ichit:?  Sdool  without  the  Licence  of  t'le  Hifh.op,  Pro'. 
liibition  was  granted,  becaule   xhzy  etideaz-otired  to  turn  him  out,  'vvhereas   they   can   only  cenJiire    iinj 
becaufe he  coires  in  by  the Prelentation  of  the  F"ou;ider.   i  Vent.   41    Mich.  21    (^ar.    2.   B  R.    I66y. 
Bate's  Cafe.  —  Mod.  ;.  pi.  11.  Jilich  21  Car.  2.  Bayle'sCafc  S.  P.  to  the  Kcclcliaftical  Court  at  Chciter, 

and  the  Prohibition  denied.  There  was  a  Libel  in  the  Spiritual  Court  a/rain/l-  Wood,  a  School- 

>,>»/7/?€)- and  Redtor ;  .4i?d  a  Prchihificji  v,M ^(^ratiiecl  as  to  tie  Exaniiu.itioti  of  ^n)'  Mutters  re'.atin'^  to  tie 
Ofue  of  Schoolmaftcr  ;  For  when  the  Bifnop  hath  once  granted  his  Licence,  lie  has  executed  his  Au- 
thority (efi-eci.iily  in  this  Cafe  where  the  School  is  of  th.e  Fj/andation  ofC1i.ieen  Elizabeth,  and  the  Ki"o-'ij 
Chancellor  is  Yiritor)  Imf  tley  n?tty  proceed  irpm  the- y'/rt n/e  affciivf}  lim  jor  being  dri:)ik  &i.c.  which  is 
Centra  bonos  Mores.  Comb.  ;24.  P'alch.  -  Will.  :.  B.  R.  Woodv.HilL 


8.  S^fAdminiltracion  be   granted  to  A.  tUijetC  it  OUaljt  lUt  tO   bC  A' to  Ac- 
grailtCQ  to  IjlUl,  ant!  after  tljC  atiaunillratldll  is    repealed  and  grant-  ^'^"^'V"  ?''* 
ed  to  B.  brcaUfeije  I£>  nCCt  of  t\in,  B.  may  lue  A.  in  the  EcclelialH-  eiUWcs' 
cal  Ct)urt,  to  account  for  the  Prorits  Of  tljC  C!)attCid  Of  tIjS  '^CilatOU  See  Ecele- 

uurituT  10  Ctuic,  ant)  no  proljibttton  tijail  be  ixraiiten  i  jfoc  15.  fi^rt'^-^i 
cannot  ijalic  uction  of  Crcfpafs  ao,auui  3.  nor  Ijas  am  Rtmtiiv  fjr  ^"•■^"• 
tljcm  at  tijE  Common  Lau).  I'nlU  ijl.a.  03.  ilv  larijuogcD  l:cta)ccii 
i©acfu)0it!)  I'liiQ  eintsrcuj^. 

9-  i~,inij  D.4-  confirmed  a  Church  tUljiCl)  U-ad  incorporated  bCfCrC  IVJ 

tije  j!5anie  ofCufio^  $  CoUctxtum  uitbe  Dtnrcfs  of  Ccctcr,  and  or- 
dained certain  Number  otSino,ing-men,  m  \l\\]K\)  lUCtC  fOillC  ©pintaril 

antj  fouic  lap.   d;e  Dean  anD  Cljaptcr,  luito  t'm  x^iiljap,  abnd^vi 
the  Number  t'o  24  lu  all,  auu  afrcv  to  16,  4  '^pirttua!  aiiD  12  inp, 

and  now  thev  will  add  2  mCtC  tO  tl]C  BUUlbCt  Of  ^intUal  ^iJCii,  bP 

tr-incl)  tl;cir  lili(nij3  fliaU  bcUfs,  I'ct  no  laroliibttiou  fiiad  be  ui-arucn', 
btcaufc  It  appears  tljat  tbe  Bumber  luad  ixrcuter,  ann  after  niaQc 
lefSv  p.  8  3a.  13.  per  Curiam,  betiuecn  I©itbcr5  auti  Oiuen.         Br.  ju-i'-dic^ 
10.  jf  a  ^131^  rue0  in  tijc  gipiuicual  Court  far  Perjury,  ujijcre  tlje  t^'s  p'^^o. 

Principal,  upon  which,  Ot  fOriUl)lClj  the(j,ith  was  made,  does  not  touch,  c'tes^  a. 
nor  is  Spiritual  Matter,  Of  tUijlCl)  tljC  gipitltUul  COUtt  OUljIjt  tO  IjaUC  Perjurv  be 

3:uri.5titcticn,  proljibition  iic0.   2  d.  4. 10.  comnutted 

in  the  Spi'ii 
tual  Court  in  a  Caufe  of  Matrimony,  Tithes,  Teftament,  or  Legacy,  or  of  a-.y  other  Thing  of  which 
the  Conufance  belongs  to  their  JurildiAion,  that  Court  fliall  have  jurifdiction  in  fuch  C'ale  of  Penury, 
and  no  Prohibition  lies  ;  But  it  is  othcrwilc  where  the  Perjury  concerns  a  Temporal  Matter  By  all  tlie 
Judgesnf  both  Benches.  Jenk  1S4.  Cafe  "6. 

Note,  bv  if  a  Afaji  buys  a  Horfe  of  me,  and  [wears  upon  the  Evanrelilf  toJ:^y  10  /.  ftr  htm  at 

fuih  .1  D.-.y,  and  hedtes  tot  p.iy,  I  fhall  have  Debt  at  Common  Law,  aiui  Quition  Pro  Ixlione  Fidci  .ic 

tbo 


£^5o  Prohibition. 


Tui-ifdic- 
poii 
make 


tl^s'piiitlwl  Law,  for  thcfe  arc   divcrfe  Things,  and  it  docs  not  oftend  the  Common  Law.  Bi-.  Tunfc 

non    nl    -^  cites  -4  H   6    -o. But  lee  22  £.  4.  iS.  and  2  H  4.  to.  Contra  there  •,bc-c.iii(e  it  anfes  u 

I  av  1m'  t'tcr      But  Quarc  if  it  he  taken  there,   that  he  Ihall  not  have  Suit  m  Court  Spiritual  to  ni 
him  hold  his  Bargai..,  or  to  punlHi  the  Perjury.     Br.  Ibid See  (D)  pi.  4- 

Br  Jurirdic-       1 1    As  if  a   St^an   makes  Oath  to  pav  Debts,  or  make  FcofFment,  if 

tion,  p!  2c.  hj;  ijc  fttc5  iix  ti)f  g^piritufll  court  for  tlje  ^^rc^cl)  of  tne  DAti),  Wto- 
cites  2  H  4  i,i(jit-jou  !ic0i  jfor  otljeriuifc  Ijc  fljnii  lie  ^ompcllcn  tfjcrc  to  perform 
cites  .1 R  4.  iJis  ©atlj,  nnn  fo  law  Contracts  fija«  be  uctevuuaco  in  Court 
85 — Br.    cijriftian.  2.  ip*  4. 10.  b^. 

Prohibition,  ,,     n     ■   i  •  •  \  ■  tt 

pi  2  cites  2  H.  4^  lo,  accordingly,  but  ;4  H  6.  -o.  contra. Br.  Prohibition,  p..   4,  cues  2  H.  4, 

9.- PI.  8.  cites  38  H  6.  29— PI.  iS,  cites  11  H.  4.  SS.— PI.  9  cues  12  H.  7.  24. 

12.  Contra  22  M.   To.  X=5ttt  tlje  ©ttitniUP  CnUUOt  injuin  fjim  tO 
OaP  tbC  2!)Cbt,  but  to  [OO]  Penance. 

13.  l;>,  2.  artinuic5,  tJjatit  fljou!Tinot  be  lateful  for  a^^uljopta 

pUninj  nnp  C^an  llir  Perjmv  or  Breach  ot  Fai-h.      ^pCCtl  45^.  tl« 
14  if  a^an  promiie  mHOtljCr  to  pay  Debts,  ortO  make  a  Fcotiment, 

nnti  coess  not  pciiorm  tt,  tlic  ©rliuiarp  map  €x  €>fficio  cite  Ijini  foe 
oarcadj of !jt^ if astlj,  anti  amarB ijimto Penance. 
15.  15  c.  3.  cap*  6.  It  10  accorDcB,  tijat  tije  C|5niiacr.d  of  fpolu 

CbUrCll  for  ^OntV  taUcn  for  Redemption  ot  corporal  I'enance,  nOC 
for  Proof  or  'Account  of  Tellaments,  Ot   fOr  ©ralJaii  tai^CU  fOt  t&C 

fame,  nor  for  s^olcmnitp  of  Marriage,  nor  for  otijcr  Cijimjgi  touclj" 
im  tl)c  jurtsoirtion  of  m\^  Cljurcij,  (Ijall  not  be  inipracijcn,  ar- 
tcfteo,  i^or  oriuen  to  anUucr  before  rlje  mm'^  Jtifficeo  $c.  But  this 

was  alter  repealed  Ut  tbC  faUlC  ]^ear»   i  S  €.  3-  Cap.  6. 

s.p.  T^Rep  16.  c^  prefcription  cauuot  be  tritB  ux  t\)t  Ccclcfiafrical  Court,  be= 
40.  Trin  -  f^.jQ,  j{.  (mgijt  fQ  ]y^  tried  by  Jury  iuljic!)  caiiuot  bctijete*  :jn  Cimc 

tac.  in  the       ^c  ,r- 
(JaCe  of  Mo   of  €♦   I- 

di' Jjpfe  as:a:rtfl  a  P.irfm,  and  made  Ills  Plahit  of  n  Hcvfe  ;  the  Parfcn  f.^iJ,   that  he  is  Parf^  cf  P. 

and  tbnt  -t  has  been  Parcel  ef  his  Church  'time  out  of  MM  &c.  anA  then  has  been  Sepulture  oj  dead  Bodies  ; 
Tudgment,  if  the  Court  will  take  Cognizance;  and  after  the  Defendant,  by  Agreemjnr,  pleaded  to 
the  AiTile;  (^ua;re  ;  For  per  Perfey,    the  Court  ought  not  to  take  Cognuance.  Br.  Jurifdiction,  pi.  ;!. 

Whether  the  Proprietors  of  a  MefTuage,  called  the  Priory,  have  T'lme  out  of  Mind  repaired  the  Chancel, 
may  be  tried  and  determined  in  the  Spiritual  Court  as  well  as  a  Modus  Decimandi;  and  though  the  Par- 
fon  is  of  Common  Rlgln  to  repair  the  Chancel,  yet  it  may  be  on  a  particular  Aran's  Efface  by  Prelcnp- 
tion    2  Vent  259.  Mich.  2  W.  6c  M.  C  B    Williams  v.  Bond. 

Libel  fet  forth  a  Prefcription  for  the  Hear  of  the  Parifi  of  M.  to  f.nd  a  Parfon  to  opciate  in  the  Chapel  of 
G  bciiicr  an  ancient  Cliapel  withw  the  f aid  Parljh  for  the  E.ik  of  the  Parlfluoners,  i„  Covjlderation  ivhereof 
the  Pau\hioners  Time  &c.  paid  him  and  PrcdectfTors  two  Quarters  oj  IFheat,  and  two  of  Malt  yearly  ;  Upon 
Sut-felfionofNo  fuch  Prefcription,  Prohibition  was  moved  for.  And  it  was  agreed  by  all,  that  the 
Things  bcippby  ?.-f/c-i;*;/OT,  which  properly  is  triable  at  Common  Law,  did  }:ot  /i ,'■:;•« u  fufficc  zo  cufi 
the  Sp:r'tual  Court  oi  Jurifdidiion  ;  As  if  a  Perflcn  be  by  Prefcription,  though  one  may  bring  Annuity 
for  it  at  Common  LaW,  yet  they  may  libel  for  it  in  the  Spiritual  Court  upon  the  Prclcriotion;  and 
cited  P^  N  B  51.  HoltCh.  J  faid  it  is  the  very  Point  adjudged  in  SU'.llianiS'sr  Cafe,  5  Co.  72.  for  it 
is  an  Ecclefiaftical  Duty,  to  be  performed  for  the  Advantage  of  the  Panniioneis  ;  and  though  it  com- 
mences by  Prefcription,  ytxilccrcerns  Eiclefiafiical  Perfcns,  and  is  a  mere  Spiritual  Thir.g  ;  and  is  not 
at  all  the  fame  as  if  it  were  againff  a  Layman,  who  is  not  loeafily  bound  by  Cmon  Law  as  Ecclefi- 
aflical  Perfons  are  ;  for  their  Proceedings  there  by  Prefcription  fhall  not  charge  a  Layman,  or  any 
Temporal  Right.     ,2  Mod.  404,  405- Trin_^i^  W-  ^  B  R  „^f  "<=/•  >"«■  .         ,        ■      ,. 

Though  Prefcription,  as  whether  d.  whole  Parish  or  afeUa  I  eflry  fwild  chufe  Churclmiardevs,  is  a  Mat- 
ter triable  at  Common  Law,  yet  Sentence  is  to  be  given  in  the  Spiritual  Court  according  to  their  Vcr- 
dift.     Agreed  on  a  Motion  for  a  Prohibition.     10  Mod.  12.  Mich.  9.  Ann.  B.  R.  Banilfer  v.  Hopton. 

See  CM)  pi.  17.  ^  Barfon  map  fue  in  tijc  spiritual  Court  for  a  Modus  Deci- 
^Tv7~,^a%mandi,  auD  uo  proljibition  Hjallbe  o:rantc5  ;  iforitisiJniSatureof 

^s"p  V- Cl'tllCjS*  €0.  II.  Doctor  Grant.  16.     90V  RCPOrt?  14  J'a*  Go/hn  and 

f^s^jC^* Harden,  [pct]  Curiatti*  J^obatt'ss KcpcttiSj Catc  314-  bctuseai #cot 
*Foi.2S4  ant!i©alU 

\vCK"^in  Cafe  of    Williams  v.  Bond. He  may  fue  in  the  Spiritual  Court  ProJlodoDenmavdi ; 

biu  if  he  lues  for  Tithes  in  Kind,  (which  by  a  Modus  Decimandi  are  utterly   ei^tinft,  and^the^Land 


Prohibition. 


561 


difcharg'd  of  them)  then  upon  a  Plea  Dc  JLilo  Decimandi  a  Prohibition   lie*,  i  ;  Rep.    44.  Trin.  7  ]xc 
in  the  Calc  of  Modus  IJecini.mdi. 

It  v.as  relblved,  that  the  Paifbn  might  fue  for  Modus  Decimandi  in  the  Spiritual  Court,  and  cited 
a  R.  5.  5.  a.  But  if  tie  Farijhior.er  denies  ;7,  that  they  ought  to  I'urcealc,  and  a  Prohibition  lies;  and 
it  fliall  be  tried  at  the  Common  Law.  Noy .  Si.Stcv/ard's  Cafe. 

18.  So  if  tljC  ^SarfOU  prefcnbes  tO  IjtIliC  Cltl^S  of  Things  not  tith-  For  this 
able,  as  ol  Rents  ot  Heules,  \)t  nuip  fuc  fOC  It  III  tijC  ©ptrltlial  COllCt,  '"jg'';  '>''''= 

nnti  no  pioljibition  lied,  pet  no  Cpttjcsi  He  Jute  mm  to  hz  paiQ  of  comm-nce- 
tljcnu   Co.  II.  Doctor  &v..'//^  i6.  ment,  b=- 

caiifc  It 
might  be,  that  this  Modus  Decimandi  had  been  paid  Time  out  of  Mind  for  all  the  Tithes  of  the  Land  , 
wliereupon  the  Houfes  are  built ;  And  though  this  Land  was  afterwards  built  upon,  this  fliall  not  take 
away  the  Right  of  the  ParCon  in  this  Cafe,  and  11  nee  it  mivht  have  a  Lvwjitl  Commencement,  and  th.tt 
it  had  bee?!  Time  cut  of  AJind,  it  was  for  this  Reifon  rcfolved,  that  Confultation  fhould  be  granted  ;  And 
that  he  might  lue  for  this  Money  in  Court  Chrillian,  becaule  it  is  in  the  Nature  ot  Titles^  viz.  a  Modus 
Decimandi ;  .^nd  every  ancient  Cicy  and  Borough  has  for  the  molf  part  fuch  Cuftom  of  a  Modus  Deci- 
mandi for  tlieir  Houfcs,  for  the  ISIaintcnance  of  their  Paifon.  And  a  Confultation  was  granted,  u 
Rep.  \6.  a.  b.  S.  C 

19-  ®o  !)e  map  fue  in  tIjc  spiritual  Court  for  Tithes  of  Great  see  oifmes 
Trees  \Dijici)  ijc  cianu0  bv  Prekripcion,  nnn  Jio  proljibitiou  \\z%  pet  \tl^*J\ 
tie  lure  iDEv  arc  not  titDabie,   fiduaere.  9  i;).  6.  *  46.  this  fimuid 

be  56.  tlis 
S.  P.  being   there  at  pi.  41.  in  the  Year-BoaJ^. 

26.  ^0  \)t  map  fue  tijcrc  for  a  Modus  of  tlie  Tithes  of  Filh  ta^CH  ^se  (U)  pi. 

iw  ijfianii,  anti  broimOt  into  tljc  '2Cauin  tofjcce  $ c.  (pet  no  Citlicg  Oz  i^BT ^,):- 

Jure  arc  Que  tijereot  ajs  it  TccniiEiO  S0p  Eeportss,  h  3^a.  0oflin  auo  z s  c  * 

iparticn.  Rou  Rep. 

1 19   and  it 
was  upon  a  Cuflom  in  Yarmouth  ;  But  becaafe  the  Spiritual  Court  had   rejefted  the  Proof  of  another 
IModus  differing  from  that  which  the  Plaintifl  had  alleg'd,  a    Prohibition  w-is  granted;  and  at  another 
Day  a  Prohibition    was  granted  by   MouiTagtie  Ch    J     [who  was  made  Ch.  J.  after  the  former  Prohi- 
bition granted]   and  all  the  Court,   becaufe  he  miftook  his  Modus. 

21.  If  tf)cre  lie  a  Cuftom,  tijat  after  tIjc  Grafs  isi  cut  anti  ret  in  And^i^o^gf^ 
«©rafs  Coci^.0,  toe  lot^  Cocufljalllic  amgncD  to  tijc  ]?arfon,  anti  ;;;",^'^,'^°'J 

t!)at  f)S  bP  tije  Cuff  out  fljail  have  lawful  Authority    to  make   it  into  ^^d  it"^  was* 
Hay  upon  the  Land,   if  tlje  ©lUUCr  Of  tljC  Lailtl  dillurbs  him  tO  DO  ttj  faid,  that 

ije  map  fuc  for  t\)\^  in  ttjc  ^pirituai  Court,  ann  no  proljiuition  '-^reby  the 
fl)ali  ye  granten ;  Jfor  it  is  incident  to  the  Cmtom  to  conic  tljcrc  to  [;"' ]TL 
make  It  into  (pap.  a^iclj.  h  'M*  13.  Ecpnoinsi  aim  jQciuburp.         altered,  .and 

that  they 
ought  to  be  tried  bv  the  Common  Lnw,  vet  the  Court  would  not  grant  a  Prohibition  ;  But  [the   i5ook 
fay.s,]  it  feems  that  they  did  not  intend  this,  for  they  did  not  fpe.ikofit;  But   VVirburtou  leemed   [of 
Opinion]  that  it  wa^'  an  unreafonablc  Cullom.  Roll.  Rep.  420.  S.  C. 

22.  ci)e  proper  |3Iace  to  fue  for  a  Legacy,  is  \\\  tIjc  CccIcQafHicnl  sr.  jurir- 
Court ,  becaule  it  is  net  anp  Debt,  but  onip  Hue  bp  tlje  m\\l         '^'^^"?"'  ?'- 

H.  6.C)   per  Afhton. J.  S.  libels  in  the  Confi (lory- Court  of  the  Bifhop  of  Exeter  againif  C.  and 

D.  Sifters  to  B.  and  Executors  of  his  l.ill  \N\\\,for  a  Legacy  left  &c.  they  fk.tded  No  .-Jjlets,  arid 
viade  ,1  fpecial  -^'lleZ'^''""-'  f''"'  ^-  their  Father 'xas  fojfrjfed  of  fezernl  Icncr  Let^fes  in  f-veral  Tenements,  and 
dezifid  them  to  B-  his  Son  ;  but  if  hejhoiild  die  unmarried,  oi-  if  he  Jhould  t?i.trry  and  die  without  Ijfne,  then  C. 
and  D  his  tzvo  D.'tu;i!:ters  to  •ha've  thofe  Leaj'es  &c.  and  that  B.  dying  ivilhout  fjfiie,  they  claim  as  Deziifees 
ef  J.  their  Fat!  er,  and  not  as  Evecutors  of^  B.  their  Brother  ;  and  rlie  Court  there  over-ruled  itiis  Plea 
of  theirs  ;  and  a  Prohibition  was  granted  ,  becaufe  it  is  Matter  of  Title  witii  which  th^-y  ought  not  to 
meddle.     2  Show.  50.  pi.  55  Pafch.  51  Car.  t   B  R.  Ballard  v.  Stockv/cll. 

23.  3if  A.  gives  B.  5  Marks,  and  he  dcvifes  bP  UBil!,  that  whereas  lie  ^V.  on  his 
owes  B.  five  Mai ks,  his  Executor  Ihail   make'uiol.    tljC  @)Uit  fOC '^'Y'IvP 

tl3!S  10 1,  map  be  in  tbc  Cctlefiafitrai  Court ;  ifor  tfjis  is  not  anP  ^^^Ind^ith 
dtinition  to  tljc  5  f'Oarlis,  but  a  j;lcu)  ^um  iTiuen  in  Satistknion  of  /  s.  to  pay 
tl)c  5  93ailis. a!iD  10  no  |i>avt  of  tUc  lo  i.  not  anp  Debt  but  onlP  a  lLc=  -'  l^-  "'"< c 


562 


1 


.ohibitjon. 


hismu's    gncp*  9^,  22*  ja,  CId.  K*  betuiecn  churiy  afidHioJ,  ijjroljibition  lic= 

10  /.  at  tlicii-  refpctlivc  of  Age:  of  21  Years,  and  gave  Bond  for  his  Ptrformnnce  of  this  Covenant.  Af- 
terwards ho  iieiijeii  to  tlic  lame  A.  b  and  C  10  /.  a-J^ieieto  be  f.iici  them  at  theii-  Jrvcr.il  -ir-js  oj  zi  Tears 
tti  Ptr\ormaiHe  0^  hii  licrA  arJ  Covnuxnt\v\\\rM.%t:\\A\'l,  mj-Ai  \iX  his  Mani.ija-,  and  i.ot  othervvife,  and 
died.  A.  and  B.  filed  in  tlie  Spiritvial  Court  for  their  Legacies.  TheCourt  at  firft  irclincd  to  grant  a 
Conluk.itior,  beeaute  they  were  ail  Strurgers  to  tl-.c  Cover. ant,  but  it  being  moved  inarotlier  'i'crm,  the 
Court  doubted,  hci.,.u(c  it  was  not  given  as  a  Legacy,  but  in  Pcifuimance  of  tiie  Covenant,  and  not  o- 
therwii'c  ;  AtcI  Anderlon  and  Khodcs  laid  precilely,  That  a  Confultation  Ihould  not  be  granted,  but 
the  otl^crs  hifitutcd,  and  at  lafl  they  compounded  the  INhtter.  Goldsb  5S.  pi.  i^.Trin.  29  Jiliy,.  Peirce 
V.  Davy~2Le.  i  19.  pi.  164.  Mich,  29  Sc  ;o  Kli?..  S.C.  by  Name  cf^laDlSb.  ^tU'Ii?,  I'ay.s  That  af- 
terw:;rds  the  Juftite.s  looked  avd  iidvifed  upon  the  Indenture,  and  fiiiamg  that  the  Deed  and  Obli'^aticn 
vcrem.ideto  the  Friend.s  of  the  Mo'her,  and  not  to  the  Daughters  themfelvcs,  to  whom  the  Legacies 
mere  bequeathed,  were  of  Opinion  that  a  Prohibition  did  not  he. 

If  the  Teilator  1  harges  lis  Executor's  to  pay  lis  Debts  to  his  Creditors,  the  Creditors  may  fue  them  in  tht 
^^;r//.v<T/ CcM)-/ on  Xon-payment,  and  a  Prohibition  fhall  not  be  granted  ;  ficcaufe  this  Charge  of  the 
Tedator  is  as  a  Dcvil'ero  !us  Creditors.  F.  N.  B.  44.  (B)  cites  H.  9  £  5.  Prohibition  i -.^S.  C.  cited  2 
Le.  120.  p).  164  by  thejuiiices;  but  AnderfonCii.  J.  utterly  denied  it  in  tlic  Cufeof  Davics  v.  Pcrcie. 

£4.  (p.  2.  omaincti,  Cljat  tijc  lattu,  or  tijc  Btitg,  or  ocljei;,  fljouia 

IjOlD  }31Ci1  Of  Churches  and  Tithes.  gTpefO  45--  13» 
Onedevifed       25.  It' il  ^iJU  devifes  a  Rent  oiit  ot  his  Stock  and  Houfe,  which  he 


at 
poffciTed  to  ]i)rof)iljitiou  ocnico* 

J  J, r  Lite,      ''  •         . 

and  a  Libel  w  as  for  this  Legacy,  it  was  fugf^edcd  fora  Prohibition  that  this  was  a  Legacy  out  of  Land. 
After  2  Motions,  the  Court  held.  That  no  Proliibitioii  Ihould  be  granted  ;  Becaufe  the  Rent  ifl'ued  cut 
of  a  Term,  which  was  aChattle,  and  is  teftamentary  by  the  Common  Law,  and  coniequently  the  Rent 

i.s  fo  too  ;  and  no  Piohibition  w;is  granted    Sid  2:9.  Pafch.    18  Car.  2.  B.  R.  Ramfey  v.  Rols. Lev. 

iSo.  ti.C  by  Kame  ofl^oCTf  tU  lAOCTr,  and  Windham  faid,  That  if  the  Term  itielf  had  been  deviiid, 
it  would  have  been  fuablc  for  there,  and  therefcre  the  Rentoutot  it  is  lilcewife,  but  Keeling  and  i'wif- 
den  doubtii'g,  they  did  not  then  grant  the  Prohibition,    but  order'd  Proceedings  to  ftay  till  the  other 

t>ide  be  heard. 2  Kcb.  5.  pi.  2  S.C   by  the  Name  of  Rumney  v   Rofli,  &  Ibid.  pag.  8.  pi   22.  S.  C. 

the  Court  denied  the  Prohibition  it  being  a  mere  Teftamentary  Legacy,  and  ro  more  than  a  Device  of 
i'o  much  Jtloney  out  of  Goods,  which  is  but  a  Direction,  How  it  fiiall  be  paid,  and  the  Rent  is  but  a 
Chattle,  and  goes  to  the  Executors. 

S  P.  becaufe      26.  Jf  3  (^ail  devlfes  a  Legacy  tO  mOtljtX  out  of  CCrtfittt  Land, 

not  within  ioijcrcof  Oe  iis  t'citeti  in  Fee,  anu  tljc  Ucliifcc  tiics  foe  t!)i0  m  m  %m^ 
fancc  z°""'  tual  Court,  a  proijilntlouUc^;  Jfor  tljtismucs  out  oftijctanD, 
Show  50.  anti  tijC  erecutor  fljall  not  ijalicani'  eifatc  m  tljc  LanQ,  till  tije  tz-- 
pi.  ^,6.  Ba-  gacpraircn  out  of  tljc  \dxom  (a0  toajs  OUjcftcQ  of  tije  otljcr  |5ait) 

c^''^/-  u     \i>*  15-  Ia»  15*  E»  Sifigkiou  and  Uade.  |5cr  CUtiaUU  p.  ?•  M*  K 

otockwcil. —  •■ 

But  w  here  A .  feilcd  in  Fee,  and  pollefled  of  a  Lea'e  foiYears  of  Lands  in  D.  for  diversYears  yet  lo  come, 
devifed  all  his  Lands  and  Leales  to  T.  his  Son  and  Heir  (whom  he  made  Executor)  exxepting  20  1. 
per  Annum  for  7  Years,  to  be  employed  in  this  Manner,  viz  ico  1.  to  his  Daughter  E.  to  be  p.;id 
•within  5  Years, and  :;o  1.  tohis  Daughter  E.  within ;  Years,  and  in  Anno  i6co  died,  and  T.  entered,  and 
took  the  Profits  as  well  of  the  one  as  the  other  for  the  7  Years,  and  died,  and  mr.ce  M.  his  Feme  (nr>-.v 
Wife  to  the  Defendant)  his  Executrix,  and  left  Aflists  unto  her,  whereupon  the  faid  E.  the  ycu""'er 
Daughter  fued  her  for  that  Legacy  of  50 1.  and  now  they  brought  a  Prohibition,  furmi/tng,  tiuit  this 
Legacy  being  out  of  the  Profits  of  Land,  no  Suit  could  be  in  the  Ecclefialticai  Court  for  it.  But  in  re- 
paid it  was  a  meer  pcrfonal  Legacy,  altho'  it  is  to  be  raifed  out  of  the  Profits  of  Land,  yet  beiiig  railed 
out  of  the  Leafe  for  Years  as  well  as  out  of  the  Land,  and  he  having  railed  it,  and  being  dead  without 
Payment,  there  being  no  Action  maintainable  tor  it  at  the  C'ommon  Law  by  Account  isgainl!-  his  Exe- 
cutors, or  otherwil'c,  it  is  therefore  Realbn  fliefhould  have  her  Remedy  in  the  Spiritual  Court ;  where- 
upon a  Confultation  was  awarded  by  all  the  Juftices  belldes  Williams,  who  doubted  thereof.  Cro.  J. 
a-9    pi. 9. Pafch.  9  Jac.tJ.R. 

If  a  Legacy  be  granted  out  of  Land,  this  fliall  not  be  fued  for  in  the  Spiritu  il  Court  ;  Rut  if  one  by 
AAill  de^ifes  Lands  to  he  fohi  ]or  Paynie):t  of  Debts  and  Legacies,  this  iliall  be  fued  for  in  the  Spiritual 
Court.  Per  tot.  Cur  Brownl.  52.  Anon. 

27-  3f  a  C^an  DctJifcd  a  certain  Legacy  to  a:tot!)cr,  and  chat  if  hfs 

Executor  has  notfufficient  tO  paP  It,  then  he  deviks  it  out  of  a  certain 
Houfe,  of  which  he  is  feifed  in  Fee,  the  which  dcfcend?  alfo  to  the  Ex- 
ecutor, ift!)C(!:.rci;utor!jaj5  uoti^.trctsofpcrrciia!  €'i'ar!5,  Ijc  cannot 

be 


Prohibition.  563 


be  fucD  for  tW  in  tl)c  S>pintiial  Court,  aispaDaWe  out  of  tijc  Doufe^ 
Cbecauic  It  ijnd  no  ^urifDimon  tijcrcof,  pafciC  15.  la,  Ts.E*  iAcrol= 
IJCD.  |i)a' Curiam,  \)ctmcm  sm^/don  a/n^  ivadc 

28.  jf  a  Q^anfcifcti  of  t.mti  in  jrec  makes  15.  W  Ccccutor,  nnn  sceAAcK.- 
bp  Dis  IJIMIII  ui  n^rituig  deviies  tliat  15.  nun  3  otljcrs  ihaii  idi  the  ^°:  f  |-j 

Laud,  and  thai  the  Monies  Ihall  be  diltributed  into  4  Pates,  lUllCrCOf  OllC  Ivirdt  v 

l^art  fljall  be  to  jf»(jc.  anti  Uiee,  nno  after  15.  m\  not  fell  tlje  lano,  gmvcs 
nnu  Jf*  fuejsbim  ui  ti)e  Court  COnttian,  a  ^^roljibitioii  iicSi  'Dccaufc  i*^  t:  ='<--com. 
If  It  be  aLetjacy,  j'ct  it  UVuefj  out  ot  Lanb,  ann  tlje  agonies  fl)aH!;i^V/"i 
not  be  Aiiets  ni  tije  imm  of  tlje  Crecutor.  Cr.  17-  Sa.  'B.  bctujeeu  r^^y^^^ 
Grc'.'vcs  and  Jd-juards,  per  Curuim,  auO  *  Confultatlou  5cnieo»  IpO'  ♦Fui  28,-. 
bart'js  Eeports  Cafe  h^-  (amc  Cafe.  ^-<v-^ 

appointed  to 
fpecial  Vl'ie.i  in  Way  of  aCoiift  of  Equity,  neither  can  they  hoM  Plea  of  a  Lc<;.icv  in  Equitv,  but 
w  here  it  is  a  Legacy  in  Law  in  Deed ;  For  they  muft  hold  Plea  by  their  Law  as  our  Courts  ot   Law  do. 

30.  3if  a  Q9an  fue0  in  tlje  Ccclefiaffical  Court  to  probe  a  Kuncu-  ^shnw.  11. 

pative  W'illot  L:uui  to  revoke  u  \\  ill  in  writing  thereol,  a  l^rObtbltlOlI  \  ^'  '^"f'* 

fijallbc  grantcD.  p.  14- 3a.  oe.  E.  %mvh  cafc.    l^roijibittou  ;u[f,  Tho- 
ijiantcii.  the  'suhjec- 

tiiw  cirta, 
cjtwdh^  fpiritual,  yet  if  the  Confe/jUejhc  be  a  Dercrmination  of  a  Thinj;  belonging  to  Common  L^w   Co- 
nufaiice,  a  Prohibition  will  go.- jS.  Li.  there  is  no  pi.  29.  in  Roll. 

31.  3lf  a  ^an,  pOirelfell  of  a  Lcafe  for  Years  HebifeiS  tljat  his  Execu-  A  M^n  hsv- 
torout  of  the  Profits. >t"  it  Ihall  pav  tO  ebCrP  OUC  Of  IjIS  DaiUTljter^  20  \.  '■^S  ■>  f--.?-^'/ 

at  tijcir  full  age,  tlje  Crecutor  inapbefueb  \\\  toe  Spiritual  Court  to  t\mo-aT-^ 
put  in  Surety  to  pay  tIjc  Icijaties.  aiiD  ^^toijibitiou  tijall  be  granted ,  z.-.,/./..'  ' 
Jfor  tljijj  16  to  iffuc  cut  of  a  Cljattle.  OilU  1 1.  3a.  '15.  Ida  Curiam.  ^^'•-".  '■^■'"f- 

PwZtvV  Cafe.  r>:AnU,n-c  ot 

ijcafe  was 
in  the  Flarids  of  a  Stranger;  The  Legatee  fvied  the  Executors  in  the  Sfhittial Court  to  alTent  to  the  Le- 
gacy ;  And  a  Prohibition  was  prayed,  becaufe  they  oider  that  the  Leafe  ll.ould  be  brought  into  Court, 
whicli  they  ought  not  to  h:ive  done,  being  in  the  Hands  of  a  Stranger;  But  the  Prohibiaon  was  denied 
by  the  whole  Court  ;  For  tliey  mry  make  an  Executor  affent  to  a  Le7,acy  cut  of  a  f^etrfe,  and  therefore 
fiiay  order,  that  tho'  the  Leafe  be  in  the  fJnnd  of  a  ■^d  Per/on,  that  it  fhall  be  Lnitrht  in  to  execute  it  ;  P^or 
the  Order,  although  it  be  general,  binds  only  the  Defendant.  War.  yd,  97.  pL  167.  Trin.  1 7  Car.  la 
C.  B.  Anor. 

32.  3if  a^aU  tCbife0,  that  his  EKecutor  flull  fell  CCrtatU  Land  afcet  A.devifed 
bis  DcatI),  ;ind  with  the  Monies,  fOU  lUblCl)  It  iSfOlD,  t!)at  bC  Ihill  pay  '}.''''^  ■'  f.. 

certain  legacies ;  Jf  Ijcfeils  tbc  Laiib  after  tbc  Dcato  of  tbe  'Wm--  iTiJd 
tor,  aub  tij:.^  legatees  fue  liim  in  tlje  €^pivitual  Court  for  tijofc  lcga=  ard  that  his 
cies,  a  l3rol.ibition  lies  ;  X'^ecaufc  tljofc  Legacies  lifac  cut  of  Lanb,  d  'ughter 
tobicb  IS  not  Uiiibrrabeir  Jurisbiction,  but  tbcir  Hemebi'  Ucs  inCbnn=  ^""^'"^  ''^;? 
ccrp.  p.  4  ?  5-  ^S^'  '51-5  bP tije  Juftices  of boti)  'Bcnci}C3.  Contra  ","e" m^oLv 
D.  9-  CI.  264.41.  Opinion,  i^.  14.  Car.  13. R.  betiuecn  i^^rjuyer  «;/'/ for  her  aci. 
u'bt/fkr,  a  proljibition  granteb  per  Curiam,  fjobart's  Reports,  vancement. 

Cafe  343  •  betUiCen  ^-Jd^Jrds  ami  Graces.  othefpa'rts 

toothers  in  certain  Sums,  and  died  ;  The  E^tecutol■s  fold,  but  reful-d  Payment  of  the  Legacies;  The 
Daughter  libelled  in  the  Court  ChrilHan.  It  was  the  Opinion  of  all  tlie  JulHces  of  both  Benches,  that 
a  Prohibition  well  lies  in  this  Cafe,  in  as  much  as  this  is  no:  a  Legacy  Tetfamentary,  but  out  of  Land, 
bv  reafon  of  the  VSill,  the  Perfo'-mance  whereof  the  Court  Chriftian  has  nothing  to  do  to  intermeddle 
^v  ith  ;  but  the  Party  may  have  Aftion  of  Account  at   the  Common  r-a>v.   D.  151.  b.  pi  5.  Mich.  4  &  5. 

P  6i  M.  .Anon. '■ S  C.  by  the  Name  of^afcllal    b.  ixCtlTUl)  accordingly,    Bendl.    60  tI.  104. 

And  there  is  a  Nota,  That  if  Teftator  in  fuch  Cale  devifes  I  is  Lands  to  his  Executors  (or  a  Term  tg 
lezy  a  certain  Sitm  cut  of  ihejawe  to  pay  it  to  the  Dcvifee,  yet  if  aficr  Sale  the  Dcvifce  lues   in  Court  {]hri- 

JHan  for  the  Legacy,  a  Prohibition  fliall  be  granted. D.  151.  b.  Marg  p'..  5   lays  that  in  Mich.  ;6. 

&  37.  Eliz,  B.  R .  it  was  lb  adjudged  in  Lord  Rich's  Cafe. 

3  3  In  tbc  ^'tatUte  of  2 1  H.  8.  cap.  5.  of  Probate  of  Teftaments,  tljCtC 
is  a  Provilii,  Tliat  ii  the  'leltator  de\  ifes  by  his  Will,  any  Land,  'I'ene- 
inent,  or  Hereditament  to  be  fold,  that  the  Monies  thereof  coming,  nor 
chePiofiis  of  the  fame  Land  itir  any  Time  to  be  taken,  Ihall  not  be  taken 


564 


Prohibition. 


as  any  olthe  Goods  or  Chattels  of  the  Teftator.  (15^  tl)C  COljCtCtlCC  It 

fcem0  It  tsmtcnocQ  to  be  put  m  tlje  Jn^cntor}),) 

pec  Clirtiini,  UlijCrCtl)^  ^Ult  tUaSi  to  put  the  Money  lor  vv  hich  the  Land 
was  lold  into  an  Inventory,  anO  ttjlS  attfje  €)lUt  o'f  tIjC  LCfiatCCgi* 


TIio'  it  is 

gc-nerallv 

true,  Tliat 

all  the  pcr- 

lonal  Ellatc 

of  the  Deccafed,  of  what  Nature  or  Oiuility  foever  it  be,  ought  to  be  put  into    the  Ii:uentory,    and   ap- 

prailcd,  yet  tlie  GiodJ,  ioi-.l.ich  tie  Hiiiia>:d  ii  intilkA  as  Jiimtriijlator  tohis  Wife,  are  not,  nor  Goods  given 

away  in  the    Lije-tmie  c]  lie  Lrreajeii,  and   actually  in  the  Pofleflion  of  the   t'crfon  to  whom  they  were 

given;  As  for  Inft.ince,  an  Adminillratrix   exhibited  an  Inventory  to  the  Ordinary,  in   which  (he  pa: 

ibme  uoods,  wliicli  the  Inteilate  had  given  to  a  younger  Child,  and  which  were  then  in  her  PotTcnion  ; 

For  ht^- younjjerChild  ai.d  file  being  lued  in  the  .spiriLual  Court  for  thole  Goods,  {he  pleaded   this  Deed 

ff  Gift,  and  the  Pica  bcint;  rejected  by  that  Court,  fhe  moved  far  a    Prohibition,  and    had  it.    2  Bull". 

315    Hill,  la  Jac.  James  V.  James. 


f^ob.  265. 
pi.  545. S.C. 
—  See  pi.  z8. 


^5    Jf  tije  eCiItfiafflCal  Court  I)O!tl0  i^ICa  of  a  Legacy  in  Equity, 

a  ii5rci)i!:ition  iics ;  lot  tijcp  ouijtjt  to  ijoiD  '0ic<i  by  their  Law,  as 
otijcf  eourtgiof  LainDo»  {pobatt'pKepovtg  cafe  343- 

36.  ^ffdje  Archdeacon  grants  to  OHC  tijE  OtHce  oi  Regilter  Of  tljC 
atrljtlCaCOnrp  lip  ijiei  patent  for  Lite  in  Keverllon,  i\m  after ti)e  Gran- 
tee is  a  Rccuiant  Convict,  bp  luljicij  ti)c StcljDcacon,  fuppafuiij l)mi  ta 


IjatjefOrfCttetl  tije  SDffiCe,  by  another  Patent, 


it    to  another   lor 


his  Liie.  anu  Ijc  itbcis  in  tl)c  Sptrttual  Court  agaiud  tfjefirll  6rautce, 

to   dcpri\e   huii   of  the  Office  for   the   Reculancy,  and  becaufe   it  was 

granted  in  Re\eri]on,  niiH  tl)nt  t)e  niap  Ijalie  tlje  OfnceaccorDuiij  to 
Ijis  patent,  a  fi)roIjiliit(on  fijaliue  ismxuX}  i  15ccaurc  Ijtre  ttjc  ©fficc 
luljidj  10  a  Chatter  of  jTranhtencnicnt,  comcis  in  Dclwte,  ana  luljici) 
of  tijc  2  patcntgsnjalt  be  prererrcD,  Mjtcl)  Ooe^  mt  bciomt  to  tljeir  3u= 
rifDiaion.  ^icl)»  15  fn*  15*  E»  Ktfte  ami  hridgcman.  HefoI^jeD,  an0 
Proljibitlon  granten* 

37.  If  tijCrebe  a  Quellion  between  z  upon  fe\eral  Grants,  luljicl)  Of 

tfjeni  fijnU  be  Eegiffcr  of  tbc  Court  of  tije  Ooinjop,  tbt^  %:x\\  not  be 
tricn  m  tlje  a31fl)op'0  Court,  but  at  tbeCominon  laiu;  if  or  tijo' 

tlje  Subjectum  c.x:x  quod  be  Spiritual,  ptt  ti  CSDffiCe  ItfCif  IS"  teUlp^tat 
pll»  8.  In*  16.  faiD  bp  Coke  to  be  Shnmr  andMingef^  catc. 

3S.  Jf  tlje  Billiop  grants   tlie  Ofiice    of  Chancellor  to  A.  and  B.    nnti 
after  a.   relcafes  to  B.  and  then  B.  dies,  and  aftCt  tfje  Biiliop  gives  it  to 

R.  aiTainfi  usfjom  0.  fue0  in  tlje  Ccclefiaffical  Court,  fuppofinn;  Ijis 
Ecleafc  to  be  boiii,  a  proljibition  fljall  be  srantcD  •■>  becaufe  tii£©ffice 
15  Cemporai,  tbo'  Ije  erercifeei  tf)e£)ffice  in  €;piritunJ  S^i^tter^*  D.  s. 
^^.Robonam'^  *  Cafe  refoJbeD,an(J  proljibition  n;ra?Jte5,pcr  Cunani* 

30.  But  if  a  Chancellor  be  fued  lu  COUtt  Cljrtftian  CO  be  deprived  for 

iniufficiency,  as  not  Ijabinn;  Conufance  cftlje  Canon  laiu,  no  \i>xii'' 
Ijibition  lieSi  becaufe  tijcp  arc  tbe  proper  Jutigc^  ofbisi  abi!tt>),  anu 
not  tije  2'uDi5C0  of  tije  Common  laiu.    p.  3  Car.  'B.  E» 
Cafe,  Cljancellor  of  ©ioucclfec.   Ecfoiben  pet  cuttam,  anti  pro= 
by  Name  of  ijibjtEon  Bniieo* 

Sntton  V. 

Chancellor  of  Gloucefter's  Cafe. Nov  91.  Dr.  Sutton's  Cafe.  S.  C. Latch.  22.S.  S.  C- 

Cro.  C   6";.  S.  C. S.  C. 


.C  cited 
4  Med,  2S 
Hill.  ;  VV. 
&M  BR. 
in  the  Cale 
of  Joi^es  V. 
Beau. 


Palm.  4.50. 
S  C.  bv 

"Name  ot 
Glanvil's 

Cale. 

Godb.  590. 


Dr.  Sutton's  Cafe. 
Cited  Arg.  4  Mod.  28.     And  fays  that  it  was  the  Opinion  of  Juftice  Crokc, 


who  reported  that  Cafe,  [but  it  feems  there  to  be  the  Opinion  of  the  Court]  that  the  DoiSlor  might  have  an 
Aflife  to  try  it,  if  he  had  any  Wrong  done  him,  which  fliews  he  had  a  Freehold  ;  and  if  lb,  then  admit- 
ting the  Spiritual  Court  can  try  the  Sufficiency  of  a  Chancellor,  yet  if  the  Temporal  Courts  have  alio 
in  the  lame  Cale  a  }urifdiiion  in  Relpeft  of  the  Freehold,  the  Authority  of  the  Eccleiiaftical  Court 
fhall  be  ouflcd —  S.C.  Clited  Comb.  506.  in  Cafe  of  Jones  v.  the  Bifhop  of  St.  Afaph;  but  the  Ci.art 
there  denied  that  Cafe  to  be  Law.  And  Eyres  fen.  J.  ftid  the  High  Commillion  Court  at  that  Tims 
bore  all  before  it,  no  one  durft  (peak  againft  it  but  my  Lord  Coke,  ujid  it  bore  him  down  at  lall. 

40,  !Jf  a  Vjcar  fues  the  Parfon  appropriate  Of  tijC  faUlC  l^iUtilj  to  fliew 

Caufe  w  hy  a  Terrar,  niaHe  concerniniT  tijc  laiiti  ano  Citijes  apper^ 

taining  to  ti)e  35icar,ftall  not  be  allowed  after  a  Trial  at  Co.mnion  La*\^ 

againft  the  Vicar  for  x\)z  fauic  ©bjuo;,  a  pro'gilntion  1100,  becaufe 
tijcp  canriCt  u  ctcrniine  fatter  of  Franktenement  tijere*   p«  1 1  Car* 


Prohibition.  565 


^a,  E»  tiCtlUecn  Pear/:  J^laUltiff,    anti  ^'/r  &'.  n'jrjter  a;id  Cbejicrhis  Far- 

■uicr  DefentiiintQ,  oftljcl^anflj  of  et,  l^ijilips  in  05lauceftcr,  luljccc 
tljE  ODicat  \uoiilD  ijalic  Citljcs  of  tirram,  aim  fuel)  liUc,  anruuj  fiain 
JLaitn,  wljcrcaf  Ijc  ijan  before  Cirljcjs  of  \m  aiiD  i^afturc  bcfoix  it  uias 

plOlBCO. 


y  li!ait!3,  tt  uias  bccouic  a  Cljiittd,  for  uif^iclj  i)c  ninjljt  l3a\3C  action  c.o.£.6o-.'" 

of  Trdpals.     DUbltatUC*  \D.  40  CU  X';*  K,  bCtUJCCn  "- Leigh  and  IVood.   pi.  S.  whcc 

'^  '  the  Pl.tinnrt 
fiirmis'd  for  a  Prohibition,  That  he  fct  fortli  the  Tithes,  /i/u1  aftcn-.-.^nh  Jhr  Jor,:_c  re.ifjnaile  Cmfn  i;not 
luyin"  what)  he  Mynnd  P.xrt  of  Ihem,  and  tliiit  tiie  P;u-lbn  had  (u'd  him  for  them  in  Conrt  Chriltian,  and 
thereupon  it  was  dcmurr'd  ;  And  Fefiner  and  Clcpch  held  it  to  be  good  Caulc  for  a  Prohibition,  they 
beinc'by  the  letting  cut,  become  Lay  Chatties,  for  which  he  may  have  Trefpafs  or  Detinue  at  Law  ; 
but  Gawdy  and  Popham  contra,  Becaufe  tliis^  Suit  is  af;ainft  tiic  Party  himfelf  that  let  them  bith,  tho' 
the  Parfon,  if  he  would,  might  take  his  Remedy  againll  him  at  Common  Law  ;  and  that  this  is  prov'd 
by  tlie  Words  of  the  Statute  of  ;2  H.  S.  That  if  any  do  mt  Jet  cut,  or  ito  detain  or  uilh-hold  his  tithes 
.which  is  to  be  intended  after  they  are  fet  out)  helhall he  fiied in  the  Court  Chrifiian  &c.  For  otherwile 
JVI itch ief  would  enfue  to  the  Parfon,  becaufe  he  would  fecretly  fet  his  Titles  fortli,  fo  as  the  Parfon 
ihould  rot  know  thereof,  and  then  afterwards  would  carry  them  away  Et  adjornatur.— S  C.  Mo. 
912  pi.  12S-.  reports,  that  it  was  agreed  that  if  the  Owner  himfelf  does  not  fer  forth  the  Tithes,  or 
caiTJes  them  away  after  thev  are  fet  forth,  there  the  Suit  fliail  be  in  the  Spiritual  Court  for  them.  But 
ifrhc  Owner  fcts  them  forth,  and  a  Stranger  carries  them  arj-'ay,  no  Suit  fliall  be  for  tliem  in  the  Spiri- 
tual Court. S.  P.   I  i  Rep.  2;.  Trin.  44  Eli/..  Sprat  v.  Heal But  where  after  Severance  a  Stran- 

!rer  carried  them  wxay,  and  the  Parfon  libcll'd  againlf  the  Owner  of  the  Land  tor  the  Tithes,  who 
pray'd  a  Prohibition';  it  was  adjudg'd  that  no  Prohibition  (hould  go,  becaufe  he  might  plead  the  fame 
ISlattcr  in  Bar  in  the  Spiritual  Court.    4  Le.  7.  pi.  50.  Hill.  26  Eh?..  B.^  R.  Gerrard's  Cafe. 

A  Paridiioner  fevered  the  Tithes  from  the  9  Parts,  but  being  in  a  Clolc  the  Gate  was  locked,  fo  as 
the'  Perfon  could  not  come  at  them,  and  he  llied  in  the  Spiritual  Court ;  and  there  the  f^uefti.m  was 
whether  the  Gate  were  locked  or  open.     And  thereupon  a  Prohibition  was  brought,   fuppoling  tliis  10 


44.  pi  26.  45  EliLinC.  B.  Black  well's  Cafe 


42,  vfrte  Churchwardens  Cf  ll  \dm^)  I)aliC  us'd  %mz  CUt  Of  031115  J  R^'f-  r>4. 
to  elect  the  Clerk  of  the  Farilh,  nuU  iX^Wm  HI  tfjCeCClCfianiCilI  COllCt  ,,„^s  p'_ 
to  remove  him,  and  put  in  one  of  the  Election  ot  the  Purion,  fl  PrOljUlltlOlt  .Suit  was  in 
lies     03!Cil,  22  IJil*  li?*H»    tlCtUlCen  Jla/pook  and  G/d'sc//,    fOl*  tJje  the  Spiritual 

Clcru'of^t.'2i:i)oniasapoftIcs  m  ILontion,  ^l^iroljibitton  ffrfliitcn  Uj>  ^-r^'f  i,° 
Confciit  of  tlje  parties  totrnije  Cuftom,  Jntratur,  ipiU.  22  ja,  ^I^^J'^''^.^^,^ 
la.  Hot,  466.  auD  lihe  [3rol]ibition  tjrantco  mmtm  Broiv>,c  audOa^v-  ^v  tjie  Par- 
iha^c,  for  iBOitccljapel  liJaruT).    p.  19  Ja.  'B.  K.  Hot  177.    ant!  fin.  by  Rea- 
h\\z  ikolnbitton  mranteii  lictujceit  Rcammnt  and  /k/zat,  tor  tlje  pannj  v"  "^  ^^e 
Of  it  CitSjbcrt'0  m  mm  in  tljc  Count?)  of  €)Ouurr.t.    i5.  ix  [^--.f;^ 

Car,  'B,  wardeP.s_ 

and   Pari- 
fliioners  praved  a  Pi-ohibition,  upon  Surralfe  of  a  Cutlom  that  tiic  Pariniioners  at  their  Vellry  ought  to 
choofe  him  •  and  aficr  diverle   Motions  a  Prohibition   was  granted;  tor  they  held  that  it  was  a  good 

Cuftom  and  that  the  Canoncannot  take  it  away.     Cro.  J.  670.  pi.  9    }  rin.   21  Jac.  Jerm»n  sCafc- 

In  fuch  aCafe  Mich  16  Car  B.  R.  The  Court  faid  thev  would  advile,  and  appointed  that  Precedents 
ITiould  be  fearch'd  what  had  been  done  in  fuch  Cafes.  And  the  C^afe  of  Trin  21  Jac.  was  cited,  but  no- 
thin"  more  is  faid  of  the  Matter.     Cro.  C.  589.  Orme  v.  Pembertoa.  By  Cullon,  he  is  eligir,le  by 

rhc  Parithioners  notwithft.mding  the  Cinon,  :md  then  the  Election  is  determinaaie  at  Common  Law  on- 
ly.    Per  Hale  Ch.  B.  Hard.  379.  Mich.  16  Cir.  2.  in  Cafe  of  Dawion  v.  Fowle. 

A^     Tf  a  Clerk  of  a  Parill.  claims  bp  a  CUllOm  tO  ba\)C  a  CCltain  A  Clerkof 
ClUamitP  Of  Bread  at  Chrilt mas  of  every  Inhabitant  Of  ti)C  PanO),  anO  "^^^^ 

nici  for  itm  tbc  Spiritual  Court,  a  proDibition  Iie^ ;  for  it  is  not.uVcou.t 
kc  tn  a*  Pcniion  tiiiE  to  a  parfon ;  for  a  ii  Ecixiftcr  of  tljc  g'piritttaU:hriiii.,n  tLr 
court  map  \mz  nn  atTtfc  of  \)vs  omcc.   93icin  s  car.  X^.  R.  be^  '^y  ly-, 
)SiAf!r(li^xni^^^^^     per  curiam  refoi^^cn,  ant.  ]3roinDition:;,'---^ 


566  Prohibition. 


i^jtiores      grnnten  to  l^erU,  tlje  plaintiff  tljcit  being  tlic  ipariflj  Clcrlt  of  15ci;^ 

Kq)  - 1  Hill.  16  Jac.  in  Bifhop's  Cafe;  cites  the  Rcgifter,  fol.  51.  for  he  is  Quodr.m  modo  an  OfScer 
Spiiirual  ;    and  cites  ii  E.  4.  47. 

*  See  Henrin-i. Penfioiis  fh  ill  be  demanded  in  the  Spiritual  Court.     Br.  Prohibition,  pi.  21.  cites 

the  Kcgiller,  fol.  4-. Penfioii  ifluing  out  of  an  Appropriation,  tho'  by  Prefcription,  is  luable  in  tlii 

tccltdallical  Courts  ;  for  it  could  not  begin  but  by  the  Grant  and  IiilHtution  of  Spiiitu.il  Peribns.  And 
therefore  if  the   Dutv  be  travcrs'd,  it  may  be  tried  there.     Per  HoltCh.  f.  Saik   5S.  Pa!"ch.  12  W.  3. 

B.  R.  Smith  v.\^■allis ||  S.  P.  i  Salk.  333.  Mich.  15  W.  3.  BR.  in  Cafe  of  Ballard  v.  Gerard 

44*  1^^  ^uit  lie  in  tijc  epivituai  Coiut  nniainfi  a  jfnuc  foe  FAcr- 

ciliUii  the  Trade  ofa  iMidvvite  uithout  Licence  Of  t!jC£)t;DiniirP  ilgainli 

tijc  Canons,  a  ?3i-oOibition  lies  ;  for  tljis  is  not  anp  spiritual  j'unc 

tiGU  ot  uiljidj  tljcp  t)a\3C  Conufancc.   €:r.  9  Car*  05.  E.  brtuscm 

Benskin  und  Cripps  refolijen,  nnQ  ^-Jroljibition  geantcn  to  tijc  Court 

of^lucicncc, 

s  c  Hob       ^^^  jf a  i^rcrcntment  be  matie  bp  tIjc  clmrcIjiDarticns  ofa  pariflj 

If:  iS;!;.,,  in  tljcCccictinitiQl  Court,  tijat  I* ^.  a  laarifljioncr  is  a  Kuiier  and 

\6']^c—  a  Sower  ot  j^ifcord  amonix  tljc  jQciixijbours,  a  |3roi)ibttion.  licS;  foe 

Hct.  132.   tljis  belongs  to  tbe  Lect  an'o  not  to  tiji^  Court,  unlci.s  tDat  it  luas  in 

s.c  and     ti^c  Church,  Ot  Vucl)  \M.    l^Dbatt's  Ecpotts,  Calcs^i.  bctuiccn 

Hill  4  Car.  ^""''■''  ^"'^  ^'airnti,  |i)rol)ibition  erautcQt 

C.  B.  andfeemstobc  taken  from  Hobart. 

s  c  Hob.      46,  jf  tije  Parifliioners  Of  a  i^ariflj  libel  in  t\)z  Ccclcfiflical  court 

^■■j-.^- P^  5-1- to  make  Proof  of  diverle  Manners  of  Tything  in  Perpetuum  rei  Me- 

Tac-He'  nioriam,  a  ^roljibttion  lieSi  for  tljis  [is]  conceiUcQ  to  be  a  ftranw 
n;.  s.c    attempt,  fpobart's EeportSj  Cafe  319*  mmz\\NcvpperaiidStc-ica?d. 

Kill.  4  Car. 

C.  B.  but  feems  to  be  taken  from  Hobart. 

4%  If  a  Suit  be  in  tIjc  spiritual  Court  Cc  ©fficio,  ot  otfjeruiife, 

for  *  a  VV^ay  to  the  Church  for  the  Parilhioncrs,  a  PrOijibttiOU  llCS  Up= 

c^nilanV  ou  a  g)urniirc  tljat  it  is  a  common  fL)i!jijU3t\p ;  for  it  iljal!  be  tricB  at 
ouvays  fo.  Common  Laio  iuljetber  it  be  a  f[)if<l)\uap  or  not.  tlTr*  15  Car. 
rjtrryi,,^     15.  K.  bettuccu  Smith  and  Ecnnet.  \ptt  cunam,  iproljilntion  granted. 

tithes  be- 

•lono;  to  Court  Chriftian,  as  appears  by  z  Ed.  6.   and  F.  N.  B.  in  Confukation  51.  A.  and  Linwood  in 

his  Treatife  of  Tithes.  Jo.  250.  Halfey  v.  Halfey. 

s.  P.  And  a  48,  jf  tije  Cijurcljtoarticns  of  a  Cburclj  fue  foe  a  Wav  to  tiie 
Prohibition  Church,  luljicb  tijcp  claim  to  appertain  to  all  tfjc  parifljioners  by  Prc- 
^d'^Toii  f^ripnon,  a  proljiBitiou  (Ijall  be  atantcti  i  far  it  is  tempera U  p.  i6 
Rep.  4t.  Sia.  05.  E.  bcttueen  tlje  Cfjurcljusarscns  ot  Bnhorne  andBcwe,  pco^ 
'^''-j^"- '^,  J^<:  Ijibition  tjranteii  accorninei]?. 

V.  Bedoe. 

S.  P.  and  49.   Jf  tlje  Churchwardens  Of  a  CljUrCij  fue  J.  S.  in  tljC  GtCltUClltU 

S.C.  Roll.    i^\  (J^OUrt,  becaufe  he  and  all  thofe  who  have   been   ieiled  of  I'uch  an 

fo'^And'  ""'■  ^o"*'^  ^'^-  ^^  ^^^  Perambulation  Of  tbe  parifljiouers  Of  tije  paniT)  JC» 

there  Coke  Ijabe  us'd  to  find  a  Refrefljing  for  tbem,  fClUCet,  Bread  and  Ale,  and 
Ch  J  took   to  fuMer  them  to  reit  themfelves  there  i  a  PrOl)ibitiOn  (Ijall  bC  gtant^ 

Kotice  of  £5^  becaufe  tljcp  claim  it  in  JB^aturc  ofa  CoroDv,  anO  if  rijis  fijall  be 
for  the  ftiSereb,  great  :jnconbcmencc  may  enfue.  ^9. 13  Ja.  3.  E.  ^m 
Preacher  at  •  ittBartiens  of  tfjc  Cbutclj  ot  i^ffl'-'^fon's  Cafe  in  tbe  Countp  of  "Berks 
Paul's  to  rcfolbcQ,  aan  prolnbitton  granteo.  Iplll.  15  Car.  IB.  E.  Lilic 
dme  with  pcoljibitton  prawn  fbr  tije  fame  f ^arifl)  in  mz  Lock's,  ann  rl)e  Cljurdj^ 
Mavor  and  warnens  Of  tije  lauic  pijurclj  upon  a  ©uit  bp  tbem  in  tlje  S-piritual 
ask-d  ^vlle-  Coutt,  but  It  [u?as]  uot  granted,  but  rcferr'D  to  sn^izz  Jones 
ther  he     tuijcu  Ijc  couics  lu  Ijls  Citcutt. 

IV  as  fuable 

or  this  in  the  Spiritual  Court. S'ee  (E)  pi.  14, 

30.  it 


Prohibition.  ?<^7 

50*  3!ftIjC  Parilhioners  Of  a  li)annj  IjaXit  Lifed 'QTijitc  UlijCl'COf  93C=  S- P.  F"or 
niOrp  (JC»  to  clccl  one  Churchwarden,  and  ihe  Vicar  another,  anO  urccr  "''"^^wiic 
•a  Canon  is  made  that  the  \'icar  Aall  eleit  both,   flntl  IjC  COCy  tlCCOlO^  p,-;  h'"i'"" 

inn;!D,  anH  tijc  l^anfljioiicrsi  dcft  one  accoininii-  to  tijc  Cultoni,  aim  uiidic  IT 
ttje  iDrDmavD  matllouis  f)im  ano  cftablifijco  tijc  tiuo  cIcfteD  tip  tijc  vv  'I'o-  "y  of 
car,  a  pi-oijioitiou  fljall  be  pantcD*   p*  j  la,  'B,  iv  Cljc  lAv  '^'^;.c'Hirch 

liOjlCUCl-y  of  Roh'en^oi  m  J^Cilt  aOUCgCti;  P^t  ^^'^^]- 

bjrd.    Noy. 
;  I .  Butt's  Cafe.  Tlie  Canons  ouf^lit  to  be  according  to  the  Law  and  Cudom  of  the  Realm,  and  they  cannot 
make  Chuvchwai-dens  that  were  Elrcjblc  to  be  Donative,  without  an  Adt  of  Parliament ;  and  the  Canon 
is  to  be  intended  where  the  Parlbn  had  the  Nomination  of  a  Churchwarden  before  the  makinc  of  the 

Canon.     PerCokeCh.  J.  Noy  t;9.  Anon. S. C   Cited  Vent.  z6-.  Hill.  z6  &  2-  Car.  2.   B.  R.  ia 

an  Anonymus  Cafe,  where  tlie  Court  laid  that  Cullom  would  prevail  agaiuil  the  Canon. 

51*  '2rr.  7  €ai%  05.  E»  blTtUCCU  Shirky  and  Brow».    Eot,  i39i,   3  S.  C.  cited, 

l^roinbition  srantcri  amna  tljc  Cijurdjuiarticnsi  ehofen  by  the  Par-  ^^^  aMan- 
fon  of  St.  Mi^iji/s  ncau  iLoiinau  'Bntiec  h\>  force  of  tlje  Canon,  '^^;"^"^g''i"t- 
upon  a  g)tu*mifE  tijat  tijc  pariflj  Ijajs  a  Cuitom  to  eieit  botii  church-  ti,c  cS 

wardens.     \^^  4  Cat.  13,  R*  IXOt,  420.  Draper  and  Stone  fOC  Abchurch  warden 

in  lontion,  Croytbition  srantcQ.  chotenbythe 

Parifliioners, 
becaufe  the  Ecclcfiaftical  Court  cannot  try  the  Cu (lorn  of  chufing,  as  is  here  alleg'd.  Raym.  4-y. 
44C\  Pafch.  33  Car.  2.  B.  R.  Carpenter's  Caic See  Mandamus  CH.  3  ) 

52,  IX  tl)e  Wardens  Of  a  CljUrClj  fue  \\\   COlUt  C|}n{!ian,  "^^  €).  The  Fxck- 

fuppofius  bp  tijcu-  LroEl  tijat  ijc  ann  all  luOofe  €ftatc  Ijc  \m  in  ccr^f,"'^'"^ 
tarn  lano  ncct  aoioimnrj  ro  tlje  Cljurcij-parU  ijaDc  itfcn  -^Tmic  iuijcrc-'i,r,''U'"' 

of  ^eUiOrp,  to  repair  lo  much  ot  the  Fences  ot'the  Church-yard  ag  UJaiS  Conudnce 

ncrt  aojomuio;  to  t[)E  fiuo  lanD,  a|5ro{3ibutoulic0,  fortijisi  oui5ijt"ii'i'=t¥- 
to  be  tcieo  at  tlje  Couiuicn  Jlaui,  maiumct)  a^  it  is  to  tijarac  a"";'"^"^^ 
Ceniporal  inOtntancc.  i^icij.  14  Car,  05,  K,  '2i:ije  Cfjiuttjiuaroin^  ;'iV,t  be.'nr' 

Ot  ClaydoH  and  Dunconib.  tried  jind^ 

found  againii 
the  Plaintiff  in  the  Prohibition,  a  Confultation  will  go.    Carth   ;;.  cites  the  Cafe  of  Vanacre  v.  Spleen 

53-  W ii  S'tut  be  in  tlje  gipiritual  Comt  by  the  official  cc  promo=  *  They  may, 
tione  of  one^Dniiniftrator  afrainft  anotljcr  Pro  laiuce  animte  lor  a  te-  '"/"'•'^  ^-^^^ 

merarious  Adminirtration  bD  DCfCntiant  Of  tijC  <5500t!jj  Of  tlje  3'ntelTate,  "LriTLs 

nnD  to  ijinner  bim  to  make  an  S'n^jcntorp,  anti  to  IIieid  ni  an  %m\\'  IngtuvL 
torp anucy'B  tljc particular  ©0050 ; ptcljlbition fic0,  bccaufc otljer^^'-'y'"''^ 
toifc  tljcp  fljall  *  try  tlje  l^ropcrtp  of  tljc  0500110  tljcrc,  toijcre  Ijc  map  P'-\""'ff^  ^^"^ 

ijaVie  Tro\er  and  ConverJion,  or  Detinue  at  ti)C  COHimOn  laiU  fot  LSVrv 
tljCm.  93lttJ.  16  Car.  05,  E.  bCtlUCCn  S.iy  and  Harivayd,  \^tX  CUnaUI.  the  t'roptrty 

Brcljibinon  grantcti  to  tijc  Confiltorp  of  Wmxm  \\\  2  ^itits,  ''^'^'■^- 

Per  Hufley 
Ch.  J.  Kt'w.  no.  b.  pi.  34. 


Ill 

■ds  iff 


54.  For  Afarria^e  Mofiey^  the  Suit  lies  in  t!ic  Spiritual  Courr,  and  J fi  '■'■'» 
and  therefore  Prohibition  does  not  lie  thereof.  Br.  Prohibition,  pi.  ii.''''^'"'^  ^''"'' 
cites  tlie  Regiiler,  fol.  46.  .v^hhif 

Daiichler, 
and  afterwards  they  are  divorced,  the  Wife  may  fuc  in  the  Spiritual  Court  for  the  Goods,  and  no  P.-« 
hibicion  will  lie  thereof  F.  N.  B.  44.  (C) 

SS-  Where  theSpiricual  Court  ought  to  have  Juri(cliclion,  Prohibition 
does  not  lie.  Contra,  where  the  Temporal  Court  ought  to  have  Juriiliic- 
tion.  Br.  Prohibition,  pi.  23.  cites  22  Ail".  77. 

56.  If  a  Man  ilies  in  the  Spiritual  (]ourt,  for  Rent  refcrvcd upon  a  Lcafc 
of  Tithe  a  ^  orOficrings,  Prohibition  lies  ;  for  this  is  a  Lay  Kent.  Br. 
Prohibition,   pi.  3.  cites  44  E.  3.  32. 

57.  Of  a  Tfjing  'Uijhicharifcs  upon  their  Judgment  in  their  Spiritual  Courts 
the  Suit  for  it  (hall  be  in  the  Spiritual  Court.  Per  Hill,  Br.  Juriidi6lion, 
pi.  c6.  cites  II  H.  4.  85. 


c;68 


Prohibition. 


S'3.  W  ii  Mun  J nkcs  A  Chaplain,  or  a  Mau  infra  facros  Ordifies^  and 
he  lues  him  in  the  Spiritual  Court,  Prohibition  lies  ■■,  For  they  uie  there 
to  excommunicate  him  lor  this  Offence,  and  will  not  allbil  him  oi  ic 
till  he  has  made  a  Satislaftion  to  the  Party  grieved.  Br.  Prohibition, 
pi.  1 8.  cites  II  H.  4.  88. 

59.  An  Action  upon  the  Cafe  is  maintainable /o;-  not  doing  d/vine  Service, 
though  it  be  a  Ipiritual  xMatter.  Br.  j  urifdi6tion,  pi.  43.  cices  22  H.  6.  52. 

60.  In  Trcfpafs  in  B.  R.  dgainji  a  Parfon  for  taking  Goods,  clnwung 
than  to  be  tithes  hy  Caiife  of  Siha  Cxdua,  and  the  Parlon  iued  him  in  the 
Spiritual  Court  tor  the  lame  Matter,  and  upon  this  the  Court  granied  u 
Prohibition.  Br.  Prohibition,  pi.  6.  cites  38  H.  6.  14. 

Br.  Spoils-        (5j_  ^^   Prohibition   lliall  go  where  the  Right  of  jidvozvfon    comes  in 
"""'s'  ^    Delate  in  Suit  of  Spoliation  in  the  Spiritual  Court.  Br.  Proiiibition,  pi.  7. 
cites  38  H.  6.  19. 

62.  Spoliation,  and  Debate  upon  Jlppfopriation  fliall  be  determined  in 
in  the  Spiritual  Court.  Br.  Jurildiition,  pi.  no.  cites  38  H.  6.  20. 

63.  A  Prohibition  lieth  for  Cbaitntnes,  Chapels,  Prebends^  and  Vica- 
rages Sic.  F.N.  B.  40.  (G) 

64.  If  one  be  I'ued  in  the  Spiritual  Court /or  the  Collation  to  a  Grammar 
School  a  Prohibition  lies.  F.  N.  B.  40.  (L) 

6S-  The  Chancellorof  N.  made  d.n()rder,  and  pubiillied  it  there,  that 
ever)  Woman  coi/iing  to  Z'ff>^//rf^fr/ alter  Child-bearing,according  to  the  Law 
of  the  Church  oi'  En^.  ponld  come  covered  with  a  white  Veil,  and  that  Eliz. 
Shipdcn,  being  admonijhed  of  it,  refnfed  to  conform,  for  which  Contempt  foe  was 
escommiinicatcd^  and  a  Certificate  thereof  into  Chancery,  whereupon  a 
Capias  was  to  be  awarded  againlt  heri  to  prevent  which,,  a  Prohibition 
was  moved  for,  alleging  this  to  be  a  New  Law,  not  allowed  by  any 
Cuftom  or  Canon  &c.  and  offered  Obedience  if  there  was  any  fuch, 
whereupon  the  Judges  delired  the  Relolution  oi  the  Archbifhop,  who 
convened  all  the  Bilhops  then  in  London  to  the  Number  of  6,  and  they 
all  agreed  and  certified.  That  this  was  an  anticnt  Ctiflom  in  the  Church  of 
England;  thereupon  the  Prohibition  was  denied.  Palm.  296.  Trin.  20  Jac. 
S  C.and  re-  B.  K.  Shipden  v.  Dr.  Redman,Chancellor  of  Norwich, 
ported  Ver-  66.  A  Chaplain, \\ho  was  under  a  Vicar,  tilelled  again  ft  him  for  a  Salary,  and 
batim  ahkc.  prefcribed  that  the  Vicar  ought  to  pay  him  4  1.  per  Annum  for  his  Salary  i 
,,"^___1L.  The  Vicar ///f^£/?frt' ill.  that  the  Chaplains  were  eligible  by  himfelf, 
and  therefore  becaufe  that  Chaplain  was  not  chofen  by  him,  he  is  not 
Chaplain,  but  is  in  of  his  own  Wrong,  zdh',  That  the  Prefcrip- 
tion  lor  Salary  was  triable  at  Common  Law  ;  It  was  inlifted  for  the 
Chaplain,  that  the  Salary  was  Spiritual,  as  the  Cure  is,  like  the  Cafe  in 
D.  58.  pi.  4.  [it  Ihould  be  pi.  8.]  But  a  Prohibition  was  granted,  till  it 
was  determined  to  whom  the  Election  appertained.  Hetl.  36.  Mich.  3 
Car.  C.  B.  the  Vicar  of  Hallifax's  Cafe. 

67.  In  Cafes  o'i  Licences  to  marry,  granted  by  theOidinary,  no  Prohi- 
bition lies,  but  the  Remedy  is  by  Appeal  i  But  if  it  comes  in  Queftion 
in  Ecclelialtical  Court,  whether  the  Words  of  the  Aft  of  25  H.  8.  give 
fufficient  Power  to  the  Archbiftiop  to  grant  Licence  there,  if  Ecclelialti- 
cal Court  adjudge  againft  the  Power,  Prohibition  lies,  and  not  other- 
wife.  Jo.  259.  Pafch.  8  Car.  B.  R.  Matingley  v.  Martin. 

68.  Jffcts  or  not  JJfets  is  ti'uhlc  by  the  Spiritual  Court  i  Mar.  97. 
Trin.  17  C.  B.  Anon. 


5' 


69.  If  there  be  a  Feoffment  of  Lands  aud  Tithes  without  Livery  ;  And 
upon  a  Libel  tor  the  Tithes,  the  Court  does  adjudge  the  Tithes  to  pafs, 
though  no  Livery,  a  Prohibition  Ihall  be  granted.  Vent.  41.  Mich.  21  C. 
2.  B.  R  [But  this  feems  only  to  be  a  Point  mentioned  in  Bates's  Cafe,  and 
to  refer  to  the  CafeofFIutter  v.  Whiskin  Pafch.  35  Eliz.  cited  by  Coke 
Ch.  J.  in  Cro.  J.  269, 270.  in  Robert's  Cafe.] 

70,  Libel  was  by  the  Church-wardens  of  &c.  in  the  Ecclefiaftical 
Court yiir  I.  /.  10  s'.  ^d.  upon  a  Cuflom  for  Payment  of  ib  much  fcr  being 
l-tiried  tn  the  Body  of  the  Ci.-tnrh  i  and  a  Prohibition  was  prayed,  i'nggcj^i'ig 

'that 


Prohibition. 


569 


I 
ions 


that  there  was  noftich  CiiJ}otii ;  The  Court  held  fuch  a  Culloni  mull  be 
good,  becaule  the  Pariih  is  to  he  at_  the  Charge  to  make  up  the  Church 
Floor  J  but  ii  the  Cullom  be  denied,  it  mult  be  tried  at  Law,  and  therelbre 
inclined,  that  a  Prohibition  was  to  go,  tho'  it  was  objected,  That  this 
Duty  belongs  properly  to  the  Ecclehaltical  Court,  and   no  Remedy  lies 
lor  it  chevvhcre  i  Vox  lo  is  the  Cale  oi %\Modi(s dccima>!di ^  which  may  be  de- 
manded in  the  bpiritual  Court,  but  il"  the  Cullom  be  denied,  there  Hmll 
be  a  Prohibition,  and  io  tlieCaieol  a  Mortuary,  lince  the  Statute  ofH.  8. 
And  alcerwards  it  being  moved  again,  Hale  Ch.  J.   being  prefent,    the 
Prohibition  was  granted,  which,  Hale  faid,  was   Ibmetimes  granted  YVo 
Ddetfa  Jurij'diitwius^  and  iomcdmes  Pro  DcJcffnTriatiojus,    as  in   tliis 
Cale  and  others,  v.- here  the  Ground  of  the  Suit  is  Prefcription^  For  in 
their  Law  they  have  fometimes  allowed  Prefcriptions  ol  20  Years,  Ibine- 
times  of  40  Years,    but  we  admit  none   but  what  artDi  Tewps  du/jt  Sc. 
Vent.  274.  Mich.  27  Car.  2.  B.  R..    Anon. 

71.  In  a  Suit  lor  Fees  for  fwenriiig  Church-ivardaiSy  and  takino-  their 
Prelentments  a  Prohibition  was  granted.  1  Salk.  330.  Hill,  <\y  & 
M.  B.  R.  Gollin  v.  EUifon. 

72.  A.  was  libelled  againft  in  the  Spiritual  Court  Ex  Officio  for  teach-  ^-  ^  ^^  ^■ 
ing  School  contrary  to  the  TjtbQuwi!,  Anno  1603.  which  is  that  no  Man  ^"  ^°i^^ 
Ihall  teach  a  School,  except  licenied  by  the  Bilhop,  and  otherwile  qua-  Notes  thcr"^ 
lified,  as  the  Canon  prefcribes,  and  now  A.  prayed  a  Prohibition,  fug^'-ell-  (a)—  And 
ing  that  every  Man  at  Common  Law  may  teach  and  inllruct  another  H'j'tC^ 
That  all  Cjnons,  contrary  to  the  Law  of  the  Land  are  void,  and  do  not  i'.  ^i""!— '^"' 
bind  tlie  Laicy  whereof  he  is  one,  that  the  Statute  of  i  J^^f.   and  13  Cir.  havJdefer- 
2.  have  appointed  Peiudties  lor  keeping  School  without  Licence  i  And  that  vedly  go.ie 
the  Expolition  oi  all  Statutes  belongs  to  the  King's  Courts,  and  the  lino-le  to  Hop  Pro- 
QQeiYion  was  How  far  this  Ca/jon  ttfids  a  Layman,  which  Hole  fiid  was  "^'^/"^'^  ^""^ 
no  Queftion  to  be  determined  on  a  Motion,  and  therefore  granted  a  Pro-  School'^ 
hibition,  and  that  they  declare  upon  it.  12  Mod.   192.  Pafch.  10  \\\  3.  without  Li- 
B.  R.  Oldheld  and  Sir  Richard  Raines.  cencc,  be- 
Point  nsver  yet  detennined    12  Mod.  51S.  in  t'le  Cafe  of  the  King  v  Hill.. But  a  Prohibhtrn 

having  been  granted  to  the  Spiritual  Court  to  Itay  Proccedipg";  there  on  a  Libel  for  te.ichin<r  Sdicol 
without  Licence,  a:;d  it  bemg  moved  in  Chancery  to  difchargcthc  Prohibition,  Lord  Kecper'dccl  <r-d 
that  he  always  was  and  iHU  is  of  Opinion  that  Keeping  School  is  by  the  old  L.iius  cf  CtiFlaKiiof  Eal-Af 
iical  Coni'f.vxc,  and  therefore  difcharged  thcOrdcr  for  a  Prohibition'  Wms's  Rep  ly  to  -  2. '  M  ich  '  1 -'o 
Cox's  Cafe  —  But  upon  being  moved,  That  it  was  for  tenihing  S'd  col  genera  l/y,  iLnlcutfayhm  ivhat  s)  °'l 
and  that  the  Ccurt  ChriliianLould  not  have  J  urildiriion  of  Writing  School.s,  Keadinp-  SchoolT  o- Danc- 
ing Schools  fccc.  which  his  Lordfhip  adL-nted  to,  ard  thereupon  f;rantcd  dj'roli'i.-hn  ,u  10  i!c  tlichhtr  all 
Schools  hilt  Grstnn:.ir  Schools,  which  he  thought  ot  E.ckfialhcal  Cognizance.  VVillijms's  Keo  '-'--. 
ut  Supra.  .  ^    2-'    =5- 

73.  Whether  Vicarage  or  Not  il-.all  be  tried  in  the  Spiritual  Court  ;  and 
(o 'lis  of  dnJppropriatio/i.  3  Salk.  378,  Trin.  12.  \V,  3.  B.  K.  Smith  v 
\\'aller. 

74    Suit  cannot  be  in  Spiritual  Court  for  the  Fees  of  a  Regijler--,  fir  the  s  c  i  Sall- 
Office  of  Regiller  of  Archdeacon  is  a  Freehold,  for  which  an  Alli^e  will  5;5.'Mich.^* 
lie  ■■>  And  if  lo,   a  Denial  of  the  realbnable  and  ufual  Fees  thereof  will  15'w.  3. 
be  a  Dilieifin  of  his  Office.  Per  Holt.  Ch.  J.  12  Mod.  608,  609  Hill     12  ^-  ^• 
W.  3.B.  R.  Ballard  v.  Gerrard. 

75.  Motion  for  a  Prohibition,  fnggeJUng,  That  where  there  is  a  Dif~ 
pute  IcfX'ec/j  a  Peculiar,  aud  the  Prerogative  Court,  ivhether  Bo//a  Notabilia 
or  Net,  it  mull  be  tried  by  the  Common  Law,  and  cited  i  Mod.  211. 
But  per  Cur.  this  mult  oti:en  have  happened  ;  And  if  a  Prohibition  lav 
there  mull  ha\  e  been  frequent  Inllances  of  it  ,  ixjhere  a  Prohibition  is 
granted  Pro  DeJetJu  friationis,  it  is  upon  Suppnfttion  of  different  Rules  efia- 
blifkedhyxht  Spiritual  and  Common  Law,  as  in  cafe  of  Prelcripuon  i 
But  as  to  Bona  Notabilia,  the  Spiritual  and  the  Common  Law  are  the 
fame,  and  the  Cale  quoted  was  not  much  regarded.  10 Mod.  272.  Mich. 
I  Geo.  1.  B.R.  Cottingham\'.  Lofts. 

76.  A  l*arilli  Clerk,  cholen  by  the  Parfon  by  Cullom,  was  libelled  a- 
ga'mil  to dipnve  Urn Jor  Drnnkcamfs  in  Church  at   the  Tinjc  of  Di\-iiie 

7  ^'  S-Tvice, 


570  Prohibition. 


,ice,  and  for  Leijudnefs^  and  other  Crimes  of  the  like  Sort,  which  ren- 
;d  him  unfit  tor  the  Service  ol'the  fiiid  Office.  Itwus  ftiggej}  ed  ior  i\  Pro- 


Servi 

dered  him  unfit  tor  the  Service  ol  the  laid  Office.  It  was ///^^(//f// tor  a  Pro- 
hibition, r/'^r  thofeCrivies  are  properly  funifJjabk by  I fidinmevt ^  and  to  not  cog- 
nifable  in  the  Spiritual  Court,  nor  can  the  Spirtttial  Court  determine  that  the 
Party  is  guilty  of  Crimes  triable  by  the  Cotirfe  of  the  Common  Laiv^  before  he  is 
co}!vtHed  of  them  at  Law  ;  But  on  the  other  Side  it  was  fiiid,  That  in  this 
Cafe  the  Parifli  Clerk  beingchofe  by  the  Parfon  hi^Officeis  Spiritual,  and 
confequently  the  Suit  for  a  Deprivation  is  proper  in  the  Spiritual  Court, 
but  admitted  that  it  would  bcotherwife  if  the  Suit  had  been  to  inflict  u 
Corporal  Punilhment  for  thofs  Crimes,  which  are  properly  indictable, 
and  that  fo  was  the  Judgment  in  B.  R.  in  the  Cafe  ot  '^LOtDllftnll  ij* 
"SCOotpC*  Trin.  13  Geo.  i.  where  a  Confultation  was  awarded  as  to  the 
Suit  for  Deprivation ;  But  the  Prohibition  Hood  for  fo  much  of  the  Suit  as 
went  topuniih  the  Crime  itfelf;  And  the  Cafe  of  CIjC  CorpOtiUiOn  Of 
CtltUflC  being  mentioned  to  the  Court  where  a  Diltinftion  was  taken, 
■viz.  where  the  Crinie  was  againji  the  Duty  of  the  Party's  Office,  a.s  Extor- 
tion if!  a  judicial  Officer,  he  might  be  proceeded  againft  to  a  Deprivation 
or  Removal  before  Conviftion  ot  fuch  Crime  in  a  due  Courfe  of  Law, 
otherwife  not,  which  Difference  was  agreed  by  the  Court ;  And  there- 
upon the  Motion  was  denied  Quoad  tlie  Deprivation,  that  Matter  having 
been  folemnly  fettled  in  the  Cale  oi  Tovvnfend  and  Tliorp  aforcfaid.  Gibb. 
189.  Hill.  4  Geo.  2.  B.  R.  Newcomb.  v,  Higgs, 


(G)     For  Seats  In  the  Church. 

The  Difpo-  I.  r-p  Jpe  jDirpormo;  of  t()C8^Cat)5  in  Navi  Eccleliae  MOim  Of  COIU^ 
fal  of  Seats  in        J[_     t^^on  j^ijjjjf  fQ  tljC  Ordinary  Of  tljC  ^iOCCfe,  fO  ti)tit  1)5  may 

Church  be-   pJ-'ice  and  difplace  whomfoever  he  pleafe. 

lonp;s  to  the 

Ordinary    and  fo  of  Scats  in  a  Ch apel  of  Eafe  l/elongini;  to  the  Mother  Church  ;  and  to  know  w hether  it  be  a 

Church  or  not,  is  by  knowing  whether  it  has  B.nptifteritwi  et  Sepultm-ati:.  12  Mod.  218.  Lee  v.  Daniel.    ' 

1 2  Rep.  104.       2.  3;f  a  ^an  antl  U^  SlUCCffOrjEi,  anti  all  thofe  whofe  Eflate  he  h.is 

^;<^-  \     in  a  certain  ^£iruagc,lja\3C  uted  ^unc  luljtrcof  ^^cmorp  $ c,  to  repair 

C^.°l        an  Ifle  in  the  Church,  and  to  iit  in  it  and  no  other,  t|)C  ©rOlUarP  cail'- 

caie  -  alias  itot  Hifplacc  fjiin  i  fot  if  l)c  ntfpIaccjS  Ijim  a  pcoljibition  !ie^  i  Jiecaure 
corve.1  V.  jje  i)a$  It  tip  Prefcription  foc  a  rcafoiiablc  ConfiHEratioii*  ^3*  1 1 3a. 
pym  -  s^p  -13^  j^^  pfr  Curiam.  ^.  1  o  Ja,  15*  pec  Curiam,  Pmme's  cafe. 
miiz]'c  Jpobart'si EcportiS 95. 

in  the  Cafe  of 

Frances  v.  Ley. But  where  a  Libel  was  for  a  Seat  in  a  Church,  the  Defendant  furmifed  in  C.  B 

That  he  aiidhis  Arcejlors  have  iifed  Time  out  of  Mind  &c.  to  h^ive  an  IJle  with  a  Seat  in  the  laid  Church  jor 
itimfe/f  ajid  Family,  and  thereupon  pray'd  a  Prohibition  ;  But  becaufe  ;<  did  appear  upon  Examination  of 
t'e  Party  himfelf,  T'hat  the  *  Parip  have  always  ufed  to  repair  the /aid  IJIe  and  Seat,  the  Court  would  not 
grant  a  Prohibition  ;  for  that  proves,  That  his  Anccllors  were  not  the  Founders  of  the  laid  Ifle  and 
Seat.     Jlfo  another  ^Ian  hath  always  ufed  to  fit  with  him  in  the  faid  Seat,  which  alio  proves,  That  it  does 

not  belon,q;  to  him  alone.     Godb.  199    pi   2S6.  Trin.  lojac.  C.  B    Garven  v.   Pym.- But  otherwiie 

for  a  Seat  in  an  Illc,  a  Man  may  prefcribe  ;  becaufe  it  may  be  prefum'd,  That  iiis  Anceftor,  or  he  whofc 
Eftatc  he  lias  in  the  Houfe  and  Land  in   the  Parilh,  had  built  the  Ifle.     Mo.  878    pi   12;:.  Mich.  10 

Jac.  Pym  v.  Gorwin. 12  Rep.  104.  CorUCU's  Cafe  accordingly,  and  that  it   fliall  be  intended  that 

ibch  Buildint;  tlie  Ifle  was  done  with  the  Affent  of  the  Parfon,   Patron,  and  Ordinary  to  the  Intent  to 

have  it  only  to  himi'elf. •  S.  C.  3  Inft.  202.  cap.  97. 2  Watl"  Gomp.  Inc.  8 vo.  711.  cap.  59. 

cites  S.  C. 

*  It  the  Ifle  has  been  ufed  to  be  repaired  at  the  Charge  of  all  the  Parifli  in  Common,  the  Ordinary 
may  there  from  Time  to  Time  appoint  whom  he  pleafcs  to  fit  there,  notwithftanding  any  Ufage  to  the 
contrary.     ReiblvM  Per  Cur.  Cro.  J.  366.  Hill.  12  Jac.  in  the  Star-Chamber    Frances  v.  Ley. 

3.   Jf 


Prohibition.  c'yi 


3  3f  n  9i3m  prefcribes,  -cijiU  \)t  aiiD  fjifi  anccffoi'S,  mill  nil  tliofc  ■'>  ^'  ^v 
iiiljofc  eftatc0  tijcp  ija\)c  in  n  certain  fl5rmian;c,  ijauc  ufcD  ro  lit  in  a  ^"neof 


bitian  lies 
It  10  a 

Confilicn 

l^Iace  luijcte  tijc  S»cat  is  be  tljc  iTranktcnenient  of  x\)z  li^arfbnV  '^x\  corcT.ngiV 


iRcfolbeti,  anD  13i-oi)ibitton  urantct!  anti  tricn  bp  ©croicr,  ^,  is'^lavS^'odaRight 
a5»  betiueen  *  i>oor%  aiiD  Day  oc  ii^?//j'.    Jpobart'0  i^cpoiti3  oj/"'''-^^''! 
^anic  Cafe*  f.  ''f,''^v" 

he  ff7H/7  cl.titn  it  as  hchnghi?,   to  his  Hoiife,  and  not  otliei-wife  ;  for  properly  it  beloncrj  to  the  Mamr-H  i  } 
if  any  Manor  be,  and  not  to  the  Manor  which  includes  other  Tenants,  Farmers,  and  Inliabitants        " 
One  can't  prefcribtj  for  a  Seat  in  the  Baiy  cf  the  Church,  but  thofe  are  difpofible  bv  the  Parfon  and 

Churchwardens  ;  But  for  a  Seat  in  an  ffle  he  may.     Mo  S7S.  Pym  v.  Gorwin. .  In  a  Prohibit  • 

the  Queftion  \vas.  Whether  a  Prej'criptwii  to  nn  Ijle  in  a  Church  -.vhich  he  and  nil  thfe  &',-.  m'd  to  ret^j''- 
as  belongim  to  a  Manor  where  he  had  no  Dzveilinqi-Hou/e,  hut  enly  Land,  were  good  \  Tne  Court  incim'J 
that  it  was  not  good,  but  order'd  the  Prohibition  to  go  and  Defendant  to  plead,  that  it  come  Tudiciallv 
before  them^     2  Mod   28^;.  Hill.  29  6c  qoCar.  2.  C.  B.  Shambrook  v.  Fcttiplace. 

A  Prefiriplicn  for  a  Seat  in  the  Church  Ratione  Mejfuagii  where  he  inhabits,  is  a  Temporal  Thine   and 
a  Prohibition  was  granted,     Noy  i  29.  Anon.  °' 

A  Libel  was  in  the  Bifliop's  Court  of  Ex-eter  for  a  Seat,  which  the  Chnrchivardens  had  cfjirnedtj  If  in 
whole  Right  the  Plaintiff  claimed  to  fit  there;  The  Defendants  there  Jiigire/led  now  for  aVruhibitio" 
a  Prejlription  by  a  ^<e  Eft.-te  for  tlie  Seat,  as  being  an  ancient  Seat  and  belor.gi/irr  to  their  tenement  in  U' 
and  that  they  and  all  thcfe  tVc.  had  iifed  to  repair  it.  It  was  doubted,  Whether  this  Prefcription  in  Ka-' 
Eccleftx  was  good,  but  it  were  good  in  an  llle.  The  Court  inclin'd  that  Inch  Prefcription  in  N.tvi'  e"- 
clefis  may  be  forfpecial  Cairfe,  as  for  Repairing,,  but  they  would  not  grant  a  Prohibuion.  5  Mod  j_-'''J 
Pafch.   II  W.  ;.  Crook  V,  Sampfon.  '*■'    ' 

Where  a  Man  has  a  Right  by  Prefcription  to  a  Seat  in  the  Cliurch,  he  may  fue  in  the  Spiritual  Con 
for  quieting  his  Pcjcffton,  and  may  admit  iiis  Prefcription  to  be  try'd  there  as  a  Defendant  does  a   Uod  j  "" 
aPenJicnhy  Prefcription,     zSalk.  551.  Jacob  v.  Dallow. —  5  Mod.  436.  Pafch.   1 1  VV   -<    S  C      "  "'" 

♦  Hob.  69.  pi.  79.  S.  C.  •  3-     •    ■ 


@)*C*      l^etCUriani*  andconllant 

r  ■    ■  n  >-  fitting  and 

hilrying  there,  without  ufin^  to  repair  It,  ^;i;V;/ K3/!frK/i.tc  Pr:i^cr/y.     Cro.  J.  ~6fs.  Frances  v  Ley  -i 

S.  P.  Nov  104.   Day  V.  Bednqfidd. 

Reparation  of  a   Seat  ought  to   be   given   in  E-jidemc,  tho'   it   be  not  mentioned  in  the  Declaration 
Sid.  205. Pafch.  16  Car.  2.  B.  R.   in  Cafe  of  Buxton  v.  Bate. i, an. 

5.  COe©rtihuup  batlj  notljinn;  to  do  m\)  tljc  %tm  in  the  chapds 

annex'd  to  the  HouTcs  of  Laymen,  ajS  Of  jQOblCS  f  C,     Ct*  la.  12  X^ 

Slgrccl!* 

6.  3if  a  Layman,  b))  tlJC  DiffOUltiOn  Of  C^OUaffCriC0,  ha,s  a  Mo-Seepi  S 
naftery,  in  which  is  a  Church,  ^atCCl  ttjCCCOf,  antl  tjC  luilcrs  the  Pa- 

riihioners  h\>  H  \civx  'WiiWC  to  coiue  to  it  to  i)eac  iDiuuic  ©ccuicc,  ana 

toufe  it  as  their  Parilli  Church;  '^JjIS  fljall  glDC  lUnSQUtJan  tO  tije  ©C' 

Uiitatp  to  oraer  tl3e€""xat£i,  bccauienoiuin  Jfart  this  is  a  Pariih  Church, 
tljo'  before  it  wag  not  fubicft  to  tljc  OcDinarp.  ^^r.  12  3'a.  15.  Jiuz- 
i.»v^'0€afc  IjclD. 

7.  3if  tijcrc  be  a  Cuftom  in  a  li>avifij,  That  12  of  tljc  parllTjionercj  foph.  140. 
map  elect  Cljurcljiyatocns,  tlje  lobiclj  Curchwardcns  ijau  {^amt  bp  ^,  ^-  ^^^  ^'^« 

tljc  CUltOni  ro  repair  the  ancient  beats,  tO  ere£t  New  in  Na\i  Kcclelise,  i^f^lH^ 
andappciint  wjiat  Pcifons  Ihaillit  in  tliem._  !^nll  tljC  djiirCijiUarbCn.Sl  Trldum,' 
fO  elected  erect  a  New  Seat  in  Navi  Kcclcli*,  and  appoint  a  certain  Man  and  a  Prohi, 

to  iit  there,  flnti  attct  tljc  QtiJiiiarp  nccrecQ,  Cijat  anotijci*  fijall  Ij.iue  '^'"'^"  y^"'. 

'  fjjj.  :;!•  Jilted,  bff- 


57' 


Prohibition. 


C.Ui'l.    Ull6 


t\r  fecii^". "  i^ioijitutmu  lies  i  tor  tljc  Cuftom  ijn?  ftrcti  tijc Inciter  of 
Grant  to     j},g  Difpofiiiff  ot  tljc  S»cnt0  to  tl)C  CljurfljuiiirDcns.    p«  i6  3a»  ^. 

One  and  lus  j^^  tictlUCCU  Braliu  flllD  frcdaiiiick,  tOt  il  ^Cilt  III  tijC  Cljlircl)  Of  "BtC- 

Tc'ld'-^T  otk  in  CLornumlL  Ecfolbcti,  anU IproDibition  grantco*  IMit  it  luas 
aifa  partly  crantclJ  bccaufc  tlje  Sentence  ot  tijc  ©rtiimirj)  uia?,  Cljat 
Crcoenram  fljoulD  Ijaije  tt)C  ©cat  *  to  him  and  his  Heirs,  niiD  tijat 
1  c  u  none  ncuiu  Sifintb  Ijim  luiDer  tljc I5ain  of  tljc  greater  Crconuim^ 
loTv-^'rot  to  mcatEtn,  uticij  is  unrealonablc ,  Qnti  tj)  tijis  Sentence  Ijc  ann  Ijis 
ti.c'perion    jpotg  fu'iH  tQ'iJC  It,  tJj-o'  tljev*  l3c  ttot  Juljabitantp  uiitljm  tfjc  l^arlfij, 

but  to  the  . 

Hcufe  ;  3rd  fh<  uld  it  be  otherw  ile,  tlien  when  the  Pei-fcn  leaves  this  Place  ar.d  divtlls  in  another  he 

niipht  retain  the  J  eat,  vhich  is  not  rearonable. 

It  was  fu^ftefled  for  .1  Prohibition,  That  7'ime  out  cf  Mind  the  Parijkiovers,  at  their  (Kvn  Charrc,  l.ni  re~ 
tair'd  nil  thf Seats  tn  the  Q  iinb,  and  that  by  reafon  thereof  they  had  been  Tinx  out  of  Mind  dilpoled  of 
by  the  Chmrhwardens,  but  that  the  Bifhop  had  now  taken  upon  him  tlie  Difpolai  of  the  Scats ;  And  for 
the  Plaintift  \va'  cited  this  Cafe  of  Tredennick.  Jones  J.  faid,  That  Dc  Communi  Jure  the  Ordinary 
lias  the  Dilpcfal  of  tht  Seats,  and  Dc  Communi  Jure  the  Parifhioners  ought  to  repair  them,  and  fo  no- 
thin"  appears  here  to  ouil  the  Ordinary  of  his  Jurifdiction  ;  for  they  have  only  faid.  That  the  I'arifliior  - 
ers  have  vcraired  at  the  Charge  of  the  Parifh,\vhich  is  no  more  than  what  is  their  Duty  to  do,  and  for 
which  they  have  the  Eafcment  of  fitting  in  them,  tho'  by  the  Dii'polliion  of  the  Ordinary;  whereupon 
the  Prolubition  \Kasdeny'd  by  the  whole  Court.     2  Lev.  241.  Hill.  50&31  Cir  2..  B.  1< .  Greaterchy 

V.  Beardfley. Raym.  24*5.  S.  P.  in  the  iamc  Term  in  C.  B.   itLSilglfp  v.  (Il)Utl?,  where  the  Calo 

was,  as  appcar'd  by  the  Libel,  That  one  B.  being  (djed  of  Land  in  Strctham,  in  161  1.  btdlt  a  flouj'e  upon 
it  and  a  Pfzv  in  t!ic  Church  nt  hii  oni-nCoft  in  ity,,  for  himfe!f  and  bis  Fa>f:iiy,  and  afterwards  (old  Houfe 
and  Pew  to  Chute  the  Defendant  and  his  Heirs;  and  the  Ordinary  iy  Seiiteme  in  the  Eiclefiaftic.il  Court  an- 
'd  the  Pew  to  the  faid  Hoiife    iS'otwithflanding  which  tlie  Cinirchwardens  would  have  pl'ac'd  the  Plain- 


rev 


claim' dior  him  avd  his  Heirs,  he  feems  to  .admit.  That  a  Prohihilion  ivould  he. 

A  Plohibition  was  pray'd  to  the  Spiritual  Court,  where  the  PanflKoners  frefcribed  to  difpoft  of  the  Pews 
exclitf-i'e  of  the  Ordinary.  But  per  Cur^  that  cannot  be  ;  And  the  Orctiuary's  not  aifting  might  be,  becaufe 
tliere  was  no  Occafion  for  his  intermeddling  ;  but  that  cannot  veil  the  Right  in  the  Churchwardens, 
who  are  onlv  a  Corporation  capable  of  Goods,  but  not  of  Inheritance;  Sed  Adjornatur.  i  Salk  16';. 
Hill.  3  Ann£.  B.  R.  Preigrave   v.  Churchwardens  of  Shrcusbury. 

Watf  Comp.  8  Ifa  Layman,bp  tljC  DiflOlUtlOn  OfS^C!na(l£ViC0,has  a  .Monafcery, 
Inc.Svo  -ig-in  ^vhich  is  a  Church,  Parcel  ot'it,  ailBljS  luliers  the  Parilhioiiers  abo'uc 
cap  59.  cues  ^^  Y^^j.^  jg  ^gj^^g  j.jjj,pg  ^^^-Q   |-,g^j  Divine  Service,   and  ijC  himlclf  has 

uled  bp  all  tijut  Cinie  to  have  the  Placing  of  Men  there  in  the  Seats, 

tfje  ©rDinarp  cannot  tiifplace  tljeni,  becaufe  tlje  fain  patron  Ijati  ufcu 
bp  atl  t!j£  Cime  tljat  it  Ijan  been  ufeli  for  tije  parinj  Cljurcl),  to  Ijabe 
tlje  placing  m  tl3C  ScatjJ*   €r,  isja.'B*    iJ«^^r^ 'js  Cafe. 

9.  A  Foreigner,  the'  occupying  Lands  in  the  Parilb,  IliuJl  not  be  tax'd 
Sec  pi.  6.      p^  Reparations  of  Seats  in  the  Church,  becaule  he  has  no  Benefit  by 

them  in  particular.     Per  Omnes,  2  BroNvnl.  10.  in  the  Cale  ol  Glover  v. 

Wcndham. 
Palm.4Z4.  10.  When  Prefcription  for  a  Seat  in  a  Church,  and  Priority  there  alfo 

s.  R.  Carle- jg  claimed  by   Prefcription,  \t\s  triable  in  this  Court  (cj  B.  R.J  by  an 
ron!lNoy    Aclionon  the  Cafe ^  and  not  in  the  Spiritual  Court.     Per  Cur.  Agreed. 
Vg"  s  C  —    Lat.  116.   Pafch.  2  Car.  in  Hutton's  Cafe. 
AllContro- 

verfies  concerning  Seats  in  a  Church  arc  determinable  before  the  Ordirary,  except  where  one  claims  a 
i^cdZ  h\  Prefcriptitn.    Per  Cur.   i;Mod.  401.  Pafch.  12  W.  5.  B.  R.  Anon. 

II.  It  was  fuggefted  for  a  Prohibition,  That  within  fuch  a  Parilli 
there  is  fuch  a  Ciijhm  that  the  Inhabitants  of  fuch  and  fuch  am:icnt  I'au- 
ments  have  fat  in  the  Jirfi  Scat  of  fuch  an  Ijle.^  that  the  Biftop  removed 
them,  and  gave  Licence  to  others  to  lit  there  ;  and  becaule  they  went 
to  try  the  Cu/iom  in  the  Spiritual  Court,  he  pray'd  Prohibition  inafmuch 
as  it  is  an  Idle  Cultom  ;  and  that  where  Courts  held  Plea  lor  an  Idie 
Cultom,  they  lliould  be  prohibited,  and  cited  the  Cafe  of  '©Opfall  and 
JfcrrCrSl.  Hob.  175.  But  'twas  deny'd  ;  and  Pemberton  Cn.  J.  laid. 
That  here  belides  Cuftom,  the  Court  has  Coimfance  of  the  Matter^  Placing 
and  Difplacing  being  in  the  Ordinary,  fo  that  if  the  Cultom  were  out 

of 


Prohibition. 


573 


of  the  C.ife,  yec  they  might  proceed  ;  but  in  '^Topfatl'Si  Cale  thev  pw- 
ceedcd  only  upon  the  Culloin,  which  being  a  i-aiii  nnreafonailc  one,  they 
were  prohibited.     Skin.  7.  Mich.  33  Car.  2.  B,  R.  Anon. 

12.  The  Phiintitf  brought  an  Action  of  the  Cale,  and  declar'd,  That 
he  w'HiSJcijed  of  7,  Seats  in  fuch  a  Part  of  the  Church,  belonging  to  an  an- 
cient Mcifuage,  and  that  the  Defendant  diiturbed  him  &c.  Exception  vv•a.^ 
taken,  ift,  For  that  \\cjhc'ijs  iiot^  Th.n  he  hath  rcp:?rrcd ihd'c  Seats;  I'his 
was  hc:ld  a  good  Exception,  and  that  he  ought  as  well  to  il;e\v  it  in  aa 
Aftion  Sur  Cafe  as  upon  a  Prohibition.  2dly,  For  that  he  preicribes 
that  he  ^\■as  leiied  oi  3  Seats  appcrtaanng  to  an  Hoiife,  whereas  lie  ought 
to  lay.  Of  an  Hoifj'd,  to  'which  the  Seats  were  appertahiiiig.  And  it  was 
faid  in  this  Cafe,  That  the  Freehold  of  a  Scat  may  be  in  One,  tho'  all  the 
Church  belides  be  in  the  Partbn  j  becaufeChurches  are  of  Lay  Founda- 
tion, and  the  Patron  might  at  firll  except  it  i  But  this  Ihall  not  be  tntendtd 
tiukfs  fpcciallyjbcivii.  Slcin.  34.  Hill  33  &  34  Car.  2.  B.  R.  Frccm  v. 
Dane. 

13.  Bill  to  quiet  cue  in  the  PnJJ'effion  of  an  IJJe  in  the  Church,  the  Plaintiif 
having  obtained  a  Decree  belore  the  Ordinary,  w  as  diiinils'd  v^ith  Colts  ^ 
For  this  Court  executes  not  their  own  Decrees  by  a  Bill  without  examin- 
ing the  lultice  thereof,  but  we  can't  examine  if  the  Billiop  has  done 
Right,  nor  will  fuch  a  Decree  bind  his  Succellbrs.  2  Yern.  226.  Pafch. 
1691.  Baker  v.  Child. 

14.  l^hi  Churchivardais  o^  Ludlow  were  libcIPd  againft  for  pn/Iin^r 
iiown  Scats  between  fuch  and  fuch  Ifles  of  the  Church,  and  anciently  be- 
longing to  the  Lord  Prelident  ot  Wales  &c.  without  Leave  of  the  tifhop, 
and  for  eretJin^  iieiv  Seats  there,  and  placing  People  therein  after  Admoniticn. 
6cc.  The  Plaintiffs  ftiggeffiov  a  Prohibition  the  Statute  of  iMagna  Charta^ 
That  no  Man  ihall  be  dilfeifed  of  his  Freehold  &c.  That  ail  Culloms 
and  Prefcriptions  ought  to  be  tried  at  Common  Law,  I'hat  in  the  Pariih 
of  Ludlow  the  Churchwardens,  by  the  Ccnfent  of  the  Parifhioners  t''c.  have 
tfed  to  difpofe  oi  Seats  in  the  Church  &c.  That  they  had  difpofed  of  cer- 
tain Seats  to  the  Bailitis  ot  Ludlow,  which  being  ruinous,  the  Plain- 
tiffs, by  the  Command  of  the  faid  Bailiifs,  pulled  down,  and  erected 
new  Setas  in  the  Place  of  the  old  ones,  notwithllanding  which,  the  De- 
fendant cited  them  into  the  Spiritual  Court  &c.  A  Prohibition  was  grant- 
ed.   2  Lutw.  1032  &1037.  Mich.  4  ^V^  &  M.  Colebatch  v.  BaJdw\  n. 

15.  Prefcviption  lor  a  Pew  in  a  Church  by  Reafon  of  his  Houfe,  Affi- 
davits were  made,  That  he  was  not,  nor  is  an  Inhabitant  there ;  This  is  not 
fufficient,  lor  Poffvffion  only  is  enough  without  living  there.  12  Mod.  40. 
Pafch.  5  W.  ^  M.  B.  R.  Anon. 

16.  It  was  laid  that  anciently  there  were  no  Pews  in  Churches,  but 
only  Forms,  and  that  it  had  been  a  good  Prt/'cription  to  fay  that  Tiiiieout 
otMind  the  Ccrporation  did  repair  fuch  an  Ille  in  the  Church,  Ratione 
cujus  the  /Mayor  and  yildermen  lat  there  ;  lor  tho'  the  Right  be  in  the 
whole  Body,  the  F.njoyment  may  be  and  enure  to  a  lelect  Number.  6 
Mod.  231.  Mich.  3  Ann.   B.  R.  in  Cafe  of  Jacob  v.  Dallow. 

17.  A  Libel  was/cr  two  Seats  in  the  PariJi-Chi/rch  of  King's  Norton  ; 
the  Defendant  pkadtd  that  flie  was  in  Poffcfjion  of  two  Ancient  Melfuages  to 
which\\\oft  Seats  belonged  i  which  Plea  being  rejeiSted  by  that  Court, 
the  Plaintilf  now  moved  for  a  Prohibition,  which  was  oppofed,  for  that 
the  Church  was  A^cw  built  by  the  Parilhioncrs  ;  and  lor  that  Reafon  there 
could  be  no  Prefcription  to  the  Seats,  but  that  they  were  in  the  Gilt  of 
the  Bilhop  fo;  a  Confultation  was  prayed.  The  Plea  tendered  by  the 
Defendant  was  fuch  as  could  not  be  tried  in  the  Spiritual  Court,  becaufe 
they  cannot  hold  Plea  of  the  Inheritance  of  the  Seats,  nor  of  any  Thing 
which  concerns  the  Freehold  ;  fo  the  Prohibition  mull  lland.  8  MocJ. 
338.  Mich.  II  Geo.  1725.  Swetnam  v.  Archer. 

7  F  (H)  J'.inf- 


574  Prohibition. 


(H. )      Jurii4ii61:ion.     Reparation.      \0f  the  Church^ 
unpipe  ecclcfiaftical  Court  \m  Comifance  of  tlje  Reparation 

X     Navis  EcLlclije.    C0»  5-  J^.fenes  (ICafe  67.  KClOlUCO, 
A  Libel  was      2.  Jf  A  ^iltl  COnttlUlCSSj  ailU  inhabics  in  one  Parilli,  and  has  Land  in 
foYvot^.^Ying  another  Parilh  which  he  himleU'occupies  there,  i)C  fljatl  DC  CljargCtl  fOC 

l}thlchZ'i'  tl)is  Lanti  to  tijc  Ecparatton  of  tlje  Cljiirco  of  tlje  \Dmii)  m  luljiclj 
ar,dfor  Books  tijc  iLaiit!  Kf^ ,  Uccauteljc  map  come  tijcre  uitjen  fje  imil,  ano  \)t  10  to 
and  refi-_  jje  cijargcti  III  Ecfpca  of  tljc  lano.  Co>  s-  J^tf^-^y  67.  ilcfoiiieo.  Cr. 
Twhich"  '  '*  ^''^  '^-  -^'^^'■''^'^'0  Cafe ;  per  Curiam*  Contra  <m^  ^o.^^^eu 
Panfh  he    "B,  E.  per  Curiam* 

had  Lands 

in  his  H.inds,  but  ivas  not  <t?;  Irihnhiiant,   iky  }\T.d  any  Hc!(fe  therein.    And  this  being  fuf^gefted  for  a  Prohi- 
bition, Popham  was  at  firfl  ot  Opinion  that  it  was  not  good,  bt;caule   i'ucli  as  do  not  inhabit  within  the 
Parifh  have  no  Benefit  ot"  the  Divine  Service  there.     15ut  upon  flicwing  the  Precedent  of  this  Cafe  of 
Jeffries  v.  Fofter,  and   to   the  Opir.ion  of  which  Cafe  all  tlie  Juftices  here  agieed,  Popham  chang'd  his 

(^pinion.     Cro.  E.  659.  Parch.41  Eliz.  BR.  Paget  v.  Crorapton, S.P.   rclblv'das  to  the  haviiig 

Lands  in   aVill,   and   not  inhabiting  there.     Cro.  E.  S45.  pi.  24.    Trin.   45  Eliz.    C  B    Stephenfoa 

V.  Cafe.' But  in  a  Prohibition  in  B.  K.  it  was  held,  That  no  Man  fhould  be  charged  for  his  Land 

to  contribute  to  the  Church  Recko»i»(^Sy  if  he  doth  not  dwell  in  the  fame  Pa.ijh,  or  unlcfs  he  confents  there- 
to.    Mo.  554   pi.  -49,  Penner  v.  Crompton. 

.S«/ Pafch  8  Jac.  it  was  refolvtd  by  the  whole  Court,  That  for  and  towards  the  Reparation  of  a 
Church,  xhtLatid  of  all,  as  iiell  oi'  Foreigners  tl.ere  i>,haliiting,  as  of  all  others,  is  liable  thereunto  ;  and  this 
i.s  fo  by  the  general  Cuftom  of  the  Place,  and  this  is  to  he  raifed  by  aRate  tmfofed  according  to  the  Value  oftke 
L.rnd,  and  that  in  the  Nature  of  a  Fifteenth  ;  and  this  is  not  meeriy  in  tiie  Realty.  And  by  Williams 
and  Yelverton  Juftices,  and  Fleming  Ch.  J,  it  is  not  the  Land  but  the  Perfon  of  him  who  occupieth  the 
Li-.vd  is  to  be  charged.  Per  Yelverton  J.  A  Man  is  chargeable  for  Reparations  of  a  Church  by  Rea- 
fonof  the  Land,  and  for  the  Ornaments  in  the  Church  by  Reafon  of  his  coming  to  Church.  And  per 
Williams  J.  and  Fleming  Ch.  J.  If  the  Party  have  Land  there,  he  is  chargeable  tor  both,  whether  he 
comes  to  Church  or  not  ;  for  that  he  may  come  to  Church  if  he  pleafe.  i  Bulll.  20.  in  an  Anony- 
rnousCafe. S.  P.  2  Roll.  Rep.  262.  Mich.  20  Jac.  in  Wilmore's  Cafe. 

S  C.  and  3-  But  if  au  Inhabitant  Of  fl  JS'arifl)  leafes  his  Land  which  he  has  in 

P.  cited  and  another  Pariih,  referijing  a  Eent,  Ije  lljall  not  tie  ctjarscn  tuljerc  tfjc 
tT'^'T'^  (S  ^'^"^  J^  I"  i^cfpcct  of  tlje  Kent ,  becaufc  tijerc  iss  a  J^anfijioncr  ana 
and  there-    Juljabitant  luljo  maj?  ijE  djarijeo*   Co.  s-  J^jf^-ytr,  b*  Ecfolijco, 

upon  Pop-      £0,  $  la*  03* 
hamCh.  J- 

chang'd  his  former  Opinion,  in  the  Cafe  of  Paget  v.  Crompton.  Cro.  E  659. -When  there  is  a  Far- 
mer of  Land,  he  fhall  not  be  charged  alone  ;  tor  there  is  no  Reafon  that  a  poor  Husbandman  that  pays 
Kent  for  his  Land,  and  perhaps  to  the  utmoft  Value,  fhall  build  Churches  ;  but  as  it  may  be  unknown 
to  the  Parifhioner  and  Churchwardens  who  has  the  Fee  in  Reverfion,  they  may  for  that  Reafon  impoiis 
all  the  Tax  upon  the  Farmer,  and  he  by  Way  of  Anfwer  may  fay  in  the  Spiritual  Ccurt  that  he  is  Far- 
mer; and  thereupon  the  Tax  fliall  be  divided  between  him  and  his  Landlord,  according  to  the  Rate 
that  his  Land  is  of  greater  Value  than  the  Rent,  and  upon  tiie  Landlord  according  to  the  Quantitv  of 
the  Rent,  Quod  non  fuit  dedidtum.  Qiisre  ;  for  in  3Jlffrif"S  Caff,  5  Rep.  it  is  refolv'd.  That  the 
P'armer  only  is  chargeable,  and  that  Confultation  was  granted,  but  not  for  this  Reaibn,  but  becaufe  tho 
Reverfioner  had  pleaded  an  infutficient  Plea  in  the  Spiritual  Court,  vii.  That  he  was  not  an  Inhabi- 
tant &c.  which  was  not  a  good  Plea,  and  alfo  for  the  great  Delay  which  he  had  ufed,  having  brought  two 
Appeals,  and  after  a  Prohibidon,  and  fo  had  put  the  Parijb  to  60  I.  Erpence  for  the  Recovery  of  6  I.  and  for 
this  Reafon  principally,  and  not  upon  the  Matter  in  Law,  was  the  Cvfultation  awarded;  for  he  had  fur- 
ceas'd  his  Time.     2  Roll.  Rep.   270.  Hill.  20  Jac.  B.  R.  The  Churchwardens  of  .  .  .  In  fuch 

Cafe  the  Tenant  muft  be  charged,  and  not  the  Owner,  and  the  fuggefting  that  the  Lands  were  in  the 
Occupation  of  theTenant,  and  that  himfelf  did  not  inhabit  there,  is  a  good  Suggeftion  for  a  Prohibition. 
4  Mod.  14S.  Trin.  4  W,  ScM.  B.  R.  Anon. 

4-  a  ^au  cannot  be  cljarget,  in  tlje  pariilj  tuljere  Ijc  inlja'oitjs,  for 

Land  which  he  has  in  another  Farilh,  tO  ttjC  lACparatiOil  Of  tljC  CljUrCO  i 

becaufe  tljen  !je  map  be  tloice  cljargcti  i  for  tjc  map  be  cljarsco  for  it 
m  tijc  J^anfij  uHjcrc  tlje  lann  licgi.  \z>.  i6  ja*  x%  E*  %\k-  h.  Bm- 
icr  nganift  jaciJolucrij  anti  {i^roljibition  grantcu,   Co*  5* 

J(§>-ey  67.  _  - 

5*  If 


but  Ije  inhabits   m  another  Pariih,  f)C  CailllOt  fcC  ratCO  tO  tljC  UCpam^  Anouymaus 

tion  of  tlje  COurcij  for  t()ici  ©tantiimj,   9d*  20  ja*  X%  K.  bctuiccii  t-'^^^- 
Hoiiyfies  aiiD  tljc  CljurcfjUiiirPciiQ  of  Kdtcnng  \\\  l^ortfjamptonfliirc  ■■> 
EcfolueHjann  [^roljibmon  urantcD  accormnglp. 

6.  Jf  a  Cltl?Cn  of  LOUQOlt  erects  a  HouC-  HI  tljC  J3arinj  of  !^*  to  The  iz/^r^/- 
dwell  there  m  the  Time  ot  the  Sicknefs  ill  LOltUOIl,  ailD  IjaS  UOt  ailP  f/'?  ^i^' ^^"^s 

lanti  m  tljc  pariflj,  anli  after  Ije  is  aiieis'd  20  s.  for  tlie  Hcparation  t^"^ 

or  tlje  CtJUrClj,  where  others  who  have  loo  Acres  of  Land  \\\  tl)C  filUir  Ciuie  of 


X\)Z ^. ,  .^  ...v..  ^„u.  .. 

s  Ja,  06.  g)ir  i?./:cT.  ues  cafc,  pec  cunani.  ^-^^  •  c:".r„" 

.         r     n      ,7  ■  7  7  ^''^  t'aiifh, 

that  the  Panpionerj  otwht  to  be  rated  according  to  the  Value  of  their  Sheef-walks,  and  mt  of  their  Farms  or 
Hcu.'es.     2  JKoll.  R  4155. 

7*  3if  tijete  tie  a  Chapel  of  Eafe  \\\  a  liParidj,  and  fome  Part  of  the  A  Libel  was 
Parifhhave  uied  ClUie  lUijetCOf  $l3emorp  ^tC.  alone,  without  others  Of  r^;"'"'^  ^'^^ 
tljC  l!?anfljlOnerj5,  torep.iirtheC'upeiOf(£afe,  and  there  to  hear  Ser- ^f  3   ™, 
vice, and  marry,  and  do  all  other  Things,  but  OlllP  tIjCU  bury  at  the  Mo-  in  the  Parifh 

ther  Church,  pct  tOep  flji"!ll  itot  bc  oifcuarueQ  of  tlje  Ucpavation  of  tljc  "f"A  /.r//.^ 
i^otljet  Cl)arcO,  Imt  ougijt  to  contribute  to  \x ;  foe  tlje  COaprl  lua?  ^'^"'^  "< 
oruamen onij) for tljcic €ai,c.    ^.  13  3a.  %,  bctujecu  tlje  UJ^arncnsi cHrTt 

f^fyJJbton  ailD  tlje  Juijabltaut^  of  C//?/^  Bmnage,  JpObaCt'jS  }3^.tWt^9i.f>,ggefted  ' 

that  they  had 
in  B.   a  Ch.Tl'Cl  Parochial  and  Parochial  Rites,  and  that  they  repair  their  civn  Chapel,  and  that  Rat/one  ir.de 
7ime  cut  of  Mind  tley  haie  been  difcharg'd  of  the    Repair  of  the  Parochial  Chttnh  of  .4.     The  Court  grant- 
ed a  Prohibition,  and  ordered  thePlaintifls  to  declare,  who  declar'd  that  they  had  in  B.  a  Ch.ipel  Paroclii- 
al  or  Chiirch  of  B.  within  the  Parifh  of  A.  wliereTime  out  of  Mind  have  been  aBodv  of  ;i  Church, Chan- 
cel, Bells,  aid  all  other  Parochial  Trophies,  andDivive  Seriice  and  Sacravtents,  and  a  dijli/.cl  PeramLnlation  of 
B.  and  A.  feverally.     And  that  the  Inhabitants  of  B.  nezier  luerit  to  the  ChurchofJ.  nor  haze  tley  any  Seats 
there,  and  that  they  have  dilHnct  Churchwardens  ;  and  make  no  other  Ufe  of  the  Church  or  Churchyard  of  B. 
but  for  Burial  only,  and  that  Timeout  of  Mind  they  have  repaired  their  Parochial  Chapel  of  B.  and  the 
Inhabitants  of  A.  have  been  exempted  froin  that  Gharf^e,  and  Ratione  inde  the  Inhabitants  of  B.  have 
Time  cut  of  Mind  been  difcharged  from  repairing  the  Church  of  A.  and  yet  have  the  Defendants  li- 
bell'd  a;^a!nll  them  to  repair  it  &c.     The  Detl:ndants  demurr'd  ;   it  was  infiftcd  for  the  Plaintiff,     ift. 
That  a  Prefcription  generally,  without  flicwing  any  CiuCe  to  exempt  them  from   Repair  of  the  Parirti 
Church,  is  not  good  ;  for  of  common  Right  every  Parifliioner  is  liable  to  it.     zdly    As  to  what  is  faid 
that  they  rep.lir  their  own  Parochial  Chapel,  that  cannot  be  a  fufficient   Caufe,  becaufe  it  is  for  their 
ov.n  Eafe;    a-id  therefore  cannot  difcharge  them  from  what  they  are  liable  to  of  common  Ri"-ht.     ;dly. 
If  there  is  any  fuch  Cnftom,  it  might  bepleaded  in  the  Spiritu;;l  Court ;  and  this  by  the  expreii  Words 
of  the  Statute  CircuTifpefte  agatis,  viz..  He  EcclefiadifcoopeV'ta  vel  C'.rm-iierio  hot  claufo  non  j.icet  Pro- 
hibitio.  It  was  admitted  on  the  other  Side,  Tliat  a  general  Prefcriptio'i  to  be  di'cliarged  from  Rcpairi.io- 
&c.  is  not  good;  but  here  is  a  good  Caufe  fhewcd,  (viz.)  Want  of  Scats  in  the  Parochial  Church,   and 
not  gcing  thither,  unlels  to  bury;  and  this  might  have  a  realoniible  Comjnenccment,    as  by  an  Agree- 
ment upon  the  multiplying  the  Houfes  in  the  Parifh,  and  it.s  growing  more  populou.;    IJelutes,    Here  is 
a  Cufloni  alleg'd  ;  and  tho'  the  Repairs  of  Churches  is  exprefsly  within  the  Statute  ('ircum'pecte  ao-atis, 
yet  when  a  Cuftom  is  in  Queftion,  it  is  a  Temporal  Matter,  and  mu(f  be  tried  in  the  Temporal  Courts, 
becaufe  their  Law  and  the  Common  Law  differ  in  the  Eflencc  of  Cuftoms  ;  and   theCotirt  was  of  this 
Opinion,  fo  adjudged  that  Prohibition  lies.    And  the  Court  adviled  the  Defendant  to  take  lll'ue  upon  the 
Curtom      a  Lev.  iSd.  Hill.  2S  6c  29  Car.  2.  B.  R.   Wife  v.  Creeke. 

8.  So  in  tijc  fain  Cafe,  if  tljc  Jul)abttant0,  tul)0  ufc  to  repair  tljc  O^*^^^ 

Cljapel,  piekribe  that  they  ClUie  UlljClCOf  CQCUlOtp  qtC.  have  us'd  to  /^^L^ 
repair  the  Chapel,  aUtl  Ratione  inde  have  been  difcharged  of  the  Repa-  nb-Uva^ 
ration  of  the  Mocner  Church,   yet  tljlS  (l)all  tlOt  tltrdjargc  tljeilt  Of  tIjC  fl-  Repairs  of 


bition,  nat 
id 


they  are  a  Parochial  C'rapel  in  artother  Par/jh,  and  that  the  [nhabitants  of  tie  Cl-apelry  hai-e  'fime  cut  of  Mit. 
had  a  Parocht-'l  Chapel,   and  Divine  Service  and  Sacraments  8cc.  and  have  nfed  lo  he  exewpted  from  the  P.c- 
]'air  of  the  Parochial  Cliuvch,  Bells  £cc.  /;;  Conftderatim  that  they  hove  been  iharged  to  the  Repair  of  their 


576 


Prohibition. 


cwn  Ch.ipel,  and  that  they  have  repaired  the  fame  &c.     And  the  Prohibition  va-.  granted.    ;  Lev.  ir.j. 

Pafch  i6  Car.  2.  B   R.    Brown  v.  Palfry. 3  Keb  2S6.  525.  S.G. By  Reafon  ot  Repairing  a 

CIiJiK-1  ofKafe,  that  he  ha.l  b,-cn  Time  out  of  Mind  exempted  from  contributing  towards  the  Repairs 
of  the  Church,  wa.s  lield  a  good  Prefcription.  Frecm  Rep.  41SS  pi  644.  Triii  16:8.  VVile  v.  Green. 
A  Prol>ibiuon  wa.s  moved  for  The  Likl  was  for  Rntcs  toivnrds  the  Rep.iir  of  a  Church;  it  wa.sy/<^»fy?- 
e,i  that  they  hail  ta'A  to  re}>,rir  a  Chafel  a  Ternpoye  ctijiis  &c.  but  fo«fmuch  a.s  they  had  not  /illegci  it  to  be  a 
Ch.il'e/  that  h.id  all  Parcchi.il  Rites  the  Prohibition  was  denied  ;  for  if  but  one  is  omitted  {m  Burial)  no 
Prohibition  fliali  go,  and  therefore  tliey  were  advifed  to  amend  the  Suggelfion.  Comb.  152.  Trin.  i 
\\.  6c  M.  in  B.  K.   Hullcy  v.  Calfock. 

9.  jf  tljS  Chnpel  be  3  Miles  diftant  from  the  Mother  Church,  auU  tIjC 
Inhabiu.iins  who  us'd  to  come  tO  ti)C  Cf)ilpCl  l)illl€  us'd  always  to  repair 
the  Chapel,  and  marry  and  bury  there,  and  never  within  60  Years  were 
charg'd  co  repair  the  ixlother  Church,  PCt  tljl3  10  llOt  ntlV  CaUfCtO  iK^je 

}5iC!i)roitiaH,  but  ti)tp  fliujljt  to  ihew  m  tljc  ^picnual  (Court  their  Ex- 
empcKMi,  it' tijCD  OtWE  iiuP,  upou  tljc  €nuatDuicnt.  Ml  8  Cnr.  'B*  H» 
15cr  etiriiin!,  proljtbirfoji  nemen,  it  mm  uiaiicti  b)>  iT0r.  s-outlj* 
Sec  (K )  p'.     10,  3,f  a  ^?^a\\  tie  fueo  ui  tOe  ^pirtttiai  Court  for  ixcparatiou  of 

5.  contra.       ffjC  CljUtCi),  ItO  i^rOijlblttOU  fljaU    {JE  IjrantCD  upon  a  Surmile  that 
other  Perlons  ha\e  Land  within  the  PariUi,   who  ought  to  be  charged 

iDitl)  tIjC  Eeptiratton  of  tIjc  Cijurc!)  as  meU  ns  \mk\f,  anis  arc  not 
£lj.irn:EtJ  untfj  it ,  for  if  tljis  be  true,  it  10  a  n;c!Oti  pica  tijcre,  auQ  if 
tjjip  bo  not  aiio^ii  it  ijc  cugijt  to  appeal.    Cr*  9  Car,  Id.  11  bctluceu 
per  Curiam,  aiiQ  j^roijibitian  tJemcti  acicrsiuglp. 

See  pi."  and       1 1.  Jf  tt)^  Men  inhabiting  in  a  Chapelry  prclcnbe  to  be  dilchargefl 
s  in  tiie        i^iwic  lubcreof  iT3eniOrp  of  the  Reparation' ot  the  Mother  Church,  niiD 

^°'""       tljei)  arc  fucD  for  ncparatiou  of  tljc  ©otijcc  CijurcD,  a  jp)ro!)iLution 

lies  upon  this  Surmiie.     Mart'3  ECpOtt^  92. 

1 3.  A  Libel  was  lor  a  Rate/tr  Repairing  the  Church.  The  Defendant 
fiigpejted^  ift.  That  his  Lands  "daere  ovcr-valtid^  viz.  100  1.  per  Annum. 
Avhcn  they  were  worth  but  60  1.  2dly.  That  there  was  a  Cuftom  in  the 
Parilli  that  they  ought  not  to  he  r:ited  after  the  Value  of  their  Houfes  and 
Lands,  but  only  according  to  the  Value  of  their  Shecp-W -AV.?,.  As  to  the 
firll,  all  the  Court  except  W'hitlock  refolv'd,  that  the  Rates  ought  to 
he  according  to  the  Value  of  their  Lands  ;  and  therefore  the  Valuation 
thereof  properly  belongs  to  themfelves ;  and  the  Church  being  the 
Houfe  of  God,  a  Cultom  in  Prejudice  of  the  Repairs  thereof  is  void, 
for  of  common  Right  Houfes  and  all  Lands  are  chargeable  to  it.  And 
the  Court  ordered  him  to  fuggelt  the  Cultom,  and  omit  the  Value,  and 
then  they  would  conlider  whether  a  Prohibition  ihould  go.  2  Roll. 
R.  463.  Mich.  22  Jac.  B.  R.  Holland  v.  Kirton. 

13.  It  was  fuggelled  for  a  Prohibition,  That  there  was  a  Cuftom  in  the 

Parilh   that  the   Parilhioners   Ihould  be  rated  towards  Repair  of  the 

Church,  fo  that  fuch  Tax  be  in  Proportion  to  the  'fax  Pro  Domino  Rcge  i 

and  that  the  Tax  there  for  his  Lands  to  the  King  was  hut  zs.   and  yet 

he  was  rated  to  the  Church  5  s.  Per  Cur.     This  a  Spiritual  Matter,  and 

ought  to  be  tried  in  the  Spiritual  Court.     And  fo  a  Prohibition  denied  i 

but  if  any  Thing  is  offered  in  Proof,  which  is  allowable  by  our  Law, 

and  they  will  not  allow  of  it,  in  fuch  Cafe  a  Prohibition  Ihill  go.     Be- 

lides,  it  is  not  Jbewn  ivhat  Sort  of 'Tax  this  Tax  Pro  Domiiio  Rege,  which 

he  mentions,  is  i  but  it  is  utterly  uncertain.     And  aherwards  a  Con- 

fultation  was  awarded  by  the  whole  Court.     Lat.  217.  Pafch.    3  Car. 

Longmore  v.  Churchyard. 

".  P  and  14-  In  a  Prohibition  it  was  the  Opinion   of  the  whole  Coi::t,    That 

fcems  to  be    if  a  Chtirch  be  fo  much  out  of  Repair^  that  it  is  neceffary  to  pull  it  do^^z^it^  and 

^^'f^^^^      that  it  cannot  be  otherwife  repaired,  then.,  upon  a  General  Warning   given 

Anon^  A^-d    to  the  Parifhionens,  ?/7f  w/rt/'or  Pi^r?  of  the  Parifliioners   then  meeting   ac- 

there  it  is      cording  to  fuch  Notice  may  make  a  Rate  jor^nWm^  down  of  the  Ciiurch, 

faid,  Thatin  and  Building  of  it  upon  the  old   Foundation,  and  for  making  o^  Vaults 

Cafe  of  a       •yvherc  necelfary(as  they  were  in  this  Church,  bv  reafjn  of  the  Spring- 


ing 


Prohibition.  577 


Ing  Wuter)  And   though  the  Race  be  higher  than   the  Money  paid  Ibr  <-iiarch's 
doing  aJl  this,  yet  ic  Ts  good,   and  the  Churchwardens  are  chargeable  ^,'"^'"|f  J°    r 
for  the    Overplus,     they  not   being  able   to   compute  to    a  Shilling.  Kcpa^ir"dic 
And  that    if  any  of    the   Parithioners    refule    to    pay  their   Propor-  iliniop's 
tion  according  to  the  Rate,  they  may  be  libelled  againlt  in   the  Spi- ^"^»t"i^'t 
ritual  Court i    and  if  the  Lil^el  alleges  the  Rate  to  Ue  Pro  Reparatio>ie  l^m^^  ^' 
Kcjlif£  generally^  tho'  in  Stridnefs  AVf/ty?^?  contains  both  the  Body  and  wliolcParifH 
Chancel  of  the  Church,  yet  by  the  Opinion  both  of  the  Court  ofC.  B.  to  have  it 
and  of  the  Exchequer,    \z pall  be  intended^  that  the  Rate  was  only  for  »'^P3>''e'l ; 
the  Body  of  the  Church  ;  But  in  this  Cafe  it  was  made  appear  clearly,  that  fcf  ^'^-^h*'^ 
the  Rate  was  only  tor  the  Body,  and  that  the Minillcr  was  at  the  Charge  dow'"/aiid°* 
of  the  Chancel.    And  both  Courts  agreed.  That  when  a  Prohibition  h  the  Purijh 
moved  and  defired,  on  Purpofe  to  Hop  fo  good  a  Work  as  the  Building  '"t"eiifed,Jo 
a  Church,  the  Court  ivill  not  compel  the  Parties  to  take  IJfiie  upon  the  Sug-  '*^'  "^ j^^' 
gejtton,  when  upon  Examination  they  find  it  to  be  falle,  and   therefore  mtillhdiiea 
will  not  grant  a  Prohibition;  For  if  the  Rate  be  unduly  impofed,  the  hrger 
Party  grieved  hath  a  Remedy  in   the  Spiritual  Court,  or  may  appeal  \i  Ch-.ych,  the 
there   be  a  Sentence  againft  him.     Afterwards    the  Court  of   B.  R.  ^-^1°''  ^"""^ 
was  moved  for  a  Prohibition  in  this  Cale,  and  it  wasdenied.    So  that  in  Paiifh  mav 
this  Cafe  there  was  the  Opinion  of  all  the  3  Courts.  2  Mod.  222,  223.  raiib  a  Tax 
Pafch.  29  Car.   2.  in  Scacc.  St.  Mary  Magdalen  Bermondfey  Church  in  for  the  en- 
Southwark.  ^■^'•g'"S  'f. 

as  v.ell  as 
t!ie Repairing  it,  and  that  the  Conrent  of  every  Pariihionef  is  not  nsc:;iLijr, 

15.  A  Z/^f/was  in  the  Ecclefiaftical  Court  of  Hereford  again ff  the  Parfon 
Impropriate^  to  repair  the  C^(7»«/of  Bradwarden.  Upon  a  Stiggeftiori^  That 
cue  J.  S.  had  o-'Seat  there  Time  out  of  Alia  d  for  him  and  his  family,  and 
Privilege  of  Burial  there,  and  that  he  Time  out  oj  Mind  had  ujed  to  repair 
the  Chancel,  a  Prohibition  was  granted,  becaule  this  is  a  Prelcriptioa 
triable  at  Common  Law.  Ereem.  Rep.  300.  pi.  360.  Trin.  1681.  C.  B. 
Anon. 

16.  The  Plaintiff  being  y?/<;c^  in  the  Ecclefiaftical  Court /oi-  Repairs  of 
the  Church  fuggejied,  T'hat  he  had  built  an  Ijle,  and  repaired  it  at  his  o-ivn 
Charges^  and  moved  tor  a  Prohibition.  Cur.  unlefs  it  be  fuggelted.  That 
he  fits  in  the  Ifle,  and  hath  no  Eenejit  of  the  Na-ois  Ecclcjt£^  there  is  no 
Caule  tor  a  Prohibition,  for  a  Man  may  build  an  Ifle  for  his  Conveniencv. 
Freem  Rep.  301.  pi.  363.  Trin.  1681.  C.  B.  Weeks  v;Oxenden. 

17.  Prohibition  was  prayed  to  the  Conlillory  Court  of  London,  be- 
caufe  Suit  there  was  againlt  the  Mailer  and  W^ardens  of  the  Compan\-  of 

for  a  Tax  impofed  upon  the  Hall  of  the  faid  Company  tor  the 

Repair  of  the  Parilh  Church  ;  And  it  Wiisfaid  that  the  Tax  iinoc  impofed 
upon  them  in  their  N".itural  Capacity ,^  but  upon  the  Lands  of  the  Body 
Politick.  Per  Cur.  a  Prohibition  fliall  notilfuci  For  tWo,  Land  of  xht 
Company  are  chargeable  to  the  Repairs^  and  the  Spiritual  Court  (who  has 
the  Conufance  ofthe  Matter)  has  no  other  Procds  than  Cifaiion,  which 
cannot  be  executed  upon  an  Aggregate  Corporation,  which  is  not  vilible 
in  Law  ;  Ergo  the  Citation  of  N'eceffity  ought  to  i[Jue  againft  the  Officers  of 
the  Corporation^  to  whom  it  belongs  to  pay  the  Ta)c,  and  Allow  ance  may 
be  made  to  them  upon  their" Account.  2  Jo.  187.  Hill.  33  &  34  Car.  2, 
B.  R.  Thunsfield  v.  Jones. 

18.  Libel  was.  That  the  Church  and  Chancel  o^T).  -were: out  of  Repair,  ]r^}f^  ^'* 
and  that  the  Churchzvardens  made  a  Rate  upon  the  Inhabitants  fur  the  Re-  of  Piicc  v"^* 

parattcn  of  Ecth^  and  that  they  accordingly  had  repaired  Both^  andbcauti-  Roulc * 

Jied  the  fame  initb  Ornaments.     It  was  fugge/led  ior  a  Prohibition,  That  of  Salic.  16  j. 

Common  Right  the  Chancel  fliould  be  repaired  at  the  fole  (Charge  ofthe  ^  ^  ^Y 
Parfon  i  And  that  Rates  for  Repair  of  a  Parijh  Church  fhould  be  made  by  p;",![^°_ 

the  Panfhioners,  or  the  Major  Part  of  them,  and  not  by  the  *  Churchwardens  Prouic . 

alone.     Andby  PJok  Ch.  f.  by  the  Civil  and  Canon  Lav.' the  Parfon  is  5  Mo'i- "59- 
obliged  to  repair  the  whole  Church,  and  it   is  fo  in  all  Chriltian  King-  S'^'''"^.'' 
doms  but  in  England ;  For  it  is  by  the  peculiar  Law  of  this  Nation,  that  ^i^^,^.*  j|"^ 

7  G  the 


578 


Prohibition. 


forrhl?L  V^^  Pa"^'oners  are  charged  with  the  Repairs  of  the  Body  of  theCharch- 
cicntC:uftom  ^I'l'^'^f ','•"'  '', °"^  ^""'"'^  ^^"^  ^«  ^^^11  tbr  repairing  the  Chancel  to' 
in  the  lUid  *^"^""  '^''x^  rardhioners  are  not  liable.  As  tbr  Repairing  the  Church  to 
Parifh.Tlnit  which  they  are  liable,  fo  asit  can't  be  diftinguilhed  howmuch  wasairelTed 
the  Adorn-  towards  the  Repairs  of  the  one,  and  the  other  feparately^  And  for  thefe 
fil  oAhc'  ^^=i^""sji  Prohibition  was  granted  generally  to  the  whole  Suit  upon  this 
Chancel  had  fr^.^^5  though  It  was  very  much  inhlled  on  the  other  Side,  that  the  Pro- 
been  done  by  hi  bin  on  might  go  Quoad  the  Rate  tor  Repairs  of  the  Chancel  only 
the  Church-  Curth.  360.  Mich.  7.  VV^  3.  B.  R.   Hawkins  v.  Rous. 

V  ardeiis  at 


the 
Co 


;  Charge  of  the  Owners  and  Occupiers  of  Houfes  within  the  Parifli  by  a  Kate  to  be  midc  with  the 

Ch  nee  wa!  r  i  k  ^"      "  °' ''".  n  '  ''^°"'"  ''^F  ''"'^^'^  '"'^"^  annua/ Value  of  the  Houl  s,  Ti  at  the 
l^hancel  wanted  Reparations  and  Ornaments,  and  that  the  Clnirchwardcns  with  Confent&c  made  a  Rate 

raid   Panfh   VhH''     ''^".'"p'^  the Z).y.„..„,  ...  ,.,.^  , ,  ,  ,  ,  ^„.  Ml,  .,W   «.f;;,Tithtn  t  L" 
aid   1  aufh,  which  was  his  due  Proportion  according  to  the  yearly  \\ilue  of  the  Houfes  there     and  that 
he  l,ad   not  paid  the  lame.     Tlie   Defendant  denied 'the  Cuftom,  which  was  found  for  the   Phiat  ff 
but  for  tlie  Defendant  it  was  found,  That  the  Rate  was  not  made    by  the  Major  Part  of  Parifhionm 
1  cr  L,unam,  ^,thc^t  ^ /pedal  Cuftom  the  Parifimiers  are  mt  Urepair  tie  Cha:Kel ;  the  Parfon  is  bound  to  do 
at  of  common  R.ght,  h^t '■^here  a  Temporal  hheritame  is  to  be  charceA  by  a  p.rrtin.l.n  Cuftom     t' -  Chrkh 
ii_ank,u  ,m,/f  hnr.fr  the  Defendant  -withtn  the  Cuftom,  otherwife  it  is  not  good  :  For   it   is  the  Cultom  rhtr 
gives  the  Jurifdidion;  Now  in  this  Cafe  theduftom  was  alleged  for  Owner    of  Houfes    or;  pair     and 
they  have  rated  the  Defendant,  as  Owner  of  a  Mill,  which  cannot  be  intended  a  Hou"     ForTn  a'Pr^ 
cipequod  reddat,  a  Mill  cannot  be  demanded  by  the  Name  of  Domus,  but  it  mull  be  De  Moleudino' 


;n„fi^  <l7r^' o  ^}'iy^''^  ^■'r  T  ?^y'"f5  ^  ^^^^  "'^^^  ^y  ^'^'^  churchwardens  only,  and  this  bt- 
l,y  Riggefied  for  a  Prohibition,  and  that  by  the  Law  the  Majo^Part  of  the  Parifl.  muft  join     It  was  Sd 

S  iThV-  ,^w  ^''^^^f  "°  -f  °r  '^J-"^  ^"''^"^  ^•''"'^'^  ''""  "•?^'^'^'- ;  T''  v.hich  it  was  iiid  by  the  Coun- 
fel  foi  the  Prohibition,  That  if  that  did  appear  it  would  be  fomething.  Mod  79.  Mich    •'zCar  ^   RR 
^"°V-7^  S.  P.  per  Cur.  Vent.  367.  Trin.  55  Car.  B.  R.  Thursfield%.  [ones  ""         ' 

i  lie  spiritual  Court  may  compel  the  Parilhioners  to  repair  their  Panfli  Church  if  out  of  Repair  antl 
may  excomvnwicate  e^ery  cnetHl  ithe  repaired,and  fuchas  are  v,  illing  to  contribute  muft  be  abfolved  til'l  the 
greater  Part  of  them  agree  to  adefs  a  Tav,  but  the  Court  cannot  alTefs  thennowards  it  Per  North  ChT 
to  which  the  others  agreed,  And  that  the  Churchwardens  cannot ;  For  none  but  a  Parliam-nt  can  im  ' 
pofe  a  Tax- ;  but  the  greater  Part  of  the  Parifh  may  make  a  By-Law,  and  to  this  Pu  poTe  hev  are  a' 
Co  porat.on  5„, ,/  .  Ta.  be  Ulegally  impofed,  as  by  a  t  Cornn^on  fro^  the  Bijlop  to  the  Par  "on  and  fome 
of  the  Parifbioners  to  affefs  a  Tax,  yet  if  it  be  ajfe.ted  to,  and  confirmed  by  the  i.,jor  Part  ofthePa,To 
rers,  they  in  -the  Spiritual  Court  may  excommunicate  fuch  as  refute  to  pay  it.  Alod.  104.  H,      26  F-., 

Car.  2.  C.  B.  pi  25-  Rogers  v.  Davcnant. S.  P.  And  t  a  Prohibition  was  granted  to  a  Libel  for'a 

Tax  made  by  fome  Parifhioners  by  virtue  of  a  CommilTion  from  Dr.  Exton  the  ChanceUor  of  I  n-^^.n 
becaufc  that  Way.  of  Taxation  by  Commiffioners  isagainftLaw;  And  thou  J^fthe  Spin  ulL™^^ 

Re7'.si"^":'?'T;rT'''V^'',:  y^;  they  cannot  comntute  Commiffi^oner.  to'^makeone  F  ee"f. 
Rep.  2Sd,  pi.  550.  Hill.  1674.  Anon,  but  fecms  to  beS  C.  —  S.  P  2  Mod  -^-    P^Cch   -n  Pn.  ,   ;    ,V 

Exchequer  by  North  Ch.  J.  faidit  had  been  lately  ruled fo  in  C.  B 's  "p  b.  Holt'ch  T   i .  MM 

52S.  Mich^,2  W^  5.  and  that  the  Spiritual  Court  may  excommunicate  foi  not  Meeting  a^m  kin.  a 
Rate  ;  And  that  though  one,  who  fues  in  the  Spiritual  Court,  or>.ts  ,n  hU  Libel  l^^f^at^^M^Ltd 
w^^e-rWK.;;  as  w_as  done  1,1  the  principal  Cafe  there,  vi^.  That  the  Rate  was  nude  bv  tho  Com- 
miflloners  of  the  Ecclefiafiical  Court,  yet  /%  of  the  other  Side  may  fuggeji  •; .  ' 

Church-  °f  J^^^"":^^'  ^"d  fuggelted  tor  a  Prohibition,  that  all  Parifli  Rates  were 
wardens  of  to  be  by  Majority  oj  Paripimers  ;  and  that  every  Rate,  after  it  is  col- 
Hobleton.     lefted,  becomes  void  ;  and  that  this  Rate   was  not  by  a  xMaioritv  &c 

IJprint'ed,  ''"'^ '^r  ''"S^^''  "'o'  'V^^  'u''  ^"  P^^l^^^nce  of  an  oUrL  colkcfcd 

and^ftould  ^"^"y^^^^lHore     Per  Holt,  here   the  Suggellion  recites  an  antienc 

be  156.  and  R^te,    Which  they  lay  was  to  be   a  Standing  Order  for  all    Times 

is  Cham-  JO   come  i    And   that   they  have  confirmed  that  P.ate,   and  that  the 

fc?  V^}  '■  f°''^^^"'>of  a  New  Payment  according  to  it,  and  cited  Noy.  *i  3  r. 

greed  in  V    c  '"  ^""'Ta  ^°'  ^  Prohibition  in  this  Cale,  and  faid,  That  all,  that 

both  the  ^^'^  Spiritual  Court  can  do,  is  to  make  an  Order  that  the  Church  be 

Cafes  that  repaired  but  not  to   J[[efs  a  ^tantim.    A  Prohibition  was  granted.    12 

no';  gJoTto  °'^-  3^7,  328.  Mich.  1 1.  W.  3.  Blank  v.  Newcomb. 

Mul'^fliln  bi'kviei^'''  " ""''  ^"'"^  ''"'''"  ^'■*  ^'^'  '^^' "  '^  Sood  by  way  of  Diredion  How  and  How 

(I) 


Prohibition.  57p 

(  I  )     Reparation     \Chapel  of  Eajc.~\ 
I.  T  JF  tijcte  lie  a  J^arocljuil  Cljtirdj,  mm  a  Cljapd  of  eafe  fn  tI)E  ^■''/"''  ?'■ 

1   tlje  fame  Jit)iU-lRj,    mitltljC  Chapel   ol"  Eaie  had    liinc  whereof  ^oy  41. 
Memory  ull  Spincual  Rites   except  'Buttal  ailD  tljigi  IjaS  UrcO   tO  Ue  Cliurch- 
UOne  in  tljC  CljUl'Cl)  [^arOdjial,  and  becuule  they  who  h;ivc  uled  to  go  warden  of 
totheChiipel  ol  Eiile,  have  uled -^CtmC  OUt  OUt  Of  03(110  ti)    repair  ^l  ^|j"*'^5^'*^_ 
Part  ot  the  Wall  of  the  Chtirchyard  of  the  Parochial  Church,  fliltl  III  COU  portV  that  b/' 

fiticcation  tijercof,  anO  bccaufe  tljofcuiijo  avc  oftljc  COapel  of  eafc  the  bitter  o- 

1  of  the 


ption 

tljcre  iftt)cp  arc  fuctim  tijc  ^pintuarcourrto  rcpau-  tl)c  [i^aroclnal  good  7Vor  \ 
CJjurci),  ai^roijiL/ition  licjs.  Cc»  15.  :ja,  15.  E*  bctiuccit  tl)c  Jnl)aln=  t'"-'  ^^^^^f 
U\M^m\3m^)iitstyattord,  fluti  tljc  Jtiljabitaiit^  of  tbc  Cljapcl  ofi°"^bca 
Cafe  of  Luddmgtin,  proljtbitioii  grantet),  ann  tljcn  toasi  fbeuin  a  I3rc^  oif-eaie  to- 
ceCent.  p. 44.  d  Eot*  41 7.  bcttucen  Mu-jhaii  and  Aikky.  i^roljiUition  tiie  reft  of 
cranteo  for  tlje  Cijapcl  calico  Dcusjcrd  againft  tijc  parifij  caitco  'l-e^P''- 

ham  faid,  That  the  Jjfent  is  vot  recjuifite  to  build  a  CLipel  ofEa/e;  and  then  the  Ordinary  and  the  Parifh 
cannot  charge  the  Panniioners  with  greater  Charge,  yet  now  it  was  order'J  that  a  Prohibition  be 
granted,  and  that  Defendants,  if  they  plcafe,  might  demur  upon  it.  And  cues  5  Jac.  B  J',  a  Derbyfliirc 
Cafe,  where  a  Prohibition  in  (uch  Cafes  was  denied 

The'  a  Man  &c.  Time  cut  of  Mind  has  repaired  a  Chapel,  yet  if  it  be  not  a  Preiiial  Ch/rpi'l,  having 
Chapel- Wardens  belonging  to  ir,  'tis  no  Reafon  to  exempt  hiin  from  a  Churcii-Kate  to  repair  ;  and 
if  he  repairs  lefs  than  lis  Prcpttion,  it  may  be  a  (^eftion,  If  it  ought  to  difcharge  him.  Per  Holt.  Vixv, 
12Z.    Hill.  I  Ann.  B.  R.  Anon. 

2.  Jf  a  Capelof  Eafe  has  ufed  a  'CClUpOrC  $C»  to  Have  all  Sacra- 
ments except  Burial,  and  the  Inhabitants  Ulltljlll  tljC  CljapCl,  alfO  al- 
tDap0  ijalie  repaired  the  Chapel,  flUO  prefcribe  in  Conlideration  of  3  s. 
and  4  d.per  Annum,  paid  for  Reparation  of  the  Mother  Church  to  be 

difcharged  Of  t\)Z  Ecparatloit  Ot  tljc  S^otljct:  Cl)urc!j»  3if  tlje  Jnlja-- 
ijitantjs  of  tfjc  Cljapcl  are  fueo  for  Reparation  of  tbe  ^otljcr  Cljurclj 
a  j^roljlbttion  licsi  upon  tb!0  eectiujs*  p.  i  u  Car.  id.  E.  bctuiccn 

Penudand  and  Toje  J^^^rOljibltlOn  SraUtCO.  Goofey  Uia£i  t!)C  CljapCi,  auD 
Standfcyd  tljC  ^OtiJCt  CljUrCl)  Ut  tijC  COUltt^  Of  lotX^^.  'Zt,  1 1.  Cat. 

13*  E.  in  tSjC  fame  Calc  tl}c|3rol)tbition  coufirnico,  ano  orncreo  ta 
be  tricD  at  tije  nejct  aiTifesi.  OSut  $^tci).  1 1  Car.  a  Confultation  lua^ 
BranteO  m  tijls^  Cafe,  becaufc  tlje  laroljibiticu  luad  arantco  alter  Sen- 
tence in  the  Spiritual  Court  that  there  was  not  any  fuch  Cultom 

3.  The  Inhabitants  of  a  Chapelrj,  ivitbin  a  Partp  were  libelled  againfl 
for  }iPt  p'^J!>'g  tcwa;-ds  repairing  the  Pcirip  Church.  The  Cale,  as  appeared 
upon  the  Libel  was,  the  Inhabitants  of  this  Chapelry  had  never  hitherto 
contributed.,  but  had  akjoays  buried  in  the  Aiother  Church,  till  H.  Sth's  Time, 
/when  tkeBiJhcp  ccnfecrated  a  B/trial- Place  for  them ;  in  Conftderutim  -d^ hereof 
they  agreed  to  pay  towards  the  Repairs  of  the  Mother  Church.  It  was  held. by 
HoItCh  J.  That  by  the  CommonLaw,  the  Parilhioners  of  every  Parilh 
are  bound  to  repair  their  Church  i  But  by  the  Canon  Law,  the  Parfon 
is,  and  ibitis  in  Foreign  Countries.  In  London,  the  Parilhioners  repair 
both  Church  andChancel,  though  the  Freehold  is  in  the  Parlon,  and  it 
is  Part  of  his  Glebe,  for  which  he  may  bring  an  Ejeftment.  In  the  prin- 
cipal Cafe,  thofe  of  a  Chapelry  may  pre'fcrile  to  be  exempt  from  repairing  the 
Mother  Church,  as  where  it  buries  or  chrijicns  within  it/elf,  and  has  nenter 
<-o/;rnZ^«;frf  to  the  Mother  Chulch  ;  For  in  that  Cale  it  Jhail  be  intended 
Co-eval.,  and  not  a  latter  Ereftion  in  Eafe  of  thofe  of  the  Chapelry,  but 

here  it  appears.  That  the  Chapel  could  be  only  an  Erection  in  Eaie,  and  \^i 

Favour  ot  them  and  the  Chapelry  ;  For  they  of  the  Chapelry  buried  at 
the  Mother  Church  till  H.  Sth's  Time,  and  then  undertook  to  contribute 
£o  the  Repairs  of  the  Mothei-Church.  i  Salk.  164.  pi.  2.  Ball  v.  Ciofs. 


580 


Prohibition. 


(K)  JurHHi6i:Ion.      Reparation.     Orfiaments. 
I.  TiT  a^mtberated  fottljeOcnamciitgiottljeClntrclj  according 

X  to  his  Land,  which  he  has  in  the  Furilh,  a  liPrOljlbittOU  IlCSi 
"BCCtlUrc  \)Z  Ollffljt  to  be  ratetl  faC  t\yzm  according  to  his  Perlbnal 
Eftace.  $^.  20.  :ja.  06*  H, 

8.  P.  Win.  2.  3f  a  $^au,  wljo  t0  not  an  Inhabitant  ill  tl)e  \^m^h  biit  IjnsianB 
55.  Mich  20  j.|jj,.g^  jg  f3^eci  foj.  (J3j  ©rnnnients  of  tlje  ct}urcl)  according  to 

£■  fucT  ^he  Land,  a  pcoljibitioit  lic0i  JFoc  tljc  3inl)abttant!3  oiigbt  to  be  raten 
Taxation  fot  tbcjiu  ^.  20.  ^a,  IS.  E»  w  €\\m\w.  B-cfolueD,  aiio  }?rol)ibitiOii 
for  oiw-    pantcb,  tbis  bcins  niobeu  bp  $^after  l^el^jertou,  UJljo  faio  tljat  it  Ijan 

mentsis  Per-  j^j^,^  ^,j5JJ^.gj  -2^i,|,e£i  fO  tefOl^CD* 

fonal  only. 

2  Roll.  Rep.  1^2.  Mich.  20  Jac.  B.  R.  Wilmcrc's  Cafe,  and  feems  to  be  S.C  —  S.  P.  by  the  Chief  J. 
to  which  Chamberlayne  J.  agreed,  and  none  denied  it.  Ibid.  2-0.  Hill.  20  Jac.  BR.  The  Church- 
wardens of —  See  the  laft  Note  to  pi.  4. 

See(H)  pi.        3.  3I{  all  the  Parifliioners  are  not  rated  fOt  tljC  EepatatlOll  Of  tljC 

10.  contra  (^jjurcij,  but  fonic  are  anD  fowc  are  not,  ann  tbofe  toijo  arc  raten 
S  brj  are  fucri  \\\  tlje  ecclcfiaftical  Court,  a  probibitiou  fljaU  be  granten* 
ugd,  'fi-at    ^.  1 1  *  2a*  05*  ia»  per  Ctiriam* 

that  Plea 

was  offer'd  in  the  Eccleftaftical  Court,    becaufe  Reparation  of  Churches  is  proper  for  their  Cogniianpe. 

Vent.  50S.  Pafch.  29  Car.  2.  B.  R,  Anon. 

Poph  197.      4.  :jf  tbe  major  Part  cf  tljc  patifljionerjS  of  a  [5an'fij,  toljere  tijcte  are 

^f — ..  4  'BClIsS,  agree  that  there  ftall  be  a  fitch  Bell,  anO  a  5tb  10  ItiaJe  aCCOr= 
of  B   levied  ftngl}?,  and  t\)t]>  make  a  Rate  for  Payment  ti3r  (t  i  '^1)10  fljall  bind  the 

a  Tax  upon  Idler  Part  Of  tbc  panfljloner^,  tljo'  tl)e\)  bo  not  agree  to  it  ■,  JFoc  a- 
all  the  Lands  tberiMifc  aup  obftittate  laerfousi  map  binbcr  urn  tbmg  intcnrieti,  anti 
in  the  Panfli  ^\^if^\)i^  fit  foc  ti)c  Oriiamcnt  of  tlje  Cburcb*  ^icb.  2  car*  15,  E» 
ZtMrBe/h  bttiueen  per  Curiam*  I'^robibitioii  Denicb,   it  bcimx 

finwch  for  '  mobeo  bj)  Chaffer  i©ilbe*  'SDIji^  concernis  tije  parifljioucrs  of  Bw/- 

every  Jcre,      grove  \\\  UBOrCeftetfljire* 
but  they  ex- 
cepted 900  Jcres  oflf^ood  of  the  Bifhop  of  London,  -pretending  they  were  difcharg'd  by  Ciificm.  A  Parifliioner 
■was  fucd,  and  Sentence  given  againft  him  in  Paul's,  and  the  Sentence  affirm'd  upon  Appeal,  and  now  he 
prays  a  Prohibition.     And  Serj.  Crew  faid,  That  this  Cuftom  was  againji  Law  ;  whereupon  Doderidgc 
and  the  Court  faid  to  him,  That  he  fliouldmake  hisSuggeftion,  and  then  he  fhould  have  a  Prohibition. 

Bells  are  only  Church  Ornaments,  and  are  a  perfonal  Charge  upon  Inhabitants,  and  not  upon  thole  who 
live  elfewhcve,  tho'  they  occupy  Lands  in  that  Parifh.  ;  Mod.  211.  Pafch.  4  Jac  2.  B.  R.  V/ood- 
ward'sCale.  — But  I  Salk.  164.  Trin.  1  W.  &  M.  B.  R.  S.C.  by  Name  of  Woodward  v.  Makepeace  it 
was  held  per  Cur.  That  tho*  he  docs  notperfbnally  live  in  the  Parifli,  yet  by  having  Lands  in  his  Hands, 
he  is  taxable;  and  whereas  it  was  pretended  the  Bells  were  but  Ornaments,  it  was  held.  They  were  more 
than  Mere  Ornaments;  That  they  were  asnecejfary  as  the  Steeple,  which  is  of  no  Ufe  without  the  Bells, 
and  Holt  C.  J.  faid.  If  he  be  an  Inhabitant  as  to  the  Church,  which  is  confefled,  how  can  he  not  b;  an 
Inhabitant  as  to  the  Ornaments  ofthe  Church  ? 

j.'The  Churchwardens  libell'd  for  a  Rate  made  to  repair  the  Churchy  and 
for  dividing  the  Church  Hotife  (lehich  did  not  belong  to  the  Church)  into  fe- 
deral Kooms  for  the  Ufe  of  the  Poor,  and  for  Payments  of  the  Marjhalfea 
Money,  and  for  making  neiia  Chimes.  Jt  was  iuggefted  for  a  Prohibition, 
that  the  Things  mentioned  in  the  Rate  are  jumbled  together,  and  fuch 
as  are  not  cognizable  in  the  Spiritual  Court,  and  that  the  Chimes  are  only 
Ornaments  j  But  it  was  anfwered.  That  they  are  not  only  Ornaments 
but  ufelui  and  convenient  ;  And  a  Prohibition  was  denied  per  tot.  Cur. 
Lutw.  1019.  Hill.  36  &  37.  Car.  2.  C.  B.  Watkins  v.  Seyman  & 
Webb. 
Sec  (H.~;  6.  Rate  to  pay  for  Ornaments   in  Proportion  to  the  yearly  Value  of 

jS.  Marg.     Racks  and  M//j  is  not  good.  $  Mod.  391.  Hill.  9.  W.   3.  Hawkins's 
Cafe. 


Prohibition.  y8i 

7.  A  Prohibition  for  libelling  in  the  Spiritual  Court  for  a  Parifli  Kate 
for  mending  and  cleanfing  the  Parifli  Organs,  was  granted.  12  Mod. 
416.  Mich.   12  W.  3.  B.  R.  Anon. 

S.  A  Rate  was  made  at  a  Veftry/jr  BniUing  of  a  Gallery  ;  and  for  re- 
fufing  to  pay  his  Part,  a  Parifhioner  was  fu'd  in  the  Spiritual  Court,  and 
thereupon  he  now  pray'd  a  Prohibition,  becaufe  a  Parifli  could  not  be 
tax'd  for  the  Building  of  a  Gallery,  which  is  neither  Ufeful  or  Ornamental 
to  a  Church.  But  this  was  not  much  regarded  by  the  Court.  10  Mod. 
13.  Mich.  9  Ann.  B.  R.  Forte  v.  Buviere. 


(L)  In  what  Cafes  it  fliall  be  granted  for  a  Collateral 

Caufe. 

I.  T/  a  e>iiit  lie  ill  tgc  §>pirimal  dourt  to  try  the  Bounds  of  a  Parifli,  See  (E)  pi. 
1  a  proJjtbirion  lljaU  bt  gcantcti,  for  tgcp  Ojall  not  trp  it,   i^itl).  '•  I,— - 

14  la.    B.  K.  Fiper  ailD  Chamberhyne.    iRefoltJcD.    I?.  41  GI.  B*  ill»  r^        2 
licrtoecn  Ptper  aiiD  Bamaby.    ^DiuDg'D,  aiiD  ][DrobiUi«on  guaiuei).  1^,  pi  ^3/ And 
i3  3a»  115,  la,  licttorcn  *  Fofter  anU  /^y<?.    i3tijuDg'0»  a  Prohibi- 

tion was 

granted,  becaufe  they  would  try  the  Bounds  of  a  Pari(h  ;  and  the  Plaintiff  in  the  Prohibition  Jhew'd  for 
Title,  That  the  ?arfonage  appropriate  came  to  the  Crozvn  hy  the  Statute  of  Diffolutions,  and  that  S>ueen  Mary 
graced  it  to  a  Corporation,  who  Jeas'd  it  to  the  Plaintiff  for  a  certain  Term,  but  did  not  JhewThe  'Letters 
Patents,  nor  the  Deed  of  grant  from  the  Corporation  ;  and  thereupon  it  was  demurr'd  for  a  Confultation, 
for  this  was  refolv'd  10  Rep.  in  Dr.  IcpfielO's  Cafe,  not  to  be  good.  And  Coke  Ch.  J.  faid.  That  they 
would  have  the  Letters  Patents  and  the  Deed  (hewn  to  them  A  Latere  ;  becaufe  for  the  Default  of  plead- 
ing them,  a  Confultation  fliall  not  be  granted  for  the  Spiritual  Court  to  try  the  Limits  of  the  Parifh. 
And  aftpr  thev  inin'--'  Tfllie  by  Confent. 

S.  the  Plaintiff  fued  in  the  Spiritual  P^nrt  fnr  TitPi-'  oaamO-  the  Uefcnaant  viifhln  theVarifij  of  C.  The 
Defendant  faid,  That  the  Tithes  are  within  the  Parip  of  A.  and  the  Parfon  of  A.  came  in  Pro  inter effe  fuo 
and  thereupon  they  proceeded  to  Sentence,  and  that  was  given  againjl  S.  who  nozujued  a  Prohibition  ■  and 
the  Queftion  was,  If  Witliin  Such  a  Parifh  or  Such  a  Parifh  be  triable  by  the  Law  of  the  Land  or  by 
the  Law  of  the  Church  ?  Wray  Ch.  j.  faid.  It  hath  been  taken,  That  it  is  triable  by  our  Law.'  Fen- 
ner.  The  Pope  has  not  diftinguifhed  Parifhes,  but  has  ordained.  That  Tithes  (hall  be  paid  within  the 
Parifh.  3  Le.  129.  pi.  181.  Trin.  28  Eliz.  in  B.  R.  Stranlham  v.  Collington.  —  S.  C.  Cro.  Eliz.  228. 
pL  17.  a  Prohibition  was  granted  ;  for  the  Bounds  of  the.Pariih  are  triable  at  Common  Law. 

The  Bounds  of  Parifhes,  tho'  coming  in  Queflion  in  a  Spiritual  Matter  fhall  be  tried  in  the  Temporal 
Court.  This  is  a  Maxim  iri  which  all  the  Books  of  Common  Law  arc  unanimous,  tho'  our  Provincial 
Conllitutions  exprefsly  mention  Limits  Parochiaruni,  among  the  Matters,  Que  Mere  ad  Forum  Eccle- 
fiafticum  pertinere  nofcuntur,  and  quae  non  pofTunt  ad  Seculare  Forum  aliquatcnus  pcrtinere.  1  Gibf. 
Cod.  239. 

The  Reafon  why  Bounds  of  Parifhes  are  triable  at  Common  Law,  is  becaufe  the  Prefcription  is  the 
Ground  thereof;  Per  Hale  Ch.  J.  And  per  tot.  Cur.  This  is  of  Right,  and  not  to  be  denied  where 
grantable.     3  Keb.  286.  Pafch.   26  Car.  2.  B.  R.  in  the  Cafe  of  Brown  and  Bard  v.  Palfry. 

But  where  Prohibition  was  pray'd,  becaufe  the  Bounds  of  2  Vills  in  the  Parifh  of  A.  came  in  Quef- 
tion, the  Prohibition  was  deny'd  by  all  the  Court ;  for  tho'  the  Bounds  of  a  Parifh  are  not  triable,  the 
Bounds  of  a  Fill  in  the  fame  Parilh  are  triable  in  the  Ecclefiaflical  Court.  Lev.  78.  Mich.  14  Car.  2. 
C.  B.  Petler  v.  Yaleman. 

2.  If  a  Vicar  of  a  jDarinj  libells  againfl:  another  to  avoid  his  Inftitu- 
tion  to  tftc  Cfiurclj  of  D.  tol)ttb  8e  fuppofesi  to  be  a  Cfiapcl  of  QBafe 
appertaining  to  fiijs  Slitarage,  and  tfie  Defendant  fuggefls,  That  D.  is  a 
Parifli  by  itfelf,  and  not  a  Chapel  of  Eafe,  a  ^Bcol^ibition  ftall  he 
grantcD  •,  for  tftrp  Itjall  not  trp  t&e  Bounds  of  the  Parifli.  >|)itlj.  14, 
3|a,  B.  k,  Fifier  U.  Cbamberlaine.  StllUtig'tJ  for  tfie  Cfiurtg  Hi  Oakely 
anO  Clapham  •,  an&  pet  tliere  fte  alleg'ti  it,  Subdole  libellando. 

3.  If  tbe  ©ueffion  be  in  Court  Cfttiffian,  Whether  a  Church  be  a 
Parochial  Cfiurcjb  or  but  a  Chapel  of  Eafe,  a  prohibition  lie0,  %x, 
3  3a,  31B.  "iZI^Ijc  iiQartieng  of  &t.  Sampfon'^  Cafe  of  Corntoall,  p,  9 
Car,  B.  E,  bcttueen  Elk  Vkar  of  Alderbume  in  t6e  Countp  of  OTiltgf 
anO  Cooke,    ^prohibition  grantel),  I  being  for  tjie  Cllitari  and  upon 

7  H  t&i0. 


j82  Prohibition. 


tgts,  SIflue  join'O,  Mf^ttttt  tfiep  toerc  ftberal  pariftc0,  auti  tneti  bp 
MttHia  to  be  one  l^arillj. 

4.  3£  in  a  |0arift  tjicre  be  a  Chapel  of  Eafe  and  a  Vicar  thereof  dif- 
tinft  from  the  Parochial  Church,  ant)  tfie  lElicar  10  endow'd  of  the 
Tithes  of  the  Parifhioners  who  are  inhabiting  within  the  Chapel,  anO 
tfic  miiat  fueiS  one  of  tSe  ^arifli  tofio  i&  not  toitgin  tfie  dfiapcl,  anD  fie 
fap0,  'Cfiat  8e  iis  of  tbe  f  arift  anD  not  of  tfic  Cfiapel,  a  ^roftibition 
ftall  be  granteb  •,  for  noto  t&e  Bounds  of  the  Chapel  tome  in  iSucffion, 
^.  1 5  la*  15, 1R.«  bettoeen  tge  ©itai;  of  tge  Cgapel  of  5o/?o»  in  Corn* 
toall  anb  another  of  tfie  pariOi  of 

5.  3If  tge  Churchwardens  of  a  \3arifl)  fue  a  Vill  for  Reparation  of 
tbtic  Cfiurcfi,  fuppofing  the  Vill  to  be  an  Hamlet  within  their  Parifli, 
and  the  Vill  [pleads]  that  it  is  a  Parifli  of  itfelf,  anb  not  an  l^amltt  of 
tge  otger  *  parifb,  a  proBibition  (ball  be  granteb  5  for  m\o  tfie  Bounds 
of  the  Parilh  tome  in  ©ucttion,  '^v,  16  3a»  J15»  31l»  bettoem  Perry  am 
Thomas  ^laintiflfiS,  againft  ♦  f  ro&ibition  granteb. 

A  Prohibitu  6»  3If  a  &uit  be  in  tfie  ConQftorp  of  SDurgam  for  Tithes  of  3LanO 
on  fhaii  mt  jpjj^g  j„  Berwick,  no  ^tofiibition  ftall  be  granteb  upon  a  Surmife, 
be  granted  ^j^^^,  ^^^  j^^^j  jj^^  -^^  Amerton  in  the  Kingdom  of  Scotland,  and  not  in 
iV/'^that  he'  Berwick;  fot  tgo'  tfii^  be  true,  pet  it  map  be  tSat  tfic  parfon  ougfit 
is  fued  for  to  6abc  tfie  Cit8e0  tfiereof.  "^^r*  1 1  Car.  15.  IR.  bettoeen  Morton  an& 
Tithes  by  Rofdon.  ptt  Cutiam,  0ftcr  a  prohibition  upon  futD  &>uggettion 
the  Parfon  jf^attt,  a  Ctaberfe  tafeen,  '5ZtBat  it  boe0  not  lie  in  amerton  in  tge 
LaS'sbthe  3llealm  of  &totlanb,  a  Confultation  granteb;  anb  it  feem?  it  toass 
Pariihofs.  partip  in  refpea  to  tbt  faib  Eealm0  of  ^totlanb  anb  Cnglanb  m 
tiitle/t  a  ap-    Point  of  5tate. 

fears  in  the 

PUadinz  in  the  Spiritual  Court ;  for  they  there  fliall  not  be  Judges  of  the  Bounds  of  the  Parifli.    By  the 

Court.    Noy  147.  Philips  v,  Slackc.  cites  5  H.  5.  10.    22  E.  4.  24. 

7.  3If  a  span  toBo  has  Land  by  Defcent  fues  anotgec  in  tge  C^ctleCaffts 
cal  Court  for  calling  him  Baftard,  a  prohibition  Iball  be  granteb ;  foe 
it  tenb0  to  -^^emporal  SDiQnfieritante.  i^.  3  3la.  215.  H.  iper  Curiam. 
If  a  Suit  be  8.  If  a  #an  fuc0  for  a  Legacy  in  tfie  g>piritual  Court  againtt  an 
in  the  Spiri-  Executor,  aub  fie  tfitre  pleads.  That  he  has  not  Aflets  but  for  Debts, 
tuai  Court  |j  jgj  Court  bifallotog  -tfit0  plea,  a  ftofiifaition  Iball  be  granteb* 
where^fXy  l^aftfi*  ^5  ^^*  ^*  ^»  bettotm  Singleton  anb  Wade.  ^  f  rofiibition 
have  jurif-    granteb  atcorbinglp* 

therein'a  Plea  is  pleaded  which  is  triable  at  the  Common  Law,  yet  if  they  will  allm  the  Flea,  they  Ihall 
have  Juiifdiftion  thereof,  and  try  it ;  otherwife  a  Prohibition  lies.  Agreed  per  Curiam.  Cro.  E.  595. 
pi   18.  Mich.  39  &  40  Eliz.  C.  B.  in  the  Cafe  of  Somerfet  v.  Markham. 

If  Goods  are  deviled  to  B.  as  Son  and  Heir  of  A.  and  B.  fues  the  Executors  in  the  Spiritual  Court  for  the 
Goods  and  the  Executors  fay.  That  B.  is  tiot  Son  and  Heir  of  A.  and  thereupon  they  are  at  Ifiue  ;  It  was 
held  That  the  Spiritual  Court  Ihall  have  Jurifdiftion,  becaufe  it  is  dependent  on  the frjl  Matter;  befides 
B.  would  otherwife  be  Remedilefs,  for  he  cannot  fue  for  the  Goods  fo  devis'd  in  the  Temporal  Court. 
Kelw.  1 10.  a.  pi.  33-  Cafus  incerti  Temporis. 

So  if  Devifee  of  Goods  fues  for  them  in  the  Spiritual  Court,  and  the  Executor  pleads  Ne  Devi/a  pas, 
this  ftiall  be  try'd  in  the  fame  Court ;  becaufe  the  principal  Thing  is  merely  Spiritual,  and  this  Iflue  de- 
pending upon  the  Principal,  Ihall  enfue  the  fame  Courfe,  and  be  try'd  in  the  fame  Court.  Kelw.  1 10.  b. 
pi.  33.  Cafus  incerti  Temporis. 

Soli  A.  devifes  Goods  to  B.  and  dies,  and  B.  fues  in  the  Spiritual  Court  for  the  Goods,  and  the  De- 
fendant fays.  That  the  Property  of  the  Goods  is  his;  this  Property  Ihall  be  tried  in  the  Spiritual  Court,  and 
yet  it  is  a  Temporal  Thing.     Kelw.  no.  b.  pi.  34.  Cafus  incerti  Temporis.     Per  Huffey. 

So  if  the  Parfon  fues  in  the  Spiritual  Court  for  a  Mortuary,  and  the  IJJue  is  taken  upon  the  Property  ; 
and  fo  of  all  Iffues,  being  upon  the  fame  Thing,  they  fhall  be  tried  by  the  Spiritual  Court.  Kelw.  no.  b. 
pi  34.     Per  Huffey. 

But  »/Teftator  devifes  Goods  to  B.  and  the  Executors  forge  a  new  Will,  in  which  there  is  no  Jucb  Be- 
vije  the  Aftion  upon  the  Statute  i  H.  5.  cap.  2.  againft  the  Executors,  fhall  be  in  the  King's  Court,  be- 
caufe the  Suit  is  upon  a  Thing  which  merely  concerns  his  Court.  Kelw.  no.  b.  pi.  33.  Per  Grantham. 
Per  Cafus  incerti  Temporis. 

In  a  Suit  for  a  Legacy  in  the  Spiritual  Court  they  were  at  IJfue  there  upon  a  Point  of  Covin,  as  touchmg 
Matter  there  alleged,  in  Difcharge  of  a  Legacy  ;  Upon  this  a  Prohibition  was  pray'd,  and  denied,  and  a 
Confultation  granted,  becaufe  they  had  Conufance  of  the  Principal,  and  therefore  they  have  Caufe  alfo  there 
to  determine  of  the  Aceejfory,  being  Covin,  concerning  the  Legacy  ;  It  was  adjudg'd  for  the  Confultation, 

and 


Prohibition.  585 


and  the  Prohibition  denied.  3  Bulft.  314.  Mich,  i  Car.  B.  R.  in  the  Cafe  of  Dickes  and  Uxor  v, 
Browne.  —  cites  Pafch.   i4jac.  B.  R.  Wallis  v.  Leyde. 

An  Executor  of  an  Executor  was  fu'd,  who  pleaded  Riens  enter  Maines;  The  Spiritual  Court  rcfufed 
that  Plea  ;  upon  which  a  Prohibition  was  awarded  out  of  B.  R.  Noy  77.  Dixye  v.  Brown. — S.  C.  Paim. 

422.  Pafch.   I  Car.  B.  R. S.  C.  and  reported  in  almoft  the  fame  Words.    Lat.  114.  by  the  Name 

of  Watkins's  Cafe  ■ 3  Bulft.  314.  Dickes  v.  Brown,  S.  C.     But  fays.  That  the  Prohibition  was 

granted  upon  a  Mifopening  the  Suggeftion  to  the  Court.  And  per  Cur.  we  do  here  try  Fully  Adminifter'd 
or  Not,  by  a  Jury;  they  there  try  this  per  Teftes,  and  they  have  Conufance  thereof;  But  if  they,  in 
their  Proceedings,  refufe  fuch  a  Proof  for  Fully  Adminiftred  in  Difcharge  of  the  Party,  which  is  allow- 
able at  Common  Law,  a  Prohibition  then  is  to  be  granted  ;  But  here  nothing  is  in  this  Suggeftion,  but 
that  they  there  went  to  Iflue  only  upon  Fully  Adminiftred  or  Not,  the  which  of  itfelf  is  no  Caufe  to  have 

a  Prohibition. If  they  refufe  to  accept  of  the  Plea  of  I'lene  Admin ifiravit,  the  Patty  ought  to  appeal, 

becaufe  they  proceed  otherwife  than  they  ought.     Sid.  249.  Trin.   17  Car.  2.  Anon. 

9.  Libel  for  not  repairing  Part  of  the  Church- Wall,  which  by  Cufiom 
he  was  bound  to  do.  A  Prohibition  was  granted  after  Sentence  \  becaufe 
a  Cuftom  is  not  triable  in  that  Court.  Carth.  33.  Pafch.  i  W.  &  M.  B.  R. 
Tyler  v.  Manfel. 


(M)    In  what  Cafes  they  fhall  not  have  Jurifdi&ion  for 

a  Collateral  Caufe. 

i.TiF  A.  6e  prefented  by  J.  S.  to  a  mmt^iz,  [anti  10]  atimimtr. 

X  tnttitUttO,  antI  induded,  and  after  the  King  prefents  j^tSS  Clctfe 
to  tint  fame  Cgurtg,  fuppoang  a*  to  be  prffcntcti  bp  Simony,  and  his 
Clerk  is  inffitutcli  anO  induced.  iHipon  tofiitg  A.  fues  in  tfie  ftltltiX^ 
affical  Court  agatiilt  tge  CIcrIt  of  t^t  ming,  fuppoang  tgat  ge  titt]  not 
come  in  bp  ^imonp,  anO  fo  prapsf.  That  the  Super-Admiffion,  3]nttis 
tution,  anti  Intiurtion  of  6im  be  repeal'd,  a  ^rogifaition  l^all  be 
BtantEi  for  tge  Clerfe  of  tge  iiing  upon  Sisi  Suggeftion,  That  A.  was 
prefented  by  Simony,  fw  notD  tjlE  onip  ©Utttion  bettottn  tgtm  i{( 
OTgctger  t&c  Cfiurcb  toa0  boib  or  not  at  tfie  %imt  of  tgc  ^vtknu 
ment  of  tgc  iiing,  tofiitg  10  triable  onlp  bp  tge  ^tvx^msA  €ourt» 
%v*  16  3a,  315, 5R.»  bettoeen  Sarifon  anb  Bathoe.  itiefolbeb  per  Curiam, 
anb  a  prohibition  granteb,  but  after  tgc  proftibitibn  toa0  ifap'b,  iieut 
^ill,  16  3a,  15,  K,  tSe  prohibition  toajs  granteb,  tW  it  toagi  faib, 
Cgat  tgep  only  queftion'd  the  Inftitution  tn  tge  dDttlefiafttcal  Court  i 
for  t\)i^  i0  not  to  be  alloto'b  after  Indudion. 

2.  %%t  Patron  of  a  15eneficc  map  be  fued  in  tfie  flSctledaffital  ^Buift.  182. 
Court  for  prefenting  of  S»8*  Clerfe  ( tofio  is(  note  inburteb )  for  Simony  5  \  ^-  Hiii.  u 
for  tfie  ^mim  of  &imonp  botfi  not  tafee  atoap  tfie  CtcIeCaffital  Ju.  £r'e  Cot 
rigbiftion  to  puniO)  tfic  partp  Pro  falute  Anims.    SD,  1 1  3!a,  315,  K,  Ch.  j.  faid, 

S>ir  William  Boiefs  Cafe,    Eefolb'b.  That  we  arc 

not  to  take 
Notice  of  any  Simony,  this  being  punifliable  in  the  Spiritual  Court,  and  if  they  meddle  only  Pro  falute 
Animae,  they  are  not  to  be  prohibited ;  nor  is  a  Prohibition  to  be  granted  in  this  Cafe,  by  realon  that 
they  examined  t/pon  Oath  touching  the  Simony ;  and  this  is  clear,  becaufe  it  was  fo  done  voluntarily ;  and 
notwithftanding  the  Incumbent  be  dead,  yet  the  Crime  remains  aud  is  living,  and  the  Examination  here 
by  them  was  only  Pro  Salute  Animje.  But  if  there  be  any  Article  to  be  examined  upon,  tuhich  any  viayt 
draws  the  *  Right  and  Title  of  the  Benefice  into  ^ejiion,  then  clearly  a  Prohibition  is  to  be  granted,  but 

not  otherwife  ;  And  fo  no  Prohibition  was  granted. *  S.  P.  Bulft.  179.   9  Jac.  in  Holt's  Cafe.  — — 

S.  P.  2  Le.  168.  pi.  205.  Pafch.  26  Eliz.  C.  B.  in  Gerard's  Cafe. 3  Le.  98.  pi.  140.  S.  C. 

3.  3if  A.  recovers  in  Quare  Impedit  againft  the  Ordinary  and  the  In-  Roll.  Rep. 
cumbent,  anb  tge  Incumbent  brings  Writ  of  Error,  in  tofiicB  ti^Z  Judg-  ^'^'}'  9'  ^^' 
ment  is  affirm'd,  and  a  Writ  to  the  Bifhop  i0  grantcb  for  3,  upon  tofiitS  p°  an"ln^  "" 
a,  prcfetus  f)i0  CIcrfe  to  tljc  IBiQjop  before  anp  attual  demotion  of  ciimbentofa 
tftc  firft  Jnrumbcnt,  anb  6i0  Clcrfe  is  abmitteb  anb  inftitutcb,  upon  church  tra- 
toljitfi  tfic  artt  Jimumbent  appeal?  to  tfie  ^ubiente  for  a  Super-Inftitu-  ^'^^^y '"   . 

tion  ^''"'*'' ""'' 


584 


Prohibition. 


other  Parts  <tion  bcfoic  x\^vA  Sc  \ta0  innotJEU,  a  ^rofiifaitioii  ft)all  far  gcanteij ;  foe 
Greece,  and  tljc  fiift  Incumbent  was  removed  in  Law  by  the  Judgment,  tfio'  lie  totl! 
it  was  not  xiwrnxs  Jutumbciit  DC  facto  till  tfie  latt  Incumbent  toass  prtfcntetJi 
Slrlfi'/  ""^  ^6*^  "^^  Jnffitution  toag  bp  foite  of  tfic  Ming's  ?221Itit,  anti  tfjcre^ 
J^f /rX</;forc  no  appeal  map  be  from  it.  tlj).  12  3a,  B.  li.  bettoeeu /F/A^/^/er 
whereupon  '  anO  Singkion.    ^tijutig'o,  anil  IBrogibition  granteO, 

G.  was  infti- 

tuted  and  induftcd.     Afterwards  the  Procurators  of  P.  libel'd  againft  G.  in  the  F.cclefiaftical  Court  to 

try  the  Super-InRitution.     It  vmfuggeftcd  for  a  Prohibition,  Thnt  after  IndiiSlion  the  EiclefiaJiUal  Court 

cannot  trf  the  Supcr-Injlitution,  and  that  G.  taas  novj  in  his  firft  Fruits,  and  that  iherctore  the  Coutt  may 

grant  a  Prohibition  ;  And  it  was  granted.     Litt.  Rep.  140.    Mich.    4  Car.  in  the  Exchequer.     Pettie's 

Cafe. 

Prohibition.  4.  3[f  0,  be  inffitiitcD  ana  inbucteD  to  a  Cfiujcfi,  antj  after  Be  10 

^ff  H ^1' "ri  ^"^'^  *"  ^^^^  ^^^  CommilTion  Coiirr,  bctaufc  one  215,  teas  inffituteD  anD 

*',^-V^^-^  iiltJuacb  before,  anD  *  after  a,  V«ag  fuper-inftituted  and  induded,  bp 

*  Foi.  293.  it)Ditl)  bp  tfie  Canon  iLato  De  is  an  Jntruber,  auD  is  to  be  punifhed  as 

v-^^r''0  an  Intruder,  "S^o  topiff)  2,  anftoets,  ^fiat  Se  tiiti  not  fenoto  t&at  115, 

^Td^'^"  ioas  inftituteD  anti  inOuttcli  before  fiim,  bp  toftitlj  Be  eyrufes  Bimfclf  of 

fons  bd°ong  anP  Crime,  a  prohibition  fljall  be  granteti  •,  for  tfiep  ftall  not  try  which 

to  the  Com-  of  them  has  the  better  Right  after  f  Inftitution  and  Induftion,  but  tBi0 

mon  Law.  j^flU  be  ttieli  at  tlje  Common  iLato,  3l5ut  tBe  £Dr&inarp  map  punift 
^^T-°     «"P  f"f&  Clerfe,  togo  procures  Bimfclf  to  be  fuper^inffitutcD  ant)  intiua= 

Coun '"and     ^^'   knowing  the  Inftitution   and   Indudion   of  another.     ^,    1 6  Cor, 

tharhe  was  B,  H,  bettoecu  Haddocks  anti  Chivd.  ^cr  Curiam,  ^  frofiibition 
inftituted  to    grautcJi  to  tfie  f^ioB  CommiiTton  Court, 

the  Church  ^  ~ 

of  D.  and  the  Defendant  libelVd  in  the  Spiritual  Court,  ^hat  he  him/elf  was  injiituted  to  the  faid  Church, 
and  induced  before  the  Plaintiff,  who  had  obtained  a  Super-Inftitution  upon  him  ;  which  being  fcanda- 
]ous  to  his  Title,  he.  fu'd  thereto  Jet  the  Sufer -Inftitution  aftde.  But  the  Spiritual  Court  proceeded  not- 
withftanding,  and  tho'  the  Induftion  belong  to  the  Common  Law  j  The  Defandant  pleaded.  That  he  did 
not  profecute  Contra  Prohibitionem,  but  Fro  Confultatione  habenda  he  demurr'd  ;  And  per  Cur.  He 
ought  to  have  it ;  for  tho'  the  Defendant  was  indufted,  yet  it  doth  not  appear  thnt  the  Plaintiff  was  in- 
du{led,  and  fo  the  Plea  ftands  only  upon  the  Super-Inftitution,  which  is  proper  for  the  Spiritual  Court ; 
But  aftertvards  it  being /'W»W  the  Court,  that  the  Plaintiff  -uias  induBed  alfo,  the  Confultation  was  ftay'd, 
that  the  Plaintiff  might  declare  De  novo  upon  his  Inftitution  and  Indufted.  But  upon  the  prefent  Decla- 
ration the  Prohibition  cannot  ftand.     z  Lev.  125.   Hill.   26  &  27  Car.  2.  B.  R.  Monday  v.  Porton. 

f  Where  the  firft  Incumbent  comes  in  by  Simony,  there  can  be  no  Super-Inftitution  ;  for  in  fuch  Cafe 
the  Church  is  void  de  Jure  &  de  Fafto,  and  they  cannot  meddle  with  the  Inftitution;  but  with  the  Si- 
mony they  may.  Per  Cur.  Litt.  Rep.  176.  Mich.  4Car.  C.  B.  in  the  Cafe  of  Stevens  v,  Cripps.— And 
per  Williams  J.  Matter  oFInduftion  and  the  Validity  thereof  is  determinable  at  Common  Law,  and  not 
in  their  Court  j  and  the  ;whoIe.  .Court  agreed  with  him,  and  a  Prohibition  was  granted.  Bulft.  179.  g 
Jac.  Holt's  Cafe.  .  .  ^ 

-..  --^T, ...-'■.    .,,.;.      t,  .,- 

*  ^^"^  5.  3f  tj&e  Parfon  of  iB,  takes  a  fecond  Benefice  within  the  Statute 

Courwouid  without  Difpenfation,  •  bp  toBicB  tfie  firtt  ^Benefice  is  boitr,  teBicg  iss 

by  any  Ar-  of  tlje  ^attonage  of  tfie  l^ing,  anO  after  30  caberiorem  Cautclam  $ 

tide  draw  atr  tollcntium  omue  SDufaium,    he  obtains  a  new  Prefentment  of  the 

the  Right  Yimg,  anti  upon  t8i0  requires  tfie  llSilljop  to  aDmit,   anD  fuperanfft- 

of  thlBenc-  ^"^^  S^*"'  ^^^  ^Bifljop  tafecs  '•S^ittte  to  be  atibifeti,   anti  in  the  mean 

fice  into  Time  the  King  prefents  another,  who  is  inftituted  and  indudled.     3ntl 

Queftjon,  a  after   tBe  firft  Parfon   fues  the  Bifhop  for  Injuftice  in  tlje  Spiritual 

Prohibition  jjcourt ;   a  l|0roBibition  ftall  be  granteD ;  for  tgofe  of  tge  Spiritual 

'  rante^d  Court  ouggt  uot  to  ej^amlue  tlje  *  Right  of  Prefentations.    ^,  3  Ja, 

fBuift.'i83.  ilS*  /F////flm  Cafe  atijutigetJ,  anti  Confultation  tienico, 

in  Sir  Wil-   ' 

liam  Boier's  Cafe. And  fee  the  Notes  upon  pi.  4. 

6.  3f  a  ^an  fues  in  tge  Court  CBriffian  to  Babe  Account  for  the 
Profits  of  a  Benefice,  a  ^roBibition  lics,  becaufe  tBiS  belongs  to  tBe 
Common  ilato,    ^.  3  3a,  215,  atijutigetJ, 

7.  But  if  tBe  &uit  be  tBere  for  tBe  profits  taken  in  Time  of  Seguef- 
tration,  no  ^roBibition  lies,    ^,  3  3a,  315.  atijubgeti. 


I 


Prohibition.  585 


8.  3if  two  Churches  ait  united  faj)  pati'ou,  ©I'Dmatp,  aiiD  tl)C  lUnrj, 

by  the  Statute  ot  37  H.  8.  upon  aSiirmile  that  the  2  Churciics  are  not 
diltunt  more  than  a  Mile  tl)t  OltC  ftOllI  tl)C  OtljCr,  autl  aftCC  tljC  Pa- 
rilliioncrs  are  fued  m  tljC  ^pitttUal  COtltt  to  come  to  the  one  Church, 
a  l^rOljlbttiOn  IlCSi  upon  a  Surmife,  that  the  Churches  are  diltant  more 

than  a  Mile  tijc  oiie  ftoiii  tlje  otfjEt*  a^tclj*  10  Cat*  03.  H»  bctxocm 
jDobfoii  anU  A'//-  ij'.Z/^r;  Mordaimt,  a  Riiic  foc  a  ii)rot)ibitian  gcaiiteu  i 

tlje   ClUirtijCSS    UitlteU   mere   n'clleshumiih  and  Wait  en  Devtil  \\\  tljg 

Countp  of  iiBartDicU.  oaut  after  p*  n  Car.  15.  E»  Cije  l^roljiln^ 
tton  oeutED,  uecaufe  tijerc  uiajs  not  anj)  @»uit  tJepenHinn;  aaainft  tDe 
;g)arifl}toncriS3  nor  anp  otijcr  ^uit  in  ttje  Spiritual  Court  fa  be  prO' 
t)ilJiteD> 

9-  3|f  tl)e  P-irfon  libels  Ul  tljC  spiritual  COUrt  for  a  Modus  Deci- See  (F)  pi. 
mandi,  if  tlje  ^Jeiendant  lliggelts  that  he  has  milhiken  the  Modus,  and'"'^^^P'' 

ftews  anotner  Modus,  ije  (tjall  ijauc  a  l^robltton,  Ijccaure  tljep  fljaHsV^R^ 
not  trp  t!je  s^cjuo  Uj;  uiijicij  m  Jnijcritance  lljaU  be  bouno,  ann  an  Rep.  419.  ' 

Ufage  ibr  lo  Years  is  good  Cultom  by  tlie  Spiritual  Law  ;   auD  if  tf)S0 ^'^'-"''^'"S- 

Ifjall  be  fuffereU,  tljcp  totU  tiefcat  tije  Cemporal  Court  of  ail  Jurist  l',  ^""^ 
tiictiom   (|5?i\eport!3»  i43ia»  Gg///.^^«^i/^r^67;aD)ur!seD.  '  c!"7."^.id 

that  the  Spi- 
ritual Court  never  had  Jurifdidlion  of  the  Matter,  by  Reafon  of  their  having  rniftaken  the  Modus- 

S.  C.    5  Bulft.  24t 

A  Parfon  libcll'd  for  the  loth  Shock,  and  alleg'd  it  to  bs  the  Cuftom  Time  out  of  Mind,  to  fet  the 
'  Corn  out  in  that  Manner.  The  Pai-ifhioncr  fuggcfted  that  the  Cuftom  was  to  let  out  ilic  loth  Sheaf  and 
not  the  icth  S'lo^k  ;  and  that  tho' he  had  alleg'd  this,  they  had  refus'd  tiie  I^lea.  A  Prohibition  was 
gi-anted,  and  afterwards  a  Co'i''ultation  was  denied.  The  Court  agreed  that  a  jModus  Decimandi  was 
liiable  for  in  tije  Spiritual  Court,  but  when  it  is  denied  they  ought  to  furceafe.  Whitlock  }.  laid,  that 
liere  is  no  Title  made  for  a  Confiiltation,  but  yet  he  tiiought  it  good  enough  in  this  C.tfc,  beraule  the 
Rirht  of  the'fithes  is  vet  denieiJ,  kit  the  Matirier  of  fitting  forth;  that  they  vary  not  upon  the  Modo  Ded- 
t>i,r>iiii,  hut  upon  the  A/odo  E>:pc>:cndi  ;  but  tiie  other  J uftices  faid  nothing  to  this  Point.  Palm.  443. 
Pafch.  2  Car.  B.  R.  Steward's  Cife. 

io.  3if  il  ^nn  prefents  to  the  Bifliop,  and  upon  Refufal  fues  to  the  1^1"  S.5r.  pi. 
Archbilhop,  who  after  Monition,  CttatlOH  iliro  2Def:aUt  of  the  Bilhop,  '!^^V--5 
admits  and  inttitutes  tf)C  SinCUmbeUt,  UpOU  UiljlCl)  IjC  liS  alfo  indutted,  by'°he  Nime 
ant>  after  tlje  Bilhop  lues  nis  Double  ^^uarrel,  appealUlJ  frOHl  tfje  faiD  ofi=loUifl) 

sentence  to  the  Delegates,  to  aunul  tlje  !3t!mifttan  ann  :5iuTitutt0ii,  ^,'^'-  Bi(hop 
21  prcljibition  iljaU  be  gr-iutcD,  (.^ecaufe  after  innuction  tl)e  atinni^  "L'-f'v^^^^* 
fion  ana  ;Buiitution ougijc  not  to  be  Draiun  m  dueftion  iiusjc  epirt^  -rh.t  [f'the 
tual  Court*   £13. 12  Sa*  "B.  betuicen  ^ir  fmiothj  Hntton auQ  tlje  Bi-  juitices fee 

(JjopofChepr.      J^fr   CUrtaUl.  Caure,they 

may  v.  rite  to 

the  Bifhop  to  certify  concerning  the  Inftitution. S.  C.  accordingly.  Hob.   ly.   vherc  the  Sug- 

gcftion  to  avoid  th.e  Inftitution  was,  that  it  was  made  without  VS'arrant,  it  being  made  by  the  Archbilhop 
at  London,  he  b;ing  there  i.i  Parliamenc-timc,  and  fo  being  made  out  of  the  Diocels  was  a  Nullity. 
But  it  was  held.  That  the  Induction  being  a  Temporal  Act,  was  not  to  l>c  avoided  but  by  a  Qiiare  Im- 
pedit,  or  the  like  at  Common  Liv/.  And  the'  the  King  fignified  hi-  Pleafnrc  by  ievcral  to  have  "a 
Coniultation  granted,  yet  they  anlwcred  that  they  could  not  do  it  by  the  Law,  and  fo  ;!fter  luany 
Mcflages  the  ^Matter  flood. 

11,  Jf  upon  a  Refignation  Of  tlje  SinCUnibfnt,  another  be  prCfCUtCD 
anH  imtituted,  and  alter  he  who  rehgn'd  libels  In  tlje  ^iJCCtefiatllCal 
Court  againfi  tlje  nCU)  Incumbent,  pretending  that  he  did  noc  relign, 

aiit!  after  ninl'iCg  a  leafc  upon  luljiclj  Jfliie  i-s  )oincu,  luljctijcr  Ije  m^ 

i^arfcn  at  tllC  CintC  of  tlje  Leale  made  to  try  the  Tide,  i)Ct  110  \dlQ'- 

\yMm\  fljail  be  granteo,  bccaufe  tlie  Ciucttion  tljere  is  ^  onlp  upon 
tbe  Eefignatioii,  tuljicij  propcrlp  appertains  to  tlje  Ccclcfumtcal 
Court,    ^icij.  IO  3'a.  15.  Mankuoirs  Cafe.  ?3cr  Curiam* 

12.  Jf  a  ^an  pending  a  Quarelmpedit  libels  Ul  tljC  ^pU'ItUal  COUrt  ^=f  P'u.' r"" 
to  avoid  the  Inltitution  of  the  Clerk  Of  tlje  fame  CljUrClj  allcr  he  is  in-  I.,';' ;,,;,,';"' 

duaed,  a  li)rol]ibit(an  fijall  be  granted  i  for  otljcruafc  tljci>  mill  prc^  (')uarc  im- 
\)ent  tlje  square  JmpctJit.    ^^iclj.  14  ja.  05.  E.  bctiuecn  V'pcr  aud^^ii  was 

7  1  Chambcy- 


586 


Prohibition. 


indnuted     Chamberlain^  fo  i)dti  fa)'  Docucritigc ;  auo  ijc  fiiiQ  tljat  tlji^  IjaO  toll 

ea  pending     •  '       - 

tlie  Aftion.  The  Pliintiti"  in  the  Qiiare  Impedit  fucd  in  the  Spiritual  Court  to  remove  him  ;  hut  upon 
f'Uggcftion  th.Jt  the  Defendant  was  iiidufted,  a  Prohibition  was  granted.  Lat-  205.  Oliver  v.  Huflcy. — 
Pending  a  ]urcPatron:itiH,  the  Bifhop  admitted  one  of  tiic  Prcfcntccs;  whereupon  the  Patron  of  the 
other  Prclcntee  libell'd  in  tlie  Spiritual  Court  ;  but  a  Prohibition  was  granted,  and  a  ConCultation  after- 
wards denied.    2  Le.  i63.  pi.  205.  Pafch.  26  Eliz.  C.  B.  Gerard's  Cafe. -5  Le.  98.  pi.  140.  S.  C. 

S  P.  But  if       13.  So  fljalUt  faC  if  after  Induclion,  where  no  Quarelmpedit  ispend- 

the  Suit  to  j^^^  jf  fjjj,  ^m(  jj,.  tjj^j.^  x^  a^ojj,  x\)z  jnffitutton,  a  iSroljibiticin  fljall 
inftinrion  bc^graHtcti  i  foe  bp  tljc  liiBiiftton  it  \^  licconic  Ccuiporal,  luijicl) QrauitJ 
hadbeenbe-tlje  €)p!ritualtp  to  It  i  fot  *  \lx\)zs>  auomtljc  jjnftitution,  tOcpnjall 
fore  the  In-  ^^010  ijp  Confcqiiciice  ttjc  JnCuctiotu         Contra  14  3a.  15.  E-  be= 

duction,  no  ^..^J^.J^  ^Yoer  and  Chamberlamc^  a  prOljtlntiCU  HClliCB  fUt  ttjC  C|)llCif)  Of 

1  rohibition    /^,      ,  j        *■  -> 

ihould  be^    Ujpham. 

granted.  Sid. 

29;.  Trin.  iSCar.  2.  B.  R.   in  Cafe  of  Offley  v.  Bed *  S.  P.  For  if  the  Inftitution  was  notgood, 

the  Induction  is  not  good.     Hob.  15.  in  Hutton's  Cafe.  ' 

The  Induftion  is  Temporal,  and  the  Spiritual  Court  cannot  fruftrate  it;  and  tho'  thev  fhould  give 
Sentence  againlt  the  Induction,  yet  it  remains  good.  Per  Richardlbn,  quod  fuit  conceflum.  And  per 
Cur.  They  cannot  meddle  with  the  Inltitution  after  Induction.  And  by  5  J.  A  Prohibition  may  be 
granted,  tho'  no  Suit  was  depending  here,  and  tho'  the  IndiidCion  was  utterly  void,  [as  in  Cafe  of  Si- 
mony, as  the  principal  Cafe  was]  as  well  as  where  a  Ciiurch  was  lawfully  full  before.  And  Prohibition 
was  granted  Nifi  Caufa.    Litt.  Rep.  165.  Mich.  4  Car.  C.  B.  Stevens  v.  Cripps. 

S.P.Litt.  14,  3if  31  prefent  mp  ClCtli,  aitUIjC  IS  aBmfttetl  anti  inHituted,  and 

Rcp^ifij.      before  Induction  a  Caveat  is  enter'd  bjJ  a  StCaiUlCt;  Ut  tlje  S)ptritUal 

cafeof'':!"  Couit,  tijat  l)t  fljall  not  be  inoucteo,  aim  tijcreupon  an  inhibition 

vens  V,  '   i^  fftantcn  to  tOc  arc(jfcacon,  tijat  ijc  iljalf  not  mmict  ijinu    Jn  tfjis 

Cripps.       Cafe  a  proljibition  fljall  be  grantco,  bccaufc  uiljen  be  isi  infntuteti  be 

bag  an  inception  to  tbe  Lap  Jfee,  anb  tbe  €\)mtl}  is  ftill  aaanm  all. 

Except  tbe  £>inff  i  ano  if  tbis  fljall  be  fuftcrcb,  all  Sbtialss  bi)  ^uare 

3nipetiit  fljall  be  oufteb.    fp.  14  31a.  03.  |i)i:obtbition  grantco. 

iftheAw^      15.  :jf  aBiiiop  collates,  pretentJinof  a  Lapfe,  anb  tljcreupon  tbe 

ccil.ues,  or  Patron  prefents,  and  in  a  Quare  Impedit  recovers,  and  has  a  Writ  to  the 
readers  the  j^j^j^op^  jjj^j,  before  \ji$  ^refeiltee  ba0  Inftitution  fealed,  the  Archbifliop 
aryVreherid,  fends  an  Inhibition  tbat  Ije  fljall  llOt  be  UllfitUteb,  anb  tbcreupon  Sen- 
:ind  hii  C/eryttence  is  givcn  in  the  Arches  that  he  Ihall  not  be  inftituted,  a  |3t0bibi- 

had>mtted,  tlott  0)^11  be  fftanteu  upon  tljis  ;  for  tbcp  (ban  not  trp  again  tbat 
wardlThe"  biljicb  i£i  facfote  ttieb  at  Common  lato,  anb  um  in  Ciuettion  tbe 
■ckrk  '.ihois  Hecoberp ;  for  otberimfe  Eeco\3cric9  at  Common  laai  tuoulb  be  of 

^cx\ij,ics  in  little  jf  OrCe.        £)♦  4  2a.  05.  E*  bCtUieCn  Fktchr  and  Baker.     Pec 

the  Spiritual  cunant* 

Court   by 

Jfpeal  &c  by  which  the  Title  of  the  Collation  may  come  in  Debate,  the  King  fliall  have  a  Prohibi- 
tion. And  if  the  King  recovers  his  Collation  or  Prefentation  to  any  Church,  and  after  Execution  is 
difturb'd  by  Appeals  6cc.  Or  if  the  King's  Ckrk  after  IiuhiBio?i  is  ve^'d  by  Jffeals  &C.  then  the  King 
fhall  have  a  Writ  directed  to  all  Sheriffs  &c.  to  take  and  arreit  the  Bodies  of  thofe  who  make  iuch  Im- 
pediments to  difturb  the  Execution  of  the  Judgment,  or  of  fuch  Prcfentations  or  Collations  made  by  the 
King;  and  alfo  fhall  have  a  Prohibition  to  the  Bifhops  &c.  And  alfo  the  King  may  fue  fuch  Prohibi- 
tion to  the  Party  himfelf  who  fues  fuch  Appeals  &C.  that  they  do  not  fue  fuch,  or  permit  fuch  Appeals 
&c.  to  be.    F.  N.B.  42   (M)45(N.) 

If  the  King  recovers  his  Prefeiitmeyit  to  a  Church,  and  has  a  Writ  to  the  Bifhop  &c.  to  remove  the 
others  Incumbent,  for  which  the  lacumbent  fues  an  Appeal  in  the  Archbifhop's  Court  &-  by  Reafbn 
whereof  the  Jrchbijbop  fends  a  Prohibition  that  he  do  not  admit  the  King's  t^lerk  pending  the  Appeal  &c. 
the  King  fhall  have  a  Writ  to  the  Arclibifhop  and  his  Orficers  to  take  off  his  Inhibition,  and  that  they 
do  nothing,  nor  fuffer  any  Thing  to  be  done  in  Derogation  of  the  King's  Right,  and  fhall  have  another 
Writ  againft  tlie  Incumbent,  that  he  follow  not  fuch  Appeals  &c.  And  alfo  the  King  m.iy  have  an  At- 
tachment directed  unto  the  Sheriff  againft  fuch  Incumbent,  if  he  goon  there  after  fuch  Prohibition  di- 
redted  unto  him.     F.N  B   45.  (A.) 

And  it  appears  by  the  Regiffer,  that  another  common  Pcrfon  who  recovers  his  Prefentment,  or  has 
Title  to  prefent,  fliall  have  fuch  Writs  of  Prohibition  unco  the  ^Spiritual  Judges,  or  the  Party,  that 
they  fhall  not  proceed,  or  purfue  fuch  Appeals  Sec.  and  alfo  Attachment  againlt  them  if  they  do  6cc 
F.  N.  B.  43.  CB.) 

And 


Prohibition.  587 


And  if  tlie  Kiw  recoicn  liis  Prefcntmcnt,  and  has  a  Writ  unto  the  Bin\op,  and  his  Clerk  is  mninit- 
cd  and  induftcd  "If  the  Bifliop,  at  the  Suit  of  others,  hath  Provocations  or  other  Inftnimcnts  to  citctlie 
King's  Incumbent  to  the  Court  of  Rome  &c.  tlie  King  Ihall  have  a  Prohibition  to  the  Bdhop,  and  an 
Atrachment  upon  it,  if  &c.  JrJ  it  fcems  that  the  King  fl>all  have  a  Prohibition  ci;/;a.-/  r.r.y  Rcrc.ny 
had  before,  if  his  Prefcnee  he  ir.ftitiitc^  &c.  And  fo  it  fcems  a  common^  Pe,fon  Aiall  have  and  fue  luch  a 
Prohibition,  V/cn  the  Smt  is  to  try  the  T'ltle  of  the  Prefentmoit  or  Collation,  yet  the  V^  nts  in  the  Regifter 
arc  and  Ipeak  of  a  Recovery.     F.  N.  B.  45.  {C.) 

16.  3f  a  Patron  prcfents  A.  l)i|S  <t\ZX\  tO  W  CljUtClj,   aUtl  tIjC  Ri- 

Ihop  delays  him  for  Examination  tor  more  than  two  Months,  UJlJcrCilEi  bO 

tl3e  inte  Canons  Ije  oun:l)t  not  to  nelap  Ijiui  for  more  tljan  a  C^ontlj, 

mfiCreUpOn  a.  tearing  font  LapfC  lOltl  mCUr  iues  a  Duplex  (Querela,  m 

tije  Court  of  aiiDiencc,  tljcrcbP  to  inhibit  the  Biihop  to  preicnt,  anD 

atcer  the  6  Montlis  the  Court  of  Audience  gives  Judgment  tor  him,  fluD 

after  ti)E  Biihop,  notvuitljaanDino;  tijt0,  collates  by  Lapfe;  ann  tijctc^ 
upon  mtlje  court  of  05*  i\.  prnp'n  a  J^roljibition  to  tlje  Court  of 
Stutsience.  ^be  iSrobibitian  fljall  be  grantcti  i  for  noui  if  it  be  a 
lapfe,  ttjeCcclefinftical  Laui  iDill  not  remoijc  bim,  tbeCburclj  bc« 
inc  full*  ann  if  tlje  "BiOjop  be  a  Dtfturbcr,  tben  Ijis  Clerh  fljali  be 
remo\ed,ttotU3itbaanrunn:tl)e  l^lenartp  bp  6  ®ont!)$s  before  tlje  \m\t 
purcbajS'li;  for  Collation  luitbout  '2i:itlc  noesi  notniahean  iifurpa^ 
tion ;  aim  tljereforc  €iuacuimuc  ^la  isata,  it  noc0  not  appertain  ta 
tbe  ecclefiafticat  %m  to  proceen  m  tijc  Dupicr  Querela.  'CCr,  3  la» 
1%  E.  betiuccn  P^iui^r  ami  Smith,  ptoijibttton  nvanteli,  ann  Coiv 
fu!tation  nfnien*  ^      „,.,-•  t  ,  ,  r  -n  r 

17.  The  Delendant  fii^gelled  for  a  Prohibition  to  a  Libel  Jor  Vejama- 
tton  in  the  Jrchcs,  that  he  'is  an  Inhabitant  within  the  Diocefs  of  London, 
andfo  the  FrofectitioH  is  contra  Jonnahi  Statiiti  23  H.  8.  cap.  9.  u  was  ar- 
gued againft  the  Prohibition,  that  it  ought  not  to  go,  becaufe  there  had 
been  aCompoJition  bctiveenthe  Bifiop  cj  London  and  the  Archbipop  tor  this 
Turifdi£tion  ;  and  tor  that  Reafon  the  Archbilhop  doth  not  viht  in  the 
Diocefs  of  London,  and  that  fo  is  igobbtt's  Cate  Cro.  Car.  339.  But  per 
Keeling  ]  the  Diocefs  of  London  is  not  within  the  Jurildittion  ot  the 
Arches  but  the  Archbilliop  hath  a  peculiar  Jurifdiaion  there,  conliA- 
ino-  of '14  Paritlies.  And  Twifden  J.  laid  that  the  Compofition  between 
thi  Ordinaries  cannot  prejudice  the  People  for  whole  Benefit  that  Statute 
was  made  ;  and  the  Reafon  in  Gobbett's  Cafe  is  not  good  i  tor  the  Bi- 
lliop  of  London  cannot  agree  that  the  Archbifliop  thall  not  vilit.  The 
Court  was  divided.     Raym.  91.  Hill,  ij  &  16  Car.  2.  B.  R.  Ford  v. 

W'elden.  tt     /-        j  /•  .?  j 

18  A  Citizen  of  Briftol  had  a  Country  Houfe,  and  frequently  received 
the  Sacrament  in  the  Partp  Church  in  the  Country,  likewife  he  received  it 
frequently  in  the  Cathedral  Church  in  Brilh^l,  but  not  in  his  o^s)n  Parijb 
ClmrhiriBnfiol;  for  which  Caufe  he  was  cited  into  the  Ecclehaltical 
Court,  and  admonilhcd  ;  and  afterwards  tbr  not  obeying  and  receumg 
in  his  Parilli  Church,  according  to  the  Monition,  he  was  excommuni- 
cated  tho'  one  of  the  Surrogates  of  the  Court  but  the  Sunday  beiore  had 
with  his  own  Hand  given  him  the  Sacrament ;  and  tho'  he  there  pleaded 
this  and  likewife  his  receiving  in  the  Country  at  his  own  Pariih  there, 
thev  would  not  allow  it  ;  upon  this  Matter  appearing  to  the  Court,  a 
Prohibition  was  awarded.     Skin.  101.  Hill.  35  ^'ir-  -■  ^-  ^  Anon. 

19  A  Woman  was  libell'd  againft  in  the  Spiritual  Court  for  hiconti- 
ftencv'with  a  Manfince  dead.  It  was  fuggelled  tor  a  Prohibition,  that  the 
Man  was  her  Husband:  And  now  the  Spiritual  Court  could  not  examine 
v\  hethcr  he  had  been  her  Husband  or  not,  becaufe  that  would  tend  to 
laftardtze  the  Children,  and  diflbhe  the  Marriage  after  Death  ol  Party 
Holt  fiid.  If  there  were  a  Marriage  de  fafio,  tho'  illegal,  yet  they  Ihall 
rot  libel  to  avoid  it  after  Husband's  Death  ;  but  it  there  was  none,  the 
Death  ot  the  Man  ought  not  to  proteft  her  from  a  Profccution  tor  her 
Whoredom.     12  Mod.  419.  Mich.  12  W.  3.  Anon. 

20.  ivne 


588 


Prohibition. 


So  where  A.  2o.  Ouc  hav'wg  2  li'ivin  dkd,  and  one  of  them  libelled  againft  the 
marries  B.  o^^ej-  jor  Jacfitation  of  Marriage  ;  And  llie  fuggelted,  That  it  was  to  a- 
Tunuhel^ff    ^'^'^^  her  Marriage,  and  a  Prohibition  granted,  per  Holt  Ch.  J.    12  Mod. 

anil  tikes  L.    432.    Mich.  12  W.  3.    In  the  Cafe  of  Hemming  v.  Price. cites  7  Co. 

toJViU,  by    43.  b.  44.  a.  Kenn'sCafe. Sty.  10. 

vhom  he  ha'; 

Iflue,  and  dies ;  after  his  Death,  the  fortner  fucs  the  id  Wife  to  avoid  the  Maniaf^c,  and  held  it  could 
not  be,  becaufe  the  Hubband  was  dead.  Per  Holt  Ch;  J.  12  Mod.  452.  in  the  Cafe  of  Hemming  v. 
Price. cites  Ed  4.  Fit/..  Confultation,  pi.  5. 

Vent.  5.  21.  A  Libel  was  by  aBipJop  for  a  Pen/ton.     It  was  [uggefled  for  a  Pro- 

c"^'^'  R^R  hibicion,  That  he fied  before  his  o-wii  Cumun[[ary^  and  lb  would  be  Judge 
The  Bifhop  J"  h's  Own  Caufe :  But  a  Prohibition  was  denied ;  For  per  Holt  Ch.  J. 
of  Lincoln  v.  and  Eyre  f.  a  Suit  lies  before  a  Chancellor  in  iuch  Cafe,  like  the  Cafe  in 
fcniith.  Dyer,  wliere  the  Lord  fued  before  his  Steward.  Comb.  131.  1  VV.  &  M. 

B.  R.  Anon. 


*  As  to  De- 

determinabie  (N)  jHoat  fhall  be  faid  a  *  Defamation  Spiritual  to  maln- 
tuaiCourt,"it  tain  a  Suit  in  the  Ecclefiaftical  Court. 

was  refblv'd, 
That  fuch 

Detamation  i.  j^  ecjjiffcc  foK  54. 0»  CitlE  Confultatlo*    Coitfultittion  granteH 

ou.'^ht  to  1^  jp  pf QceCtI  in  Court  Cljtiftian  in  Caufa  Delamaclonis,  videlicet 

In-^s^"  VC   ^s  well  for  the  Crime  of  as    alfo  bCCiUlfC  tljC  SUtllDiCtiOIl 

Of  tljC  ^plVttUill  Court  per  Tumultum  &  rixas  Executionesque  t  fuas 
in  hac  Parte  debite  faciendas  nequiter  impedivit,  ex  Officio  ad  Animje 
„,      .         fuas  Correftionem  proceffit. 

That  It  ccn-  '- 

cevn  Matter 

merely  of  Ecclefiajlical  Cognizance  ;  as  for  calling  the  Plaintiff  Hcretick,  Adulterer,  Schifmatick  &C. 

adly,  It  muft  concern  Matter  merely  Spiritual  only  ;  for  if  it  relates  to  anyThinj;  determinable  at  CommoH 

Law,  the  Ecclefiaftical  Judge  fhall  not  have  Cognizance  thereof    5dly,Tho'  the  Defamation  be  merely 

and  only  Spiritual,  yet  the  Perfon  defam'd  cannot  fue  there  for  Amends  or  Damages,  but  the  Suit  ought 

to  he  only   to  piinijh  tie  Sin  &>  Pro  falnte  JniniK.     4  Rep.  20.  pi.  1 7    Trin.  25  Eliz.  B.  R.  Palmer  v. 

Thorpe. S  P.  2  Inft.  492,  495. F.  N.  B.  51.  (I)  in  the  new  Notes  there,  (a)  cites  22  E.4.  10. 

&  2E.4.  10.  that  the  Offence  in  this  Cafe  ought  to  be  merely  Spiritual. 

Koii  Rep,  2»  3if  a  99an  Ubelgi  in  tlje  @)piritual  Court  apintt  anott)et  for  rav= 
407.  pi.  44-  ing  tijat  Ije  luajsa  Witch,  or  tfjcson  of  a  witch,  tijo'  no  aitioa  lieis 
That  a  Pro-  toL  tijtg  at  Commou  latu,  i?£tno  liJtoijicition  flja'Uic  arantcu  i  for 
hibition  was  pcrljapss  l)c  map  ijanc  fome  Spiritual  proucicc  tljerebp,  if  Ije  be  tlje 
granted,  and  ^on  ot  a  l^ittij,  ^30 tljot  \)t  tnwmtu  a pi'icft,  yr  fuel)  UkCi  (JFor  it 

afterwards  a    f^g^^gj  jjj(  jjjg  Jq^.^^  jjf  j-j^j,  }Jg(,j;50  COUflff^    \\\    tljC  laft  UaOtO.S,   tljCP 

fo!  the  Rea- facing  fpoi^nn  tlje  Disjunctive*  ^pl^cportjj  14-  3a*aa»  auiungco* 

fons  here 

mentioned. Mo.  906.  pi.  1265.  Trin.  29Eli7,.  SPorriCf  v.  S^mitl),  a  Prohibition  was  granted 

to  a  Libel  for  calling  one  Witch  ;  And  afterwards  a  Confultation,  becaufe  an  A£iion  does  not  lie  for  it 
at  Common  Law,  uniefs  where  Death  enfues.  But  the  Book  fays  Qu^^re  now  fince  the  Statute  of  i  Jac 
for  it  has  been  adjudg'd.  That  an  Atlion  upon  the  Cafe  lies  fince  that  Statute. — 4Le.  92.  pi.  190.  S.  C. 
^vhere  the  Words  arc  Venefcam,  Sorlilegam  &  Incantatricem  Da.nionionim.  And  after  a  Pi-oiiibition  a 
Confultation  was  awarded  ;  And  it  was  held  there,  That  to  call  one  IVitch  Generally  an  Aftion  lies  not 
in  our  Law,  as  has  been  adjudg'd  .  But  to  fay,  She  hath  heivitcl'd  fuch  a  one,  an  Ae'tion  lies.  And  per 
Wray,  Witchcraft,  which  is  made  Felony  by  any  Statute,  is  not  punilTiable  by  the  Ecclefiaftical  Law  ; 
but  in  Cafe  of  Slander  upon  fuch  a  Witchcraft,  fuch  flandrous  Words  arc  of  KcclefialHcal  Jurifdiction; 
And  for  Witchcraft,  which  is  not  Felony,  the  Ecclefiaftical  Court  fhall  punifh  the  Party';  And  after- 
wards, in  the  principal  Cale,  a  Confultation  was  awarded. 

Error  of  a  Judgment  in  C.  B.  in  an  Aftion  for  Words  (vii.)  She  is  a  Bawd,  and  has  heivitcl'd  him  by 
iritchcraft  and  Sorcery.  It  was  held  by  Jones  &  CroVe  J.  that  the  Action  well  lies  for  the  laft  Words, 
(And  has  bewirch'd  him  &c.)but  for  the  firft  Words'twas  doubted  ;wherefore  ceteris  Abfentibus  a  Rule 
was  given,  That  Judgment  fhould  be  affirm'd.     Cro.  C.  261.  pi.  5.  Trin.  S  Car.  Hix  v.  Hollingfhed. 

This  was        3,  3if  a  c^an  libel  in  tlje  Ccciefiaffical  Court  againa  anotljer  for 

Held  to  be     jjjpmg  cfftam  words  of  tjim,  which  would  maintain  an  Aftion  of  the 

Cale 


Prohibition. 


Cafe  at  Common  Law,    fl  ^^rOljlfcltlOll  {lf6.  IX  4»  3^*1, 15.  R»  Ttirnainno  ccirain 
and^korn,  pCC  CUt,  $0.  3«,  39-  €U  03,  K»  bCtUJCCn  ^^///6T  ^«^  jB^r/- fjjj^.^.f;'^^ 

A'.V  ntljUCgCiJ*  that  of  lay- 

ing violent 
Hands  on  a  Pai-ron,  and  of  a  Penfion  by  Prerci-i prion  &c.     ;  Lev.  17.  Ci-andcn  v,  Waldcn. 

Jones  |.  tlioiin;ht  thefe  Differences  ought  to  b.-  obfervcd,  viz.  IFhcre  a  Man  calls  a  Womm  Whore, 
orfuch  like  Slander,  for  which  a  Suit  lies  in  the  Ecclefiujlicnl  Court  agaiiift  the  Party,  (ifthcThiiig  be  true) 
there  no  Prohibition  fh.ill  be  granted  ;  btit  ivhere  vo  Sail  lies  for  the  Primipnl  in  tie  Spinlif.il  Cc:irt,  but  tie 
Sl.mder  ,s  funijhMe  at  Co'vimn  L.xiv,  us  for  calling  a  Man  Thief,  T'raifor  &c.  there  if  the  Suit  is  in  t!ic  Spi- 
ritual Court,  a  Prohibition  lies.  But  if  the  Slander  be  fuch  as  liinders  her  Marriage,  {lie  may  me  either 
in  the  Spiritual  Court  or  at  Comn;on  Law.  So  if  Words  arc  fpoke,  wliich  are  onh  VN'ords  of  Reproach, 
Aftion  lies  not  at  Law,  neither  do  they  concern  any  Thing  whereof  the  Sph-itual  Court  li.is  Connfance, 
therefore  for  liich  a  Prohibition  lies,  as  Knave,  Drunkard'  Sec.  Ciaa;re  decco.  Tiic  Chief  J.  agreed  to 
this,  but  the  other  Juliices  faid  nothing.     Jo.  246.  pi.  5.  Trin.  7  Car.  B.  R.  Anon. 

4.  So  if  only  tl)e  W'ords  UlijtCl)  illt  proper  for  the  Jurifdiaion  of  the  The  Word, 
Eccleliaftical  Court  are  put  in  the  Libel,  anti  ttljIClj  UlOUiH  UOt  mam=  "IJJU.J'.JS 

tain  ail  acttcn  at  Coiuuion  Law  lij?  tijcmfcliies,  ya  upon  Suggeition  a,-;^,!  „;^  ^e 
to  tiic temporal  Court  oi  the  Rendue  of  tljc  l©ara0,  bp  which  tijcp  i')iit.  Per 

would  maintain  an  Afction  at  Common  Law,  a  PrOtjtbittOU  UC,5»  ^«  38,  ^''^^-  ^■'"'■ 
39.  (151  bCtlUCCn  Bntkr  ami  Rcirtlet  aUlUtlgCf  * 

5.  3f  a  ii'arrou  Of  a  Cljiircl)  calls  '^,  Drunkard,  upon  tuljicl)  SI.  1  B:wni. 
auluiers,  Thou  lieit ;  iftbcpai'fonfuc^s  1.  in  tlje  (gciicfiafrical  coutt  --.  ^..'- ''' 
fotsiiimgljimtljelic,  a  ^:)rolJttntIon  lie-3  i  became  tljc  Ecafou juIjp  ^'^  ™u 
ijc  gaijc  bim  tljc  Lpc  tuas  nat€?pintual,  but  ncpcnnino;  upon  a  Ccni-  common 
Dorai  Ctiinix  preccQcnt*  $|9»  7*  iflti* 'B*  between  simipa  and  }hncrs..L:xw -igMd 

pec  VlUr*  for  Slander, 

where  the  Words  fpoke  by  him  are,  viz.  Thou  art  drunk,  and  I  never  held  up  my  Hand  at  the  Bar  a.* 

thou  hart  done. Libel  was  for  faying.  Ion  he  like  a  hiavijh  Perfiii,  and yoit  hroiir^ht   one  to  f-^-ear  and 

loYhiL^ear      A  Prohibition  was  deny'd  ;  for  they  are  Irrevercnd  V\ords,  and  the  Spiritual  Court  o  ily  can 
punifh  them  Pro  Reformatione  I^Iorum.     Lict.  Rep.  zi-.  JMich.  4  Car.  C  B.  Prodtor  v.  Barley. 


a  a  If^oodcock 
_,    and  aFcol; 


labcGlermmwn  rues  ijuiifot  tljcfe  UBorbsi  in  Couct  Cbrulinn,  a 
3?roljibition fljaU be  grautco.  05.  K>  mmm.  ^,^,  ,^^ ^,-^^^ 

£lte3  ^^«   7-  III*  'B*  Word^-  the 

Clerk  fu'd  him  in  the  Spiritual  Conrt,  but  a  Prohibition  was  awarded.  Arg.  Godb.  44-.  pi.  514.  in  ths 
(dfe  of  Hye  v.  Dr.  Wells.—  cites  Trin,  4Z  Eliz.  Lovcgrove  v.  Bawens. 

7    3f  aC0anfaP0  of  31.  @>.  he  is  a  Railer  and  Sower   of  Sedition  a-  S.C.  Kob. 
mone  his  Nei-hoo'urs,  ije  CuUnOt  be  fUCti  fOf  tijCfC  Xmim  tU  tijC  €D  gf„,.g  V'' 

rleriamcal€ouvt,  becaufe  tljep  are  not  in  anp  rerpctt  €)piritual,  nGi- ^anatL 
trend)  to  any  S)piritual  Defamation,  but  auc  nicrclp  temporal  Forthc 
{^iclj.  16  l!a;a3,  Pamui  andsmth  rcfo^jcti,  auD  a  pro!3ibinan  ;;-i^^^;^-^^ 

SrantCti*  Lee°,  e>:cept 

it  were  in  the  Cliurcli,  or  tke  like.  Het.  i  52.  S.  C.  £c  P.  or  unlcfs  it  were  any  ways  tending  to  th-s 
Ecclcfiaftical  Rites. 

8  Tf  a  ^:-x\  calljs  a  q3inif{cr  Kna^  c,  i)c  map  be  fueti  for  tbid  in  tl)c  ^^^  Mich. 
Ccclefiaftical  Court,  ann  no  li)rof)ibition  fljall  be  grautcn*  ip.  7  Z\i^  b'r.'a  Pro- 

'B*  per  COl^e*  hibition  Nili 

&c.  was 

rranted  to  a  Libel  For  calling  a  Parfon  Knave.     Sid   -^r-,-  pl-  ^'^-  Mich.  a^Gu-  2.   B  R.  Anon. 

Vent   2     -\non    fecms  to   be  S.C.  and  the  Prohibition  was  s^r.inted,  becauic  .•/  did  not  a !■>':■.: r  tj  relate  t} 

aM,':^' concerning  his  Funciion. S   P.   12  Mod.  104   Mich.  8  W.  ,.   Melon  v.  Hawkins  (Dem  of 

Chicheiier> And  Twifden  J-  <i'itl.  That  it   was   adjudgd   about  41  EI17..   That  ;t  Prohibitioa 

Ihould  be  granted  to  a  Libel  for  faying.  Sir  Pricjl,  you  are  a  Kna-.c^  Sid.  -,ov  pi.  z6.—  S.  C.  cited  Venr. 

,     jl^  g  Q^ j-^  where  the  Prior  of  L.  libelled  againft  R-  and  L    for  callmcr  the  Prior  Chur/fin,  rotten 

Churl,  lud  canker- d  Churl,  a  Prohibition  was  granted  ;  for  th.e  Words  conccnKd  no  Spiritu  d  iNl.atier,  ard 
therefore  he  could  not  fue  for  them  in  the  EccklialUcal  Conrt,  neither  cou.d  he  have  a:iy  Adhoa  tor 
them  at  the  Common  Law.     2  l.nft.  4<;5. 


& 


590 


Prohibition. 


So  a  Prohibition  was  granted  to  a  Suit  by  a  Parfon  for  calling  him  Jio/,  ^fs,  and  Goofe,  for  they  are 
merely  Vi'ords  of  Heat,  and  do  not  touch  him  in  his  Profejfion.  2  Lev.  49.  Pafeh.  24  Car.  2.  B.  R.  Iscw- 
man  v.  Kir.gtrby.- —  ;  Keb.  28.  pi.  49.  S.  C. 

Bi<t  where  the  \Vord^  Ipcken  of  a  Clergyman  were  (viz  )  Thort  art,  or  you  are,  a  pitiful  pimping  Rafcal. 
It  was  lii"gell:ecl  for  a  Prohibition,  That  the  Words  were  Ijiokcn  in  Putlion,  he  being  provoked  by  the 
Parfon,  who  faid,  He  w  as  a  Beggar,  and  was  coin-;  to  run  his  Country,  and  was  ufed  to  (leal  his  Neigh- 
bours Ducks  &c.  and  that  he  iiad  alleg'd  this  hlatter  in  the  Spiritual  Court,  but  it  was  refufed.  A  Con- 
lultation  was  granted  upon  Debate.     Lutw.  1055.  Pafch.  10  W.  3.  Osborne  v.  Poole. 

Fo  where  a  9.  Jf  a  S^ilH  ffl)?0,  '^\)\A  he  will  not  hear  Sermons  made  by  thofc 
Jlotion  was   ^^.^q  ^^^  „^,^(^ie  MuiUters  bv  Bifliops,  !)C  Uinp  llC  fltCD  fOt:  ti)iS  tit  COUlt 

bitimf to  t'lie  Cfjriffiau,  ann  no  iproijibition  ifljaii  be  grautcD,  ip,  7  Jn»  %.  pec 
Spiritual     Cur*  nrs)unsco» 

C:ourt,  the 

PlaintilV  being  profecutcd  there,  for  Taying,  He  would  not  he  of  the  Communion  of  the  Church  of  England  ufcn 
any  Conf:c'.cratn,n  for  he  belieied  if  he  w.is  hef:ould  be  dami'd  ;  And  the  Pveafon  offered  for  the  Prohibition 
was  Becaufe  the  Libel  was  for  a  Contempt  againft  the  Ccmmon-rrayer Bcok,  whereas  this  was  not  fuch  an 
Offence  The  Court  was  of  Opinion,  Tliat  tho'  'tis  not  an  Offence  againll  the  Common-Prayer  Bosk,  yet 
"ris  certainly  of  Spiritual  Cogniiancc,  thci-cfore  the  Prohibition  was  denied.  S  Mod.  338.  Mich.  11 
Geo.  i;;25-  Sweetnam  v.  Archer. 

A  Libel  was      10.  Jf  fl  C^fllt  faP-j  Of  fl  jfCUK  CO^Ctt,  She  will  be  a  meddling  with 

ifr'-^f",,  a  Thing,  ijc  \xm  &  fiicO  foc  It;  lu K\)Z  €,ti\t{m\t>\\  Coutt,  aitti  no 
I;w'^lr»SLPro})itiittonfljanbeD;ranteli,  becaufc  tm  i^  a  epintuai  Defama^ 
toi-aiitvith  ticiu   ^.  pla^oe.  pec  Cur*  pro!jibition  nenteo* 

any  Man,  inti- 

niatirg  that  Ihe  would  be  naught  with  any  Man.  But  a  Prohibition  was  granted,  becaufe  they  are  idle 
VS'oids,  and  not  punilliablc  in  the  Spiritual  Court.  Het.  167.  Pafch  7  Car  C.  B.  Cromoton  v.  Waterford. 
—  Litt.  Rep.  365.  Anon,  but  is  S.C  and  reported  exactly  the  fame, only  that  the  one  is  in  French  and 
the  other  in  Englifli. 

It  is  not  an         1 1 .  SIf  a  S^aU  fa)?0  of  anOtbCr,  -©ijat  he  keeps  a  Bawdy-Houfe,  aitH 

*^l"uf^"'  i£i  fuco  for  ti)i0  in  tije  ^^pintual  Court,  ttjo' Ijc  map  Ijabc  ;3ttion  at 
rommoY'  Common  laui,  pet  ttje  spiritual  Lata  \m  a  Concurrent  JurUDiftion 
Law  but    tijercin,  ano  tlje  iiBorms  are  mi,teo,  ano  tljerefore  no  I3roi)ibition  \m* 

only  by  the    27  l)^  8*  I4.  b.  pCt  JFitjljlTbettr 

Cujlcm  of 

London,  and  fo  the  Aftion  fhould  have  been  in  the  Spiritual  Court.    Cro.  El.  (J45.  Anon. Theft 

Words  are  aftion?ble,  becaufe  the  Party  may  be  indifted  for  it.  Per  Cur.  Palm.  3-9.  Trin.  21  Jac; 
B.  R.  in  an  Anonymous  Cafe. 

D.  fued  T.  in  the  Spiritual  Court,  becaufc  tho'  fhe  was  of  good  Fame,  and  kept  a  Viftualling-Houfc 
in  good  Order,  yet  the  faid  T.  had  publifhcd.  That  D.kept  an  Houfe  of  Bansdry.  T.  now  brought  a 
Proliibition,  and  well ;  Per  Cur.  For  D.  might  have  had  an  Aftion  for  that  at  the  Common  Law  ;  efpe- 
c'-  .lly  where  fl'.e  kept  a  ViHuaUing  Houfe  as  her  Trade.  And  the  Juftices  faid.  That  the  Keeping  a  Bro- 
thel-Houfe  is  inauirable  in  the  Leet,  and  fo  a  Temporal  Offence  ;  And  fo  was  the  Opinion  or  the  Court 
T.  7  Car.  B.  R.' Mrs.  i^OilauD's  Cafe.     Noyii7.  Thorne  v.  Alice  Durham. 

Libel  was  in  the  Spiritual  Court  for  calling  a  Woman  //  'hore  \  and  laying,  'fhatpe  kept  a  Baiidy-Houfe, 
and  after  Sentence  Prohibition  was  moved  for  ;  and  urged  contra.  That  they  fhould  have  alleged  below, 
That  the  \^  ords  were  fpoke  at  one  and  the  fame  Time,  and  then  they  might  be  prohibited ;  but  now 
that  they  have  JurifdiiStion  below  for  calling  a  Woman  JVhore,  and  that  was  all  they  gave  Sentence  for, 
they  would  not  grant  a  Prohibition,     ii  Mod.  236.  Mich.  loW^3    Anon 

12.  3fa95anrap0  of  anotber  tbat  he  is  the  Pander  oi'  y.  s  be  map 
be*  fuebintbe  Ccctefiafttcal  Courts  becaufe  tbe^isinfi cation  of  tbis 
sc  Koy~  UBortitfitBcUfenotun,  anoit  founti0toa  @)pintuaIDciamat!on.  C9* 
sV—  s'c.  2.  car^ictDCsi  $iJBbttlei>,  pec  Dormcritigc  anu  3!one,5  contra  m\)\t' 

Lati55  —  locfe* 

S.C.  cited 

Mar.  66.  in  pi.  10;. 

T0246.S.P.  13.  3|f  a  $^an  CipiS  to  anOtber,  Thou  art  a  Bawd,  a  filchv  Bawd, 
Anon  but     ^^d  a  Common  Bawd,  aUH  tOC  tOtS  be  (0  fUCtl  \\\  €.mn  Cbtlffian,  nO 

s  c  T°rin  -  Pcobibitton  itcsi,  becaufe  be  cannot  be  uintrtea  for  tbisi,  n  it  be  true, 
Car.  B.  R.' '  Dccauic  bc  tJib  not  Tap,  'iOjat  be  kept  a  Bawdy-Hcufe,  ujbici)  iuouiBbe 
And  there    pccfcntable  in  a  leet.  i^icb."  Car.  brtuieen  Hoiimi/oed  anu  Hicks. 

\3:i 


Prohibition.  t^i 

\^tv Cur.  Confultation  grantcu after  proljibitton.  q3tclj.  by  jon.,s  t 

^  Car*  X'!.  i\.    bcURCu  ^^ncs  andGtovcr.  \^xiA)\\i\tm\  lua^)  ticmcij  ^"'■""'"^' 

UlfjCrCIt  Uiajj  faiO,  he  was  a  Bawd,  and  would  die  lo.  fiuk  ;i'"ci- 

tlicr  in  the 
Spiritual  Court  oi-  atCommon  Law,  and  Prohibition    docs  not  lie,  for  flie  has  an  Eleftion  to  fue  in  cither 
and  took  aDiverfity  between  fuch Words  and  Woixis  of  Kcproac  h,  as  Knave,  Drunkard  Sec.  To  i\liich 
the  Ch.  J.  iigreed,  but  the  others  faid  nothing. 

Libel  was  for  faying,  I'hou  nrt  .z  Daivd,  and  there  tuerc  t-xo  Couple  upon  ove  Bed  in  iJyHovfe.  The  C.'omt 
fiiid,  That  the  AAords,  Thou  art  a  Bawd,  is  a  Thing  Spiritual,  and  therefore  r.o  Prohibition  lh..ll  be 
granted  thereupon.     Palm  5-9.  Trin.  2ijac.  B.  R.  Anon. 

Libel  was  for  faying,  7hoti  art  an  Old  Baix/d;  and  thereupon  a  Prohibition  was  granted.  But  it  ivas 
moved  for  a  Confultation,  for  that  it  had  been  adjudg'd  1 5  Jac.  That  for  fa\  ing,  i'hou  art  a  B.riid,  no 
Action  lay  at  Common  Law  ;  but  otlierwiCc,  if  he    had   laid,  Tho\i  kccpeti  i'li.vzi.dy-fj^nje.     W  iicre- 

upon  a  Confultation  was  gianted.     Palm.  511.  Hill.    5  Car.  B.  R.   Roberts  v.  Brown.  Tlie  fame 

Diverfity  was  t.iken  per  Cur    Palm.  5-9.  Trin.  zi  Car.  B.  R.  in  an  Anonymous  Cafe.^ ■  Same  Ditic- 

i-ei-ce  Cro.C.  229.  Mich.  7  Car.  6.  R.  in  il^olillOuMD's  Cafe  ;  where  the  Words  were,  T'bcu  art  a  Baud, 
and  I  wilt  prove  thee  a  Bnivd  ;  and  bcc.iufe  no  Action  lay  at  Common  Law ,  a  Proliibition  was  deny 'd. 

A  Prohibition  was  moved  for  to  the  Spiritual  Court  upon  a  Libel  there  for  calling  the  Plaintiff  a 
Baud.  But  the  Court,  after  Argument  and  Time  taken  to  confider  thereof,  rcllilv'd,  That  a  Prohibi- 
tion did  not  lie,  becaufe  the  \A'ord  i.s  not  actionable  at  ("ommon  Law.  INlich    iz  Geo.  2.  B  R.  I^ocky  v. 

Danpcrfield.—  And  denied  the  Cafe  in  Raym.  1 1  5.  Ward  v .  Marlli A  Prohibition  was  denied  for 

the  Words,  7'hon  art  a  *  Bawd,  notwithltanding  it  was  objected,  That  the  Words  were  fpckcn  at  U'cfi- 
minjler,  and  that  the  City  of  Weflminller  is  an  ancient  City,  and  that  there  is  an  ancient  Culloni  v/itli- 
in  the  laid  City  that  Whores  Ihall  be  punifhed  by  Imprilbnment  ;  and  alio  that  rin  ylciion  had  heen  brctioht 
for  tkefe  IFords  in  the  Marfhalt's  Court,  and  Judgment  jcr  the  Plaintiff.  10  Mod.  ;S4.  Hill.  ;  Geo.  i, 
B.  R.  Savil  V.  Kirby. 

+  S  P.  2  Salk  552.  pi.  15.  iMich.  i  Ann.  B.  R.  in  the  Cafe  of  Galizard  v.  Rigault 

14.  3!f  ailDanmn  fue^  aitotljcr  for  minnsto  Ijcr  tljcfe  motXiSi,  Thoa 

art  a  Queans-,  a  l^rOljtlntiOU  ilCSi  i  bCCaUfC  It  13  llOt  IDCU  kllGlUlt  what  is 
intended  bv  the  W'ord  Queane,  attU  It  IS  bllt  a  X0OX^  Of  ^lUXtV.  'EV* 

3  Car.  15.  E.  bctuiccn  Biackiha-.o  ano  Stephens,  per  Cur.  l5ra!)iuitioii 
mgsrantco.  ?i}icl).  s  car.  15.  K.  bctui-xtw 'V^-f  anD  G;oj.r,  « 
33rol)ibition  lua.s  grantco.  „  , ., . 

15-  3f  aS0an  faVg  to  anOtijCr,  Thnu   art  the  Son  of  a  Whore,  and  f^'-o'"'"tion 

thy  Mother  Was  a  Bitch,  auti  ijc  fuc^  lit  tije  eccicfiaffical  Court  forj'I^e'S}."* 
t\)\%  a  profjibttiou  lies,  becaufc  tljofe  arc  but  BDorcs  of  anger.  £?3icl).  aiucai  com-c 

3  C  ar.  bettoCeU  Loijunes  autl   Sn-  Arnold  HtrUrt.,  a  PrOljlbltlOll   luasi  f'>'-  '^^^illins 

cratitcQ*  °"!iffT'/ 

"  andliajcal 

and  Son  of  a  Whore,  beCaufe  they  are  only  Words  of  Heat  and  Paffion,  and  for  that  Purpofe  this  Cafe  of 
Lownes  v.  Herbert  was  cited;  But  the  Prohibition  was  deny 'd  per  tot.  Cur.  for  the  Words  import. 
That  his  Mother  is  a  Whore  and  he  a  Baftard;  but  in  tlie  Caie  in  Rolls,  the  Words  coupled  v/ith  {^Tiy 
Mother  is  a  Bitch)  makes  alt  the  Words  inferJiLle,  but  here  they  are  an  EccJefiallical  Scandal.  And  in  ano- 
tlicr  Suit  by  the  Mother  for  the  fame  Words,    a  Proliibition  was  deny'd,  for  both  the  Mother  and  Son 

are  fcandalizcd  by  the  Words      3  Lev.  119.  Trin.   5  5  Car.  2.  C  B    Vincent  v.  Alpy —  S.  C  cited 

and  approvM.  1 1  Mod.  11 ".  Trin.  6  Ann.  B.  R.  in  the  Cale  of  tljavb.  jiiOrft'.  Where  Libel  was  in  tlie 
Spiritual  Court  by  the  Mother  and  Son  for  calling  the  Son  Bafiard  and  his  Mother  a  IVhore  by  Impli- 
cation ;  And  a  Prohibition  was  deny'd. 

Prohibition  lies  for  calling  one  Jflwrefin.  Per  Richardfon  ;  Lat.  1 56.  in  theCafcof  Lewis  v.  Whittoa 
cites  Mich  &  fac.  B.  R.  Cradock  v  Thomas. 

A  Libel  &c.  for  thefe  Word.s,  ^fhou  art  the  Son  of  a  Whore,  and  thy  Mather  flood  in  a  White  Sheet  for  a 
Ba(lard,  *  or  Words  io  that  Effect:  It  was  moved  for  a  Prohibition,  bccault;  thefe  are  only  Words  of  Heat 
and  PaiTion.  But  to  that  the  Court  anfwer'd,  That  if  it  had  been  only  for  the  firft  \^'ol■ds,  (vir..)  Thou 
art  the  Son  of  a  Whore,  thefe  would  have  been  only  VN'ords  of  Heat  ;  but  here  he  comes  to  Particu- 
lars, viz..  (Stood  in  a  \Miite  Sheet)  Then  it  was  moved,  That  here  it  is  not  a  pofitive  Affirmation  in 
the  Libel  of  fpeaking  the  VS'ords,  but  thcfc,  or  PFords  to  that  FfffH.  But  to  that  the  Court  anl'wer'd, 
'Iliat  this  /•/  tlieir  ufuat  Fcrtn  in  the  Spiritual  Court  ;  antl  fb  for  Time  they  fay,  in  the  Months  of  Janu- 
ary, February  Sec.  all  the  Months  of  the  Year.  But  Alkins  inclined,  That  that  was  Naught  ;  but^all 
the  reft  Contra,  and  fo  they  would  grant  no  Prohibition.  Frceni.  Rep.  295.  pi.  547.  Trin.  l6:ij.  C.  B. 
Aron See  (.P)  pi.  2. 

It  was  faid  by  Holt  Ch  ].  That  if  A.  calls  B.  ^Son  of  a  Wlcre,  He  can't  Libel  in  the  Spiritual  Couit, 
but  his  Mother  may  ;  becaule  in  this  Cale  'tis  no  Spiritual  Dejaination  to  the  Sunt  fmt  'tit  to  the  Mother.  1 1 
Mod.  112,  113.   Paich.  6  Ann.  B.  R.  Hoskins  v.  Lcc. 

16.  ?faSBan(arstoat©oman,  Thru  art  aWhorcandthy  ^ii'i-f';'7';^.';^ 

dren  are  Raftard.s,  atttl  fOr  tl)lC  tDC  l©OUiail  fUfS  lit  COtirt  Cl)rmian,  g./^;,,.  '^^^ 

no  l^rolnbitioti  Ues,  for  t!)c  ^^c^tatutc  C  I.  cf  x-^aiiaiOQ  ..g,  Thou 

lanes 


Prohibition. 


at  u  iFhre  (;^53s,0  tljc  ecclcfiaffical  juriftiictioit.  93tci)»  3  Car.  15.  R*  betmccn 

B.iiijAy-Hoiifi;   a  Prohibition  was  granted  per  tot.  Cur.    For  liiying,  Thou  art  a  Bawd,  and  keepcft  a 

B.nvdy-Houfc  is  punifliablc  by  the  Common  Law  ;  and   for  faymg,  Thou  art  a  IVhore,  ivithotit  making 

jiienlh-i!  IT  j.-irtiiular,    i.s  I'ot  to  be  puiiifli'd  in  the  Spiritual  Court;  snd  a  Precedent  wa.s  fl-.ewn.   Mich.  5 

Tac.  ^glfljClS'-'^  Cafe,  Tliat  a  Prohibition  lies  for  faying,  Thou  an  If'l.wre,  a7:d  a  T.iiJitedlf'  lore,  and  a 

.  D'rty  iVicrr.      Jo.  44.  Mich.,  ji  Jac.  C.  B.  Binch  v.  V\  ood. So  it  was  held  per  Cur.  That  faying 

thou  art  .1  It  I  ore  .aid  a  7l.tef,  or  thou  keepelt  a  Bawdy-Houfe,  are  Temporal  Matters,  and  the  Party 
fliall  not  proceed  in  the  Spiritual  Court ;  whereas  if  it  were  only,  Tien  art  a  U'hore,  a  Libel  lies  in  the 
Spiritual  Court.     aSalk.  551.  pi- 15.  Mich.  1  Ann.  BR.  Galizard  v.Rigault. 

Libel  was  for  calling  a  Woman  Impudent  W tore.  It  wasobjeCbed,  That  it  was  only  a  Word  of  Paffi- 
on,  and  that  later  Opiiiions  have  been,  that  unlefs  fome  A6t  of  Fornication  was  exprel.s'd,  a  Prohibition 
fhuuld  be  granted.     But  it   was  denied,  becaule  Whoredom  is  an  Offence  of  Spiritual  Cognisance.     I 

Vent   7.  Hill.  2o&2iCar.  2.    BR,   Herbert  v.  Merit. Sid.  404    S.  C  by  Kame  of  £15iiUt  v.^^lT* 

llirt,  lays.  This  Ca'e  was  ruled  upon  View  of  Precedents,  which  formerly  were,  that  Prohibition  fliould 
go  ,  but  of  late  that  it  fliould  not. 

So  Prohibition  was  pray'd  to  Iby  a  Suit  for  calling  a  Woman  Whore,  but  upon  Confidcration,  after  two 
Arguments  at  the  Car,  and  on  the  Bench,  it  was  deny 'd  ;  for  it  is  an  Ecclefiallical  Slander,  and  examin- 
able and  [unifluble  in  the  Ecclefiallical  Court,  and  not  to  be  confider'd  only  as  Words  of  Scolding  and 

Heat.     2'Lev.  6;.  Trin.  24Car.  2.  B.  R.  Betniffv.  Pepple. S.  P.  Fieem.  Rep.  45.  pi- 51.  Trin. 

J6-2.   B.  R.   Mcdlifi  6c  Ux.  v.  Buckold  &  I'x.  and  it  fcems  to  be  S.C- S.  Col  BitniS   v. 

^iffdC.  Vent.  220.  fays,  It  was  for  Words  Ipokcn  of  the  Miftrels  to  her  Servant,  (viz)  Go  tell  thy 
AJiftTefsH'bore,  Jbe,  is  aU'lore,  ai-d  /  Kill  pioie  it.  Hale  Ch.  J.  f.iid,  That  they  cannot  be  Words  of 
Keat,  as  if  fpr.kcn  when  the  Parties  had  been  fcolding,  but  were  fpoken  deliberately  to  the  Servant  in 
the  Party's  Abfencc  ;  and  !'aid,  That  formerly  they  would  not  prohibit  unlefs  the  Words  implied  forae 
Ad  done',  as  in  Cafe  of  (fatOU  v.  31vl0fft  Cro.  C.  no.  but 'tis  reafonable  this  Suit  fliould  proceed, 
it  being  for  Ma'.ter  of  Slander,  whieh  is  to  be  punifhed   by  publick  Penance ;   fo  no  Prohibition   was 

granted. But  Trir.  167S,  B.  R.  A  Prohibition  was  granted  toa  Suit  for  chilling  aWonian Whore, 

becaufe  only  a  V\  ord  ot  heat  and  Pallion.    tieem.  Rep.  296.  pi.  547.  Anon. 

Wiiere  the\^''ol•ds  were  2''ou  are  aMlxre  and  ply  inMocrfelds ;  The  Suggeftion  for  a  Prohibition  was, That 
the  Vk'ords  was  /poke  in  London  where  an  Action  lies  for  fuch  Words ;  And  a  Prohibition  was  granted  for 
that  P.cafon  ;  P'or  otherwife  Suits  might  have  been  in  the  Spiritual  Court  for  fuch  Words,  tho'  not 
iingly  for  t!ie  Word  V\niore,  it  being  a  Common  Word  of  Brav.ling;  But  otherwife  where  joined  with 
other  Vv'^ords,  which  fliew  the  Intent  to  defame  in  that  Kind.  Vent.  545.  Mich.  51  Car.  2.  B.  R.  Anor, 
B:it  for  faying  you  are  a  Common  Jf^oman,  and  fuch  ffomen,  as  )oii  are,  jieier  have  ai,y  Children,  the  Suggeftion 
for  a  Prohibition  was,  that  there  was  a  Cuftom  in  London  to  punifh  Whores  by  Carting  and  Whipping 
&c.  and  averred,  That  if  any  fuch  W  ords  were  fpoken  by  him,  they  were  fpoken  in  London  &c.  a 
Prohibition  v/as  denied  per  tot.  Cur.  becaufe  this  Culloni  extends  only  where  the  Woman  is  direftly 
called  Whore,  and  not  to  Words   from  which  it  may  be  collected  thatflie  is  a  Whore.    2  Lutw.'io^g. 

Hill.  5.  W.  ;.  Houblin  v.  Milner. So  where  a  Libel  was  for  faying,  Thu  art  a  cuckoldly  old  Dog, 

talldo-ivn  the  i';>rfc  ^'ci/v/Z'^/c  it  was  fuggeged  here  as  in  the  Cafe  above  about  the  Cuftom  ot  London, 
whereupon  a  Prohibition  was  granted,  audit  was  now  moved  for  a  Confultation,  upon  the  R'eafons  in 
The  abovementioned  Cafe,  that  the  V\'ords  mud:  be  dlrettly  and  exprefsly  dcfain  itory,  and  infifted  upon 
the  faid  Cafe  ;  But  per  Cur.  That  Cafe  hath  been  denied  to  be  Law  by  this  Court,  and  it  hath  been 
ruled,  That  a  y  Words,  which  are  defamatory  and  punifliable  in  the  Spiritual  Court,  are  triable  inLon- 
don  by  the  Cuftom  there  in  an  Aftion  on  the  Ca'e,  v,  herein  Damages  may  be  recovered,  fo  in  the 
principal  Cafe  the  Prohibition  was  held  good,  and  the  Confultation  was  denied.  S  Mod.  1 1  5.  Hill.  9Geo. 

1725.  Hotchkis  V.  Corbett  Upon   Suggeftion  of  the    W^ords  being  attionable   in  London  by  the 

Cullom  for  calling  a  Woman  Whore,  the  Court  would  not  grant  a  Prohibition,  without  Oath  made,  that 
if  any  fuch  If  ords  ivere  fpoke,  they  tuere  fpoke  it)  London  and  not  elfe-where.  4  Mod.  567.  6  W.  &  M.  B.  R. 
Anon. 

Libel  8cc.  for  thefe  Words  Tou  are  a  danu'd  Bitch  IVhore,  and  a  Pocky  Whore,  and  if  you  laie 
rot  the  Itch  you  have  the  Pox ;  and  moved  for  a  Prohibition,  becaule  an  Attion  lies  at  Common 
Law  ;  and  a  Difference  was  taken,  v  here  the  Word  Pox  could  not  be  intended  but  of,  the  French  Pox, 
by  the  Words  that  were  fpoken  with  it,  there  Aftion  lies  ;  and  Holt  faid,  That  wh^re  the  Word  Pox 
was  joined  with  the  Word /#7wf,  it  fhould  be  intended  of  the  i^rf?;f/j  Pu.v,  and  Prohibition  granted. 
12.  Mod.  242.  Mich.  10  W.  5.  Grimes  v.  Lovel. S.  P.  in  the  fame  Term  12  Mod  248.  Whit- 
held  V.  Powel. 

But  where  Words  were,  You  are  a  Brandy-yiofed  Whore,  and  you  Stink  of  Brandy  ;  It  was  moved  for  a 
Prohibition  that  the  Words  rather  charged  Intemperance  than  Incontinency,  but  the  Prohibition  was 
denied.  2Salk.  69;.  Pafch.  4  Annx  B.  R.  Acebury  v.  Barton.  1 1  Mod  48.  pi.  1  5.  S.  C. 

Libel  &c.  for  thefe  Woras  S.  F.  Wife  of  R.  F.  is  a  Whore,  and  her  Husband  is  a  Cuckold,  and  that 
/.'«  brought  up  his  Daughter  to  follow  the  fame  7'rade,  and  to  be  a  Whore  like  herfelf,  a  Prohibition  was 
moved  for,  aid  granted  !Ni(i,  but  afterwards  was  difcharged.  Lutw.  1057.  Mich.  5  W.  &  ]\1.  Moore 
V.  Fawcet. 

A  Libel  was  for  Saying,  She  hadaChild  at  S.  a  Prohibition  was  prayedfor,  but  denied,  it  being  a  Kind 
of  Fornication.  2  Kcb.  555.  pi.  62.  Hill.  19  &   20 Car.  2.  B  R.Hodftfon  v.  Brown. 

So  for  theic  Words  fpokenin  London  (viz)  Thou  had/l  a  Baflard  after  thy  Hinb.md's  Death.  Itbeing  after 
Sentence,  Court  doubted  whether  to  grant  a  Prohibition,  and  yet  per  Cur.  the  Pla'ntitf,  nctwithftard- 
ing  the  Sentence,  may  bring  an  Adtion  in  London  for  the  fame  Words,  to  v/hich  this  Sentence  cannot  be 
pleaded  in  Bar  ;  and  ib  the  Party  be  doubly  puniflied  for  one  and  the  fame  Thing.  Curia  advifire   vult. 

Carth.  215   Hill.  3  W.    &    M.B.    R.   Hawkins   v   Cook, Show  2  5 -•  ^  '^'  '^y  ^='"^e"^^'°^^f  ^ 

Hawkins. 


Prohibition.  ^pc^ 


Rule  was  to  llicw  Caufe  why  a  Prnliibltion  fliould  not  f;o  to  a  Suit  &c.  for  thdh  Word';,  SI '•  w.if 
never  married,  ayid  }:ezer  had  a  Husbayid  (;md  •u;bat  is  her  hopfj'ul  &>»)  fn/iiieiido,  Tliat  j/je  itvjj  rt  l/'hore  ; 
And  uiioii  Debate  the  Rule  was  dilcharged,  foi-  the  Court  wasclear  in  Opinion  tiiat  thcle  Words  were 
a  Spiiitual  Defamation.  Carth.   49S,  Mich.  1 1  W.  5    B.  K.  Plifs  v.  Sniitli. 

A.  \'^id  to  ti.ThMpe  made  her  fltisLuid /I  Cuckold;  B.  liHcllcdagainrt  A .  in  the  Spiritiul  Court ;  a:i(i 
it  was  moved,  that  tlieVN'ords  y\ere  fpokcn  in  Loi.don,  and  that  tho'  it  is  not  callbwler  ly i ore  A\\xcx\s ,  yet 
it  is  calling  her  To  by  ImfVtcatior..  Per  Holt  Ch.  J.  if  the  Cullom  of  London  extends  to  puaifli  a  VV'omaa 
that  makes  her  Hu.sband  a  Cuckold,  then  a  Prohibition  n-.ay  be  granted  ;  Forthe  Found.ui..ii  to  grant:* 
Prohibition  for  calling  a  Woman  Whore  in  London  is,  bscaufe  they  by  Cultom  punilli  Whores  theic 
by  Cartingthem,  and  an  Action  lies  there  for  callinga  VNoman  Whore  ;  And  afterwards  at  anotiicr  Day 
this  Term  they  granted  a  Prohibition,  becauie  thele  Words  are  actionable  in  London.  uJilod.  lyj. 
Iilich.  7  Ann  B.  R.  Bennct  v.  King. 

I •7.  3if  a  i53an  raps  to  nnOtljCr,  Thou  art  :i  Drunkard,  or  a  drunken  *^'^-^^- 
Fellow,  or  an  idle  drunken  Fellow,  if  n   ^Ult  LiC  111   tlje  ^dpiritUal  "■'^^'^'■'''" 

court  for  X\)\%  a  j^roljibition  licss  i  for  tijt.oi  is  not  Spiritual  %\m  I  c"  And 
Jicr.  ^"3101).  s  Car.  13.  R. '  hcmtcn  stan-  and  Cnch'-do.    proljtbition  -,  juiUccs 
Uia0  Rcantcr!  ■■>  lor  tf)ci)  arcUBortig  of  ]^)cat  anti  iMfton,  ann  not  ^■■^^e.fo'-.ti.c 
anj)  g^piritual  Detamanou.    19.  15  Car.  05.  R.  t  bctmecii  Hayms  J,;"';£"""' 

niiU  J^cjutcr,    tijC  J©Ori!S  mere,  Thou  arc  a  Drunkard,  and  drunk   3  vVord!are 

Times  a  Weeks  proljUntiou  luaS"  crautcii  agnuift  ti)c  fi^pinton  ofbuta?w- 
Oorrklnn  ODUt  attcr  93ic!).  15  Car.  it  mas  moncti  aivaiii,  auD  per  ■'••™"""'^- 
Cur.l^roijitJittouuiayijrantcti,  tor tije Court  faia  tijcp  fljoulti  not '•'■^''' ""'''* 
1)0153  J3ica  of  a  3:>cfamanun,  toljcrc  tljcp  Ijaiic  not  ©riauial  anti  Direct  7171}" of 
Cogiu^ana'oftOcfact  toijercof  Ije  is  accufcn,  astijcp  fjauc  not  oftf.r^^///;^; 
Drunt^enncf0,  unlcf^  ss  aniPffcncc  aryainn  tijc  Ccn  C0iuman5='!'''f'<^';^-'J-' 
nicnts,  30  ail  mm  arc.  £5  ef 

ther  Court  might  meddle  with  Dririkennefs  to  punifhit;  fo  that  it  is  not  meerly  Tempoi-al  ;,  biu  he 
aflcnted  to  the  Grant  of  a  Proliibuion,  and  the  Party  may,  if  he  will,  after  IX-claration,  demur  there- 
.to.     And  a  Prohibition  was  granted. — Jo.  305.  pi.  1.;.  S.C  And  Jones  (aid,  That  when  he  was  lufticc 

in  C.  B.  a  Prohibition  was  awarded  for  fuch  Words  in  Martin  Oilthorp's  Cafe S.C.  Cro.  C.  509 

by  Name  of  ^tarrc  b.  SUdiijOiQ,  a  Prohibition  was  a\'.  arded,  beciuie  thel'c  Words  tc>:d  is,  and  are 
pinipable  /!S  a  7e»:pralO_ffe/;ce,:xT.d  not  in   the  Ecckfia!li:al  Court. 

I  Jo.  441.  Mich.    I  5   Car,  B.  R.   Swayre'.s  Cafe  teems  tobj  S.  G.  where  the  Word.'!  were,  Then  art  a 

common  Lrui.kard,   and  a  Prohibition  was  granted. M.:r.  6.  pi    1 1.  Anon,  but  is  S.  C. Ibid.  66  pi, 

105.  S.C Per  Jones  J.  If  one  Lbels  for  callin:^  him  <«  Drunkard,   a  l-'rohibition  dt  c<  po'  lie;  but 

othcrwi'e  it  is  tor  layi  ig,  that  fce  ci/'.7.f  iiV.vw,^.  Richardfon  faid  qu^re  if  not  for  another  Reafon,  [viz  ] 
Becaufe  the  A£t  is  punilhable  by  the  Statute.     Lat  155.1 56.  in  Cal'e  of  L^ wen  v.  Whitton. 

Where  a  Libel  was  for  faying  ro^  Parfon,  vii.  <7'kiii  art  a  pitijul  dnoikoi  Par/on  and  a  drunken  Puppy, 
a  Prohibition  was  granted,  notwithltandiiig  they  were  fpoke  of  a  Parfon.  3  Salk.  2S8.  pi  y.  Pafch.  z 
Ann.  Brown  v.  Tanner. 

18.  3fa  ^an  rapd  to  anoilKr,  thou  art  a  Cuckoidiv  Knave,  nnn^'-°<^.539- 
fortljis  ijeaurs  Ijis  jJLnfc  fuc  in  tijc  ^pirituai  Court  for  Dcfania-^.^f. '•;,^  c 
tion,  no  |i5iG|)iiritton  IicSi  becaufe  tljc  motHij  ainaiuit  to  a  €?pt=  aicotVingiV. 

ritual  DCfavnattan,  to  U)lt,  that   the    \Vile    wa.s    incontinent.  f)llU  9 Prohi'- 

Car.  13.  E.  bctiuecn  i-"  arjd  aiba,  pre  cunam,  a  proljiinrion '^='''"  i^'^-^ 

I..  »^  >.„...•.->.  '  granred   to  a 

mn  DC:H£B.  .  tibci  for 

calling  another  Cuckold ;  for  they  are  VS'ords  of  PafTion,   and  the  f;  e.ikir'g  of   them  nor  pu'-i(hable  there. 

Sid.  248.  pi.  14.  Pafch.  I-  Car  2    Knight  v.  Jacob, Keb   S90.  pi.  55.  S.  C.  Twildcn  and  KeeU 

ing  y.  held  clearly  that  it  was  grantabie  ;  but  Hyde  ar:d  Windham  doubted,  but  ordel-ed  Caufe  to  be 
fhewn  wliy  it  fhouil  not  be  granted. 

Defend.int  was  (ucd  in  the  -Spiritual  Court  for  fpeakirg  thcfe  Word.s  (v'vl  ■)  He  is  a  Cuddd  and  a 
Wittal,  v.'hich  is  Co;/?  than  a  Cuckold,  and  J.  S.  hath  Inn  iiith  J.'s  U  tie  ;  if  wns  allcg'd  that  for  fuch 
Words  of  Spleen  Prohibitions  have  ufually"  been  grar.tcd  ;  but  upon  Advil'cment  the  Court  all  agreed 
that  no  Prohibition  fhould  be  granted  ;  for  tho'  the  firll  Words  are  too  general,  yet  being  coupled  with 
a  particular  Charge  as  to  a  particular  Perfon,  they  are  now  not  V\'ordi  ot  Spleen  or  ufual  Di'C(;urre,  but 
a  Defamation  fuable  in  the  Spiritual  Court.  And  fo  a  Piohibition  was  denied.  Cro  C.  no.  Pafch.  4 
Car.  C.  B   Eaton  v.  Aylotf. 

So  where  the  Words  were.  Thou  art  a  Cuckold,  and  n  cuckoldly  Kna^e,  and  a  cuckcldly  Ro^ue  ;  a  Pro- 
hibition was  moved  for  ;  and  cited  i  Cro  no  But  it  w.is  denied  per  Curiam  ,  for  there  cannot  be  a 
higher  Defamation;  becaufe  it  does  not  only  defame  the  Husband  but  aI<o  fcaiida!  the  Wife  ;  for  if  the 
Words  be  true  flic  mtift  necclfarily  be  a  Whore  ;  but  if  the  V\'oids  had  bten  fpuken  adjei'tneiy  cnh,  as 
cuckcldly  Knaie,  there    perhaps  it  might  have  been  otherwiie.     Freem.  Kep^44.  pi.  55.  Tnn.    '.C'z. 

C.  B.  Davie  V.  Doric In  iuch  a  Cafe  Prohibition    was  granted  Nill   (!aufa     C.su'c  was  {hewrt 

that  x\\c  Baron  and  Feme  jcinin^^  ia  the  Suit,  no  Prohibition  iliould  go  ;  Otiierwife  it  he  li.id  fued 
alone  ;  for  the  VN'ords  charge  her  w  ith  lncontii;cncy,  and  fo  it  is  rcifonable  that  fhc  fliould  h  tve  this 
Suit  in  the  Spiritual  Court  to  punifli  the  Defamation  which  fubjefts  her  to  Pcnar.ce  in  the  Kv<  lefiartical 
Court ;  but  if  the  Baron  had  !ued  alone,  a  Prohibition  fliould  go,  b-.-.au!e  l;e  incurs  iiofjch  Daiij^er  by 

-  L  t'ac 


594- 


Prohibition. 


the  Speaking  of  the  Words.  And  of  thar  Opinion  was  the  Court,  and  difcharg'd  the  Rule  for  the  Pro- 
hibition,    z  Lev.  66.  Mich.  24  Cur.   2.  B.R.  Toz,cr&ux.  v.  Davis Jbid    (ays  thjt  a  Prohibition 

was  denied  tlie  next  Term  in  a  hke  Cafe,   between  Lucliin  and  Lightbridgc.- i>.  P.    Rul'd  by  Holt 

Ch.  J.   ;  Sj\k.  2S8.  Hill.  15  W.  3.  Anon. 

So  where  the  Words  were,  f/c  is  a  Cuckold,  iiith  an  Jiermevt  that  in  that  Country  it  fti^tiifes  that 
the  li'ije  IS  a  U'lore;  and  a  Prohibition  denied.  Comb.  312.  Hill.  6  W.  3.  U.K.  Mericl  Sc  uxor. 
V.  Kendal. 

So  for  cal-         19.  Jf  fl  93jjn  H'jpjS  (fl  anOtljCr,  Thou  arc  a  Knave,  a  Paultry  Knave, 

K  iT, ..  ■  ^"^  '^  Pockt)  -lac'd  kna\  c,  anD  ii  8)iiit  10  tit  tije  ^pjnttuil  court  foe 
for  Knave  '  tljcfc  WqxU.  h  JL^rofiiDitioii  Iic0.  p»  1 1  Cat*  05.  i\.  bctuieen  Packer 
ab  initio     cuia  Moore ^  a  l^tX-oljUunon  uiajj  cranteti> 

was  no 

Name  of  Reproach,  but  (if;nifieda  Man-fervant.     2  Inft.  493.  fays  it  was  the  Cafe  of  March  v.  Beale. 

So  where  it  was  for  calling  a  Man  Knave,   trnd  a  Kvave  indeed,  bccaufe  the  \\^ords  could  not  make 

him  fubject  to  any  EcclefialHcal  Cenfure.     2  Salk.  54S.  Hill.  8  W   5.  B.  R.  Hawkins  Cafe. 

Note,  It  was  denied  by  all  that  the  Spiritual  Court  hath  any  Jurifdiction  to  maintain  any  Suit  for 
calling  a  Man  K>uiie,  a.s  Pro  Reformatione  Morum.  Sid.  149.  pi.  12.  Trin.  15  Car.  2.  Anon. —  A  Pro- 
hibition was  granted  Nifi  &c    Sid.  393.  pi.  z6.  Mich.  20  Car.  2.  B.  R.  Anon. 

S.  C  Jo.  320.  20.  3if  %  15,  iap0  to  3'.  D.  It  is  reported  that  j.  N.  did,  or  does 
Se' Words  ^^"^P  '"  his  Houle  a  Man  or  Boy  to  Bugger,  tO  Mtt\)  %  D.  aUftlierS, 
are,  That  he  ^^^s  ^'^e  Villain,  would  ha\e  done  as  much  to  me  ;  Jf  S".  i5*  fUCgi  % 

did  keep  a  D»  fot  t!jt0  iDcfiiuiatiou,  auerrinijljimfclf  to  be  a  C^intllei-,  a  j3ro= 
Boy  to  bug-  ijiiution  lic0  i  bccaufe  tiji0  10  not  nop  Spiritual  Dctaniatiou,  aui3 
TniTd""  '^"ecffP  i^  niaoe  fetonp  bp  tlje  Statute,  q^tcl^  s  car.  15,  B. 
(^-v.^^^^  bctuiecn  Hip;gcnandCoppif,gcr,  *  a  l^toljibitiou  bcuiff  iminteQ  before, 
♦  Foi.  297.  a  CoiUultation  iua0  rscnicD,  anU  after  a  Demurrer  toas  joinen  upon 
^-^T'^-^  tlje  Declaration,  anti  aOjuORcn  per  Curiam,  tijat  tijc  proijtbitiou  10 
aXpro '  uiell  aranteo.  Jntratut.  rprs.car.  Kot.  129.  tljougij  tijc  ^uit  m 
hibition  was  tbe  Spiritual  Court  tiia0  for  ll£>or50. 

granted  by 

three  Juftices,  abfente  the  Chief  Juftice. 

p..t  where      21.  jf  $1.  nie0  05.  ut  tljc  ©ptntual  court  for  a  Defamation,  fci= 

wasforthefe^iC^t' fOtfaprnfftljCfenSOrOg,  That  a.  wastalfe  Forfworn  before  the 
Words,        Judges,   in  chat  he  fvvore  that  J.  S.  was  no  Tinner  ;  a  PrOblbitiOH  Mt^, 

(VIZ )  Thou  fot  an  *  action  lie0  at  Common  law  for  t&cfe  J©o«i0  if  it  be  uicU 

.rta>/aw«jjitj,^  o^jj-jj^  g  Cat.  06.  E.  UtmZXi  Robnifon   and  Baylor,  l^rOljibittOH 

thou'l"./  CfantcD  per  Curiam. 

a  fa  If e  Jccotint  luhen  thou  luajl  Churchivarden  ;  the  Defendant  fuggefled  for  a  Prohibition,  that  the  Di- 
cufling  of  Perjury  belonged  to  the  Temporal  Courts  ;  but  a  Conlultation  was  granted,  becaufe  the  Per- 
jury was  fuppol'ed  to  be  committed  about  the  Execution  of  his  Office  of  a  Churchwarden,  which  be- 
longs to  the  Spiritual  Jurifdiction.  But  otherwifc  had  it  been  (uggelled  to  be  done  concerning  k  Feoff- 
ment, or  other  temporal  Act.    Goldsb.  113.  pi.  2.  Mich.  39  8c4o£liz.  Brown  v.  Lother. *  See  pi.  3. 

22.  3if3.  a  Surrogate,  fue0  in  tIjc  S)piritual  Court  apiM  05. 

Ex  Officio  pro  Salute  Animse  &   morum  Reformatione  ex  Promotione 

C.  becaufe  C.  beinnca  proctor  of  tlje  g^piritual  Court,  an3  a  s^aD 

tet  of  art0,  tlje  faiO  05.  fain  to  Ijim,  Thou  arc,  or  He  is  a  i^cabbed 
Knave,  and  a  Pickerel  Bum-bailifFj  Ot  tbU0,  I  Icorn  to  be  abufed  by 
fuch  a  Scabbed  Knave,  orfuch  a  Pickerel  Eum-bailift'as  thou  arc  ^  aUO 

a^cr0,  tljat  be  laiti  tbi0 10  to  ncfame  C.  ano  to  contemn  tijc  Ccclc^ 

ftafticai  3uri0r!iction,  a  li)robibition  llc0  -,  lot  tl)i0  10  not  mv  @)pi- 

titual  eiauBer,  nor  anp  Defamation  of  tlje  Court.  99icfj.  y  Car. 

05.  K»  between  Cory  and  Ward,  pet  Curiam,  anu  a  J^raijibition  being 

before  ijranten  upon  t|)i0,  aim  a  J^Iea  anti  Demurrer  for  a  Confulta= 

tion,  tlje  Court  feem'n  now  of  ©pinion,  tijat  no  Confultation 

cuffbt  to  be  iTtanteti.  X^ut  before  tl3i0  tua0  Octcrmlucti,  Con?  UicD. 

Godb  ni6      23.  3f  a  suit  be  {\\  tlje  gipiritual  Court  tx  officio  pro  Reibrma- 

pi  5i4.Trin.  tione  Morum,  bccaufe  31*  %>*  uias  a  Doctot  of Dinmin',  ann  parfoii 

8  Car  B.  R.  of  ^biplins  lu  tbc  CouutP  of  antJ  3!.  D.  faiO  to  %.  %, 

^-  ^-  'l"!,      \ ou  >vere  twice  overthrown  bv  the  Parifhioners  of  Shipling.     T.  D.  re- 
not  lo  fully  ^  pji^j^ 


Prohibition.  395 


plied,  He  lied,  It  was   but  Once  ;  whereupon  J.  D.  replied,  He  lied^  "•'f^d ;  £c 
and  that  he  was  as  good  a  Man  as  J.  S.  lor  th;it  he   w.ia  but  a  Black-  j^d/omatur. 
finith's  Son,  or  the  Son  ot"  a  Blackfmith,  a  PrOljtblttOtl  llC0  ;  fOr  \)tXt/~,^  rS^'^hc 

10  not  mw  ^piiitual  Planner,  anu  but  a  returning  tbc  Lie  upon  tljc  pi^intif}  ia 
Doctor  uiijo  Ga\)C  it  firft*  ^icijv  scar.  15. B>  betuicen  Hyc  .r.v^ti'^  sphitua 
Dotfor  wdis.   \m  Curiam,  erccpt  Hicbartifon,  a  l3rol)tbition  be-Jr^r' w""". 
fore  (tranteti,  anti  noui  Dcniurrec  for  a  Confultation,  tlje  J^roljibi  .-rt';,  ir^ 
tion  fljAU  ftano.  S0icl>  9  Car.  tfjis  bciniT  nioucD  apin,  per  Cun-  i^-».'^c,  a 
am  it  fecm0  tljat  tije  probibiticn  fljall  ftatiD.  ^^'^'^  ""^ » 

It  was  moved  for  a  Prohibition,  becaufc  they  are  only  Words  of  Heat  and  Scolding  ;  and  cited  ;  Roll. 
296.  No.  19  29:.  No  22.  25.  And  if  he  had  laid  he  had  been  a  Common  LLir,  it  had  been  Caull-  of  Depri- 
vation. And  Per  Ellis,  then  certainly  it  had  been  good  Caufe  to  fue  in  the  Spiritual  Court  ;  Per  Atkins, 
He  is  3  Liar  if  he  tell  hut  one  Lie,  and  why  fliould  v/c  intend  it  in  the  worft  Seiile  of  a  Common  Liar  • 
fo  that  theQucffion  is,  How  it  fhall  be  intended  ?  Vauj^han  laid,  That  Cafe  in  Roll.  29-.  charges  hira 
■with  one  particular  Actonlv,  vii.  of  lying  upon  the  Subject  Matter.  Sed  adjornatur.  Frecm.  iCcp.  So 
81.  pi  100  Pafch   1 6;  5    Gloyne  v.  Gilbert. 

24.  3if  3. 15.  a  Jfcme,  liip^  of  %  %.  a  C^iniffer,  He  is  a  worthy  a  Libei  ■ 

Pteacher,  he  preaches  againft  Pride,  and  brings   a  Trallerud  to  Church  .^''=^  *<"■  ^-'Y' 
with  him,  (innuendo  his^Vife)  my  Husband  will  not  fuHer  me  to  be  abu-  '^"S<>ff  P-»r- 

fed  byfuch  a  Knave;  t(n0  10  3  @)piritual  Defamation,  for  lubici),  i^pTel.h/s no- 
il g)Uit  be  in  tlje  €)piritual  Court,  no  proljibition  fijail  be  grant- ''"'?  t,ft 
ctJ.  \d.  II  Car.  15.  £.  betiucen  Vangban  andDantfcy,  pet  Curiaui  ^;f,'""^ 
l^roijibition  nenica.  H^'^^;^^  j^ 

V.  as  mov'd 
for  a  Prohibition,  becaule  the  Words  are  aftionable  at  Law,  and  it  was  granted  ;  but  afterwards  a  Con- 
fultation was  granted,  becau'c  they  concern  an  Ecclefiaftical  Matter  and  Pcrfon,  and  are  fit  to  be  tried 
there.  9  Lev.  17.  Pafch.  55  Car.  2.  C.  B  Cranden  v  Walden. -Etit  where  the  Words  in  the  Li- 
bel were  laid  to  be.  That  the  faid  Price  (a  Parfon)  behavd  !  imj'elf  praidly  aj:ii  hfokntly,  and  th.it  hewas 
an  impudent  ignor/att  Blockhend  ;  and  that  he  alio  faid  and  decl.u-ed,  'That  the  Jdvice  end  Exhortatims,  and 
ether  Spiritu.ll  Directions  of  him  the  faid  Price  front  the  Pulpit,  are  n:t  ft  to  he  taken,  and  that  he  ivas  not  fit- 
to  give  the  Sacramei-.t  ;  and  that  he  the  faid  C\erk,fpeakin-^  to  a  'Third  Perfon  faid,  /'hi  ivcuhi  not  receive  thf 
Sacrament  jrom  fuch  a  Puppy  ai  the  fiidPnct'ivas,  ivas  y  11  to  L-je  never  Jo  long  in  lis  Parifi.  To  prevents 
Prohibition  it  was  urg'd,  That  thcfe  were  not  Words  of  Heat  but  of  Deliberation,  and  liighK'  touch'd 
him  in  his  Function  ;  and  cited  the  Ca(e  of  CJranDon  anO  (lllaiDrn  "  Lev.  1 7  But  H(.!t  Ch  f.  faid, 
(to  which  the  Court  did  not  dila'^vee)  That  tho"  the!e  Words  did  rcflcit  on  him  in  his  Profeinon,  ver 
Jeeing  they  do  not  charge  him  'With  any  Thing  for  which  he  is  cbnoxit'us  to  the  Spiritual  Court,  therefore'  a 
Prohibition  was  granted,  and  it  was  ordered  to  come  before  the  Court  of  B  R.  bv  Declaration  and  De- 
murrer.    1 1  Mod.  140.  Mich.  6  Ann.  B.  R.  Clerk  v.  Price .\fterwards  in  Hill.  ;  Ann  This  Caulb 

came  on  again,  but  adjornatur Ibid  208,  S.  C.  but  no  Judgment. 


25.  jf  a*_a  nsoman,  rue0  "B,  in  t!)e  S>piritujil  Court,  for  mu--  ''•  c  cro. 

CI-   45«. 
Pafch.  12 


iupfof  ijcr,  d)ou  art  a  Welch  Jade,  aliening  m  tiie  Libcl,  tbat  mprV^ 
faiD  i®0rD0  fwmfp  a0  muci)  a0  if  ije  faio  of  Oct  t!)at  n)c  vc-Mi  a  ttDDore,  r,r  b'r 
ito  iiSroljibtcton  fijail  be  granteD  ;  for  ti)is  is  a  grpiritual  Dcfaina=  Pew  v  jei 
tion.  J3.  iiCnr.  'B.R.  a  Confultation  araiitco,  after  a  ]3ro(jibi- fi-i'^'i — ■ 
tion  before  cranteti,  upon  fljeuiing  ota  libel  for  faDimv,  Thou  art  a  t'^<=  h^^s- 

*Thiei;  and  a  Welch  (ade,  Imt  1100)  t()C  iJUOCtCl"  COm:0  lUtO  COUlt,  f'^nVlS  „f 

anti  ccrufie0  tlje  Court,  tljat  tbe  UBoro  Thief  luas  not  in  tOc  i\e=  his  witi? 
com  in  ti)C  ©ptritual  Court,  anti  upon  tl)i6  a  Conrultation  luas  ^«^^ » ^ 
granteD,  betuscen  fcfafes  twd  Pm,  per  Curiam.  f'Xt"?*' 

Jade,  anda  (iinkin^Jac'e  ;   and  fuggefted  in   the  Libel  that  Jade   fi^-^nified  Whove.    A  Proliibition'was 
denied  per  tot.  Cur'   becaufe  the  Words  ifre  malicious.     2  Show  ^S-;.  4SS.    pi  455.   Mi.h  2  Jac.  ;. 

B.  R.  ■V\'3rwick  V.  Skinner  &  al But  the  Reporter  adds,  Sed  quaere  vim  Rationis  ;  for  an  Averme~t 

feems  neceflarv.     And  fiys  that  Mr.  Powell  (the  Counfcl  that  mov'd  for  the  Prohibition)   inform'd  him 
that  the  nc>:t  Day  they  had  a  Prohibition  granted  in  C.  B. 

♦  VVhere  the  Words  are  complicated,  fo  that  y^clicn  liill  lie  for" Part  in  the  Temporal  Court,  Prohibi- 
tion wii!  go  for  all  ;  as  if  it  had  been  for  laying,  Thou  art  a  Whore  and  a  Thief,  the  Suit  in  the  Spiri- 
tual Court  lliall  not  be  ftay'd  for  the  Word  I'hief  only  but  for  the  whole.  Per  Twifden  J  Sid.  40^-. 
-n  the  Cafe  of  Mellet  v.  Herbett. 

2.6.     9  E.  2.  cap.  4.  Enaftsj  that  in  Dcfamatian  the  Prelates  may  cor-  ^^e:  2  Inft. 
retl  fivt-joithjlaiiding  the  King's  Probihitio)!.  ^  _  _  ^^° 

■  27.  A  Man  may  fue  in  the  Spiritual  Court  for  calling  him  Fal/ifier,  S-C  cited 
Miilt^rer,  or  VTufcr  &ic.  F.  N.  B,  51.  (I)  ^''''  '^■ 

2S.    If 


59^ 


Prohibition. 


28.  If  a  ^\-i.v\  give  Evidence  to  an  hiqmji  to  inditl  onc^  he  cannot  fuc  lor 
this  Defamation  in  Court  Chriltian.  zinft.  493. 

29.  If  a  Man  call  one  a  Perjured  Man,  he  nuift  take  his  Reniedy  at 
the  Common  Law.  2  Inll.  493. 

TheDefcn-  jq.  C.  libelled  againll  A.  lor  c2\V\u'£,\i\\\\BaJlard-makcr.  The  De- 
f','"'^^""'^  fendant  juftified,  becaufe  he  was  proved  to  be  fo  before  two  JulHces  of 
inrlleTJin-  P^ace,  according  to  the  Statute  18  Eli/.,  which  Plea  the  judges  in  the 
tual Court  Eccielialtical  Court  relufed,  whereupon  a  Prohibition  was  awarded, 
forfaving  fe  But  per  Haughton,  if  the  Defendant  had  not  pleaded  the  Conviction, 
u^is  t;.e  Fa-  j,^j  iiy^-^  ,,  ,j^,  juftified,  and  offered  to  prove  it,  and  they  had  refufed 
'bIVLj-  ^'^  ^^^''5  ""  Prohibition  (liould  be  granted  ;  But  his  Remedy  had  been 
thii.    The  by  Appeal.  2  Roll.  Rep.  82.  Pafch.   17  Jac.  B.  R.  Cooke's  Cafe. 

Plaintift'y.nM 

le  /poke  th'tfcrdj  at  the!)ejfioKS,  wliere  the  Defendant  was  adjudged  to  be'  the  Father,  and  to  maintain  the 
Child.  The  Defendant  lav.s  he  fpoke  them  out  of  Sedions.  And  the  Plaintiff  demuK,  and  had  the  Pro- 
hibition, yex  Curiam  ;  for  by  the  Statute  of  _  the  Scffions  are  made  Judges  of  the  Fathers  of 
Eaftard-children  ;  and  therefore  they  fhall  not  try  it  over  again  in  the  Spiritual  Court ;  for  he  is  legally 
convicted;  and  it  is  like  as  if  a  Man  be  convicted  of  Per)ury,  any  Man  may  call  him  Perjur'd,  and 
juftify.     Fi-eem.  Rep.  2S5.  pi.  y.y  Trin.  1673.  in  B.  R.  Thornton  v.  Pickering. 

;  Lev.  iS.  gj.  The  PlaintifFfpoke  ofthe  Defendant  thefe  Words  :  A.  is  a  Lyi-ng 
Pafch.  5  n^  FelloiVj  and  has  lain  with  all  the  Women  between  H.  and  B.  and  lies  wilh 
S  c'  by'  '/^  ^/M/vj' Women  ,  that  he  fcarce  lies  '■.soi.th  his  IFtfe.  The  Plaintiii'was 
■Name  of  fued  for  thefe  Words  in  the  Ecclefiallical  Court.  A  Prohibition  was 
Yates  V.  prayed,  becaufe  thefe  Words  import  a  Thing  impoffible,  and  are  too 
Lodge,  but  general.  But  denied  per  Curiam,  becaufe  they  import  him  to  be  an  A- 
as  fpokeVo"  dultereti  and  this  is  a  Matter  properly  in  the  Conulance  ofthe  Eccleliafti- 
a  P/j(/m;,  and  cal  Court.  Freem.  Rep.  300.  pi.  362.  Trin.  1681.  C.  B.  Lodge  v.  Yates. 

fays  the 

Prohibition  was  denied,  for  the  Words  are  very  fcandalous,  being  fpoken  of  a  Parfon,  tho'  not  action- 
able at  Common  Law. 

32.  I  will  not  venture  myfelf  with  her,  (being  fpoke  of  a.  Adidwife  li- 
cenfed)  Ihe  is  a  Whore,  and  will  kill  me,  and  bury  me  in  the  Garden,  as  fit 
did  her  Bajlard^  for  which  Words  a  Suit  was  in  the  EccleJiaftical  Court, 
and  Prohibition  prayed,  and  upon  Caufe  Ihewn  denied  j  the  Court  taking 
them  not  to  be  actionable  at  Common  Law.  Skin.  86.  Hill.  3  9  Car.  2. 
B.  R.  Anon. 

33.  A  Libel  was  for  thefe  Words,  viz.  She  is  a  Bitch,  a  Whore,  and 
nn  Old  Bawd.  A  Prohibition  was  prayed,  becaufe  fome  of  the  Words 
are  aftionable  at  Law,  and  fome  punifhable  in  the  Spiritual  Court,  and 
fo  prayed  a  Prohibition  Quoad  thofe  Words  that  are  Aftionable  ac 
Law  ;  and  it  was  granted,  becaufe  the  Words  were  an  Intire  Sentence, 
and  fpoken  altogether  i  and  if  a  Prohibition  Ihould  not  be  granted,  the 
Plaintiff  might  be  doubly  vexed.  3  Mod.  74.  Mich,  i  Jac.  2.  B.  R. 
Anon. 

34.  A  Libel  was  for  faying.  Ton  are  a  Rogue  and  a  Rafcal,  and  have 
hired  Fellows  to  [wear  falfe.  It  was  fuggefted  for  a  Prohibition,  That 
though  the  Words  liiould  not  be  deemed  Words  of  Heat  &c.  but  advi- 
fed  and  malicious,  then  they  import  an  Offence  againlt  a  Statute  Law, 
and.  That  where  no  Suit  lies  lor  the  Principal  in  that  Court,  no  Libel 
can  be  there  for  Defamation  in  the  charging  fuch  Oftence.  And  a  Pro- 
hibition was  granted.  2  Show.  454.  pi.  417.  Mich,  i  Jac.  2.  B.  R.  Ven- 
ners  v.  Allen. 

35.  Prohibition  was  granted  to  the  Spiritual  Court  upon  a  Libel, 
iox  czV(\T\^\\\\Vi.  Rogue  and  Rafcal,  and  faying,  that  he  kept  a  Whore  in 
his  Hoiife,  and  thereupon  the  Plaintiff  there  had  Sentence.  The  De- 
fendant appealed  to  the  Archives,  where  the  Sentence  was  ainrmed  and 
remanded,  and  then  appealed  to  the  Delegates,  and  was  thence  remand- 
ed for  Nun-Prolbcution  there.  Upon  a  Motion  to  difchargc  the  Prohi- 
bition it  was  inlilted.  That  the  Words  were  only  oi  Heat  and  Scold- 
ing, and  tofiv  that  the  Plaintiffkcpt  a  A\'hore  in    his  Houfe,  f!ia!l  not 


Prohibition.  Jpy 


be  undeiLtojti  thut  he  knew  her  not  to  be  lo,  but  that  he  kept  her  as  ;i 
M'liore,  flpecially  being  alter  Sentence,  and  of  that  Opinion  was  the. 
Court,    and  granted  a   Conllil'tation.  3  Lev.  350.  Palch.  j  \V.  &c  M.    C. 
B.  Elliot  V.  Chamberlain. 

36.  A  Libel  was  tor  thefe  Words,  You  area  Ro^ric,  Ra/'ca/,  /r/6o;'f- S- C.  Comb. 
Mafcr^cmd  Son  of  a  Pcrjirrcd  Jffi.iavn  Hitcb.     A  Prohibition   being.,;^^- .y°J^'^'=" 
mo\ed  for,  all  the  Words  were  waived  but  that  of  Whore-Malter  ;  and  a  Pi-ohibi- 
it  was  urged,  That  this  was  only  a  \V\)rd  of  Heat.     Eut  per  Holt  Ch.  tinn  had 
J.    To  iiiy  lb  of  a  Man  is  the  liune  as  calling  a  Woman  Whore,  which 'i^'^P  ^''«" 
is  an  Eccleliallical  Slander  ;  'I'hat  to  call  a\\Ian  Cv.ckohl  was  not  an  Ec-  "^i'k.'JII  q""^, 
clefialHcal  Slander,  but  Wittal  v/as,    tor  that  imports  his  Knowledge  Vvhou:,  and 
and  Conient  to  the  Adultery  of  his  Wife  ;  but  to  call  a  Man  Ivipudent  there  was 
Brazen-fac'd  Belzcbub  were  Words  of  Paliion,    and   import   no  Crime  the  like 
norDHcrcdit  any  more  than  Devil,  or  Prince  of  Darknefs.  2  Salk.  692.  -l5j''°"_^°'^ 
Mich.  5W'.&;M.   B.  R.  Smith  v.  N\'ood.  maft°r";"and 

cited  I  Cio. 

ITO.  Sid.  24.S.  And  I  Cro.  ^52.  But  Eyre  J.   faid  that  tli;it  Cafe  had  been  (ince  exploded. S.C.  Skin. 

590.  And  that  the  Prohibition  was  denied  per  tot.  L'ur.  and  they  laid  they  would  not  encourage  dctauia- 
tory  \N'ords. 


37.  Libel  was  for  thefe  Words  fpoken  of  a  Pnrfon,  he  has  no  Senfe^  S.C.  12 

aceordintrlv. 


he  IS  a  Dunce  and  a  Blockhead,  and   he  --xondered  the  Bijbop  "-jcotdd  lay  his'^^-^'  ^"'' 


Fol.  ^98, 


Hands  on  ftich  a  Fellow,  and  that  he  dejervcd  to  have  his  Gown  pulled  over 
his  Ears.  A  Prohibition  was  granted  ;  tor  a  Parfon  is  not  punifhable  in 
the  Spiritual  C  ourt  for  being  a  Blockhead  more  than  another  Man ;  and 
ic  ueing  urg'd,  that  he  might  be  deprived  for  want  ot  Learning,  Holt 
Ch.  J.  laid,  it'  that  be  his  Cafe,  he  mult  bring  his  Action  at  Law,  becaufe 
Deprivation  is  a  Temporal  Damage.  And  a  Prohibition  was  granted. 
2  Salk.  692.  pi.  3.  Hill.  10  \\.  3.    B.  R.  Coxeter  v.  Parfons. 

38  A  Motion  was  made  lor  a  Prohibition  to  the  Spiritual  CourCj 
upon  a  Libel  there  for  thefe  W^ords,  He  isn great  Rogue,  Jis  great  a  Rogue 
as  ever  was  hanged,  and  dcfervcs  to  be  hanged  /nure  than  Dr.  Pinis;  a  Pro- 
hibition was  granted,  becaufe  no  Spiritual  Dctamation.  1 1  JMod.  11 3, 
Patch.  6  Ann.  B.  R.  Hoskins  v.  Lee, 


(O)     Where  the  SpintHnl  mid  Cofninon  Lcno   differ.     If' 
the  Suit  he  according  to  the  Spiritual  Law,    a  Prohi- 
bition ihall  be  granted.    /;/  the  iVhtkr. 

Jf  a  ^aU  buys  Wood,  and  expends  it   in  his  Houfe,    tIjOUn;!)  tljC  Pec  Dlfmcs" 

_  ^z\mt  \m\>  bcfueo  for  d'tije^  of  it  lu)  tljc  'Spiritual  laiu  nt  (z; 
tlje  Election  of  tifc  J^atfou,  I'ctfinccljcoutjijtmu  bp  tDeCommaii 
Xm,  bccaurc  lie  ccpenue  it  iii  liis  I;)aurc,  a  puoijibitioii  iijall  lie 
grantct!,n0ttias  grantcn  \d.  h  la.  03*  bctiurcn  idAx^mKHi  sand  Drake. 

2.  So  If  a  LelTee  ot'Pailure  rcilUcrimX  Edit  bt  {llCH  lor  Tithes  of  the  Sec  Difmcs 
Rent  anU  not  in  Kind,  a  Prol)lllItiaif  llCC,  bCCaUiC  It  15  aiiaUlft  t!3eCS)CT)pl. 

Common  Law ;  if  or  Ijc  oiigljt  to  fuc  for  tlTPtljcs  m  Ultra,  ajs  uia^  au^  '•  ^ 

)lltllXell,   14  la.  EJlts  and  Drake  bCfOrC, 

3^ Jf  3.  CiljCjS  a  Legacy  to  11  ailO  Iliai^CC  €♦  1)15"  Executor,  autl  DlCS, 

tm  after  C.  dies  inteitate,  aiin  D.  tahc.G  Lcttcrfj  of  !at!minifl-rattO!i  ti,k'cal%d- 

Oftt)C  ©0050  of  €.  ant!  after  B.  lues  D.   as  Adminiltrator  vi  C.  f0rtljl£i  miniii"r.ator.s 
LCgaCp,  fuppofing  C.  \ut)Cn  ijC  was  Creditor,  to  have  waited  the  Ooods  of  rightful 

Of  3.  a"  i5ro!3itiitton  Iicg  ;  becaufe  bi)  tbe  common  Lain  tW  vjas  a  Excauors 
Perfonai  Tort  fot  uiijtcij  tl)c  iinmintftrator  caniiot  be  cbaracn.  li).  1 1.  bJ.„  "^'[dc 
Car*  15.  E.  bctiocen  ^^uaij  and  Fotheny  bp  2  juftice.c  asiatnft  one.      chargeable 

by  StaUUc>, 
for  which  fee'Devalbvic. 

7  M  4.  Whers 


598 


Prohibition. 


4.  Where  a  Man  grants  the  ^ctith  Part  over  and  ahc'M  the  Tithes^  which 
he  ought  to  pay  to  the  Church,  there,  of  this  the  Lay  Court  (hall  have  Ju- 
rifdi6tion.     Br.  Difmes  &c.  pi.  i.  cites  44 E.  3.  5. 

5.  The  Defe;i  da  at  tn  a  ^)iiiirc  hnpedtt  (pending  the  Suit  in  B.  /?.)  libelled 
agatnji  S.  one  of  the  Pariiiiioners  of  the  Church  in  Quellion  Jor  I'ltheSy 
and  De  Jure  Refloria?,  alleging^  7'hat  he  is  Vertis  S  Indubitatus  Rettor  &i.c. 
S.  pleaded  there,  That  G.  ■aw.v  not  Par/on,  hut  that  M.  "-joas  ;  which  Plea 
they  retuled,  and  gave  Sentence  againlt  S.  and  S.  pray'd  a  Prohibition, 
lor  that  it  appears  to  the  Court  of  B.  R.  by  a  Vcrditi  given  here.  That  AI. 
and  not  G.  is  the  true  Parfon.  Coke  Ch.  J.  thought  a  Prohibition  ihould 
be  granted  ;  for  Ihould  G.  have  the  Tithes,  M.  might  alfo  charge  S.  and 
fo  S.  would  be  twice  charg'd  i  and  it  appears  to  the  Court,  That  M.  is 
the  true  Parlbn,  and  yet  they  of  the  Spiritual  Court  will  certainly  fen- 
tence  G.  to  be  the  true  Paribn,  becaufe  they  look  upon  M's  Inltitutinn  to 
be  \oid  by  reafon  oi  a  Caveat  enter'd,  in  which  Refpe£t  our  Law  and 
theirs  difler  Ex  Oppolnoj  for  the  Libel  is.  That  G.  is  Varus  &  Indubi- 
tatus  Re£tor,  and  that  the  Suit  is  De  Jure  &  Titulo  Rectoris,  whereas 
Parfon  or  Kot  Parfon  is  triable  by  the  Common  Law;  quod  fuic  conceiliini 
Per  Doderidge,  whofiid,  That  Parfon  or  Kot  Parfon  comprehends  In- 
duftion  i  which  Coke  granted,  and  a  Prohibition  was  granted,  i  RoJl. 
Rep.  228.  pi.  36.  Trin.   i3j;ic.  B.  R.  Glover  v.  Shedd. 

6.  It  was  agreed  per  Cur.  That  Real  Conipcfitions  for  TLndcwment  of  Vi- 
carages fliali  be  expounded  by  the  Judges  ot  the  Common  Law,  and  there- 
fore if  the  Spiritual  Court  meddles  with  it  a  Prohibition  lies.  Lite.  Rep. 
263.  Pafch.  5  Car.  C.B.  Cafe  of  Vicarages. 

GiU  V.  Wil-  7.  A.  made  2  Executors  B.  and  C.  and  died ;  B.  made  J.  N  his  Executor 
liam.  Keb.  .^p^}  ^^^^  .  Q  ^i^^  ititejiate,  A  Legatee  of  A.  fad  f.  N.  in  the  Spiritual 
Ad'oniatur  Court  for  his  Legacy,  who  pleaded  this  Matter,  but  they  there  refuled  the 
But  Ibid.  "  Plea  ;  whereupon  he  pray'd  a  Prohibition,  but  it  was  deny'd,  becauie  the 
S77.  87S.pl.  Matter  is  Teltamentary ;  and  perhaps  J.  N.  has  all  the  Goods  in  his 
29.  Prohibi-  Hands,  and  is  Executor  De  fon  tort,  and  that  there  is  no  body  elie  in 

*'k:d-^And^'  '"^'^  ^^^^  ''^  ^^  ^"'^  '"^  ''^'^o^'^^  ^^^  Legacy  from  ;  And  tho'  the  Survivor 
per  Hyde,  In  by  our  Law  Ihall  have  all,  it  is  not  lo  perhaps  in  their  Law,  to  which 
~uit  for  a  this  Matter  belongs  ;  And  if  they  proceed  ill  he  ought  to  appeal,  but  this 
Legacy  Court  will  not  prohibit  them;  and  a  Prohibition  was  denied.  Lev.  164. 
againftAd-    p^^,j^    17  Cat.  2.  B.  R.  Guillan  V.  Gill. 

ininiltrator  ' 

of  Executor 

on  Devife  by  the  firft  Teftator,  if  by  their  Law  Adminiftrator  to  Executor  be  fo  to  the  fii-ft  Teflator, 

they  have  at  worft  proceeded  Inverfo  Ordine,  in  which  Cafe  it  is  proper  to  appeal. 

8.  When  a  Queflion  ariles  concerning  the  Jurilciiftion  of  the  Spiritual 
Court,  as  whether  they  ou^ht  to  have  the  Probate  of  fuch  a  Will?  whe- 
ther fuch  a  Difpolltion  of  a  Perfonal  Eftate  be  a  Will  or  not?  whether  fuch 
a  Will  ought  to  he  proved  hejore  a  Peculiar  or  before  the  Ordinary?  whether 
hy  the  Archbijhop  of  one  Province  or  another^  or  both  ?  and  what  Ihall  be 
bona  Notabilui  ?  \\\  thefe  or  the  like  Cafes  the  Common  Law  retains  the 
Jurifdiftion  of  Determining.  Per  North  Ch.  J.  i  Mod.  211.  pi.  44. 
Pafch.  28  Car.  2.  in  C.B.  Anon. 


(P)   Where  the  Temporal  and  Spiritual  Law  differ   //;  the 

Manner  of  the  Suit. 

Roll  Rep    ^-  T-^  'Baron  anti  iFeme  are  divorced  Caufa  Aduiterii,  anu  after  tlje 

426.  pi.  19.        JL  F'^'i'e  fues  alone  iOttljOlIt  tlje  'BatOlt  for  a  Defamation  ;    tijO'  tljC 

Mich.  14  Di\iarce  noes  not  utflollie  tlje  Carriage,  pct  becaufe  tiie  JTemc  map 
jac.  s^c.  ^ip  fjjj.  (Tourfc  of  tlje  Spiritual  laui  fuc  alone  in  fuel)  Cafe,  i3o  pro'- 
m-By  t^h^  Iiilntion  fljal!  b:  Brantea,  tbo'  it  be  contrary  to  tljc  iiHig:  of  our  laia^ 

Rules  of  :he  ^9}?  RCpOttS.     MotaiH  and  Motam  nUjUt!SC"0, 


Sriritual 


Prohibition.  ^<)^ 


Spiritual  Court  a  Feme  Coven  may  fue  alone  in  evciy  one  of  the  t'oUovvmg  Caffs,  vi.'..  When  flie  is 
Executor  or  JJ.wwiJlralor,  or  Legatee  or  Legatory,  or  Defaming  or  Dejamed.  Per  Dr.  Pinfold,  lo  Mod, 
64.  Midi.  10  Ann.  B.  R.  in  Cale  of  D"aeth  v.  Baux. 

2.  If  a  93anlibd0  in  CccMaftlcnl  Court  tor  faying  o\:  certain  s  [»  And 

Words  (namino-  them)  Aut  in  Efieau  Conlimilia  ;  djO'  fllCl]  DCCkinT-  J     if  "he 

tion  be  not  gooD  at  tijc  Common  Lauu  j'ct  Uid)  iLibcl  is  gooQ  bp  iv  durr,  ev- 
fagctljerc,  anu  tljcreforc  no  pvoljibition  fljall  be  luantcD*  plU  u  ceptAtkms 
3a,  'B^E*  *  patmcr'0  Cafe.  >vh.  incim-^ 

hat  u  was 
n.iught ;  but  the  others  held  it  good,  becaufe  it  is  their  ufiial  Form.     Freem.  Rep.  295.    pi.  54%  Trin. 
16-8.  C  B.  Anon *  S.  C.  cited  Arg.  Show.  1  59.  in  Cale  of  Shatter  v.  Friend. 

^.  Jf  a  Feme  Covert  be  fued  in  tlje  S^piritUal  Court  for  Scolding  in 
the  Church-yard,  aUO  COntiemUCn,  autl  COltS!  tareU,  the  Baron  not 
being  Party  to  any  thing  thercoi;  pet  betaUfC  It  ilS  tlje  CUflOiU  Of  tl)e 

epintuat  Court,  no  J23rolnbition  fijall  be  BranteQ.  DilU  14.  "B*  K* 
Ecnmi  s  Cafc.    l^roljibitiun  Deuicti, 
4.  jif  a  'i0m  be  fued  in  tIjc  lM\)  Commifiion  Court  Ad  initan-  s.  c.  cited 

tiam  Partis  lor  Inceft,  aUli  tijCtC  It  appear.s  that  there  was  a  Fa6l  com-  ^rg- Sli"\^ . 

mitted,  auti  a  Jf aitie  aitts  one  UJitncfsi  tljat  tije  Defendant  loas  guiitp ore  Titer'^ 

tfjCreOf,  pet  becaule  there  were  not 2  \\  icnclies  he  was  put  co  his  pLiri^a-  Friend. 

tion,  iiccaufe  tijere  a  C^an  cannot  be  connennictj  bp  one  n^itnef0,  a^nn 
l)e  putgeti  Ijimfelf  accoroingip,  ano  pet  tijere  tljep  gave  Coits  to  the 

Party  who  profecuted  this  Suit,  aCCOrmniJ  tO  tijCIt  "O^m  X\)ZK  III  fUCi) 

Cafejs  no  l2)ro!)ibitlon  fliaii  be  rjranten ;  lor  tlja'  ijc  cfcapcs  tije  Cen^ 
fure  of  tlje  Court  bp  tlje  €)trin;ner0  of  tJjcir  lain  for  HBaut  of  a  }JBIt= 

nef0,  PCt  for  tIjC  Prefumption   that   i;e  is  Guilty,    tijeP  UiaP  tOCi'   iXibC 

Coft9 accortunctotfjcir  lato.  p,  u.  la^'B^H.  Coortnoii's  cafe  rc= 
foibcn. 
[5]  8.  upon  a  g^uit  *  in  tIjc  ecclcfiadical  Court  Ad  inftantiam 

Partis,  if  tlje  JJefendant  pleads  the  King's  Pardon,  ailG  aftCr  Colts  are 

taxed  for  the  Plaintiff,  becaufe  tlje  paroonis  in  ^i^anncr  a  Confcffion 
of  tbe  if  act,  tijo'  tljl^  be  tiicir  cuff  am  tbcrc,  pec  a  |arol)ibition 
iljallbc  grtintcti,  for  in  a0  muclj  as  tlje  fatter  ann  S'Uit  id  pamoneti, 
tlje Cofts  aifo  are  gone.  fp.  1 1.  3a.  '26.  K.  ivcnfo-n^  rcfoineti. 

[6]  9-  3!f  a  Baron  and  Feme  are  fued  in  tlje  CCClCfiaftlCal  COUttfor  S  C.   z 
Polygamy,  3115  tijetC  it  appears  that  the  Feme  was  married  before  tO  ^^',°^'"^' 'f' 
3.  ^.  within  theAo;e  of  Confent,  and   after   difi^rced  at  tlje  %\^Z  Of  p,^o',ibition* 

Confent,  anti  mafrien  tlje  Defendant,  anti  fo  tlje  Court  acqiutten  v.as grant. 
tOt'DefcnOants,  pet  if  tijep  tax  Coib  to  the  piaintiii;  no  ji)iOijUiition  ^^ ;  tor  that 
fl)aU  be  granten,  lu  ajs  muclj ao'  tljew  Ijatie  Junsofftion  of  tlje  Caufe,  ",r;'' ■'"" 
anti  it  i£}  tljcir  Hfage  to  tar  Coftg,  mijere  tljc  iJilaintiff  had  cauiam  ^aUow  coHs 

Litigandi ;  ^|Clj.  8.  la.  06.  Blackduns  Cafe.  prOljlbltlOU  nClUCO*  to  one  that 

had  vex'd 

him  V  ithout  Caufe,  and  when  they  h:;d  given  Ser.tcncc  agiind  the  Ir.formcr. 

[^]   ID.  Jf  a  Parfon  fucs upon  the  Statute  of  2  F.  6.   lU  tfjC  g^-pidtUal  ^ '^'tar. 
Court  tor  the  Double  Value  tor   not  fetting   forth   of  Tithes,  aUD  tlje  ^""'P  ^"'^• 

2:)efenliaut  furmifc^  tljat  Ije  fct  tijem  fortlj,  ann  Vm  tfjep  would  not  ^;p  \]^^^ 

admit  the  Proof  of  it  there  bv  one  W'itnefs.  Bo  PrCfjiDltlOn  \\Z%  bC' S  C.  ' 

came  tljep  Ija^ie  Conufance  of  tljc  Scatter,  mi  9  Car,  ^^.  l{.  bc^ 
tioeen  2bJe  ano  ^ir  coiuatn  Pc-j.  per  Curiam,  proljibinon  oc- 
men.  ..,^  ., 

[SJ  II.  JftljC  Parifliioners  fue  the  Churchwardens  Of  tljC  Patltlj  to  ,V^'^,,to^be 

make  an  Account  in  tljC  CCClCfiafflCal  COUrt,  ailTl  iU  tljIS  ^Uit  Colls  sc. 

Of  SlUt  are  taxed  tor  the  Pariihioners against  tijCCbUrCiJlDarOenEi,  aUt!  '1  he  a«.,/.- 
after  tl'C  Churchwardens  pay  the  Colts   to  one  of  the  P.irilliimiers,  ailtl  •;;"':'jf"^  ""^  ^ 

tbcreupon  Ijc,  luljo  receii^ess  it,  gives  a  Rcieafc  to  tljc  Cljurcljuiarnens  of  ;,;',:''^;d  'V 

tlje  COttS,  ant!  this  Rclcafe  is  afterwards  pleaded  b^  tljC  CljUrCljiliar^heir  Vear 

tens  an;atnft  tlje  ctljer  ^5arUI)ianer0  in  tijC  Ccclcfiafrical  Court,  and  is  r,/.,/  tie  p.,- 
difaiiowcd  tijere,  pet  no  |i)rol)ibition  lliail  be  granicD,  brcauic  tlicp  'ii-''''''-^.'"- 
Ija'oinn;  Conufance  of  tbc  Original  (to  uiit)  of  tlje  Colls  tl}cp  fljall  Ii.-l3c  ,:,l7aC;;',o 
Ceiufliincc  alfo,  U'ljatnjallbcafufficicntpaimirnt  of  tijciii.  0:^ici).iKar their 

15  Car, 


6oo  Prohibition. 


Account.     15  Qr,u";  T3.  iv.  lirtmccit  Homes  auu  GWz../;;.  ji)ci*  Cutram,  u  Prof)^ 

^udireirThe  ^^^^^^^  DClllCtl. 

F'arilhioaers  appe.ifcd,  and  objcftcd  to  Part  of  tlic  Account,  whicli  after  fo-ne  Vjri:!tioii  tlic  Judge  al- 
lowed and  ordered  tlic  Panjh  to  p.iy  Of  1  Cofir of  S\M.  'J'he  Parifli  appcal'd  from  this  Sentence  to  the 
C'ourt'of  Arches,  and  pendii-g  the  Appeal  mov'd  for  a  Prohibition  ;  And  it  was  arfjued,  That  tho'  the 
Ordinary  at  the  Inllancc  ot  the  P.irifhioncrs  rmiy  cite  Churchwardens  to  bring  in  their  Accounts,  as 
bcinc  ' Officers  amenable  to  him,  yet  he  c,i/.}ioi  t.ih  the  Ju cunts  bciween  them,  as  lie  has  done  here, 
-It  the  Peril  of  Colls  to  tlie  Parifliioners  ;  but  the  Parifh  mull  fettle  it  among  tliemfelves,  or  at  a  Vellry  ; 
and  that  it  had  been  fo  determined  feveral  Times.  And  of  this  Opinion  wis  the  Court.  And  held  that 
w  lierC  it  appears  upon  the  Face  of  the  Proceedings  that  the  Court  had  no  JuriCdiction,  a  Prohibition  may 
bf  "ranted  after  Sentence.  And  accordingly  a  Prohibition  was  granted.  Trin.  13  Sz  14  Geo.  2.  B.  R. 
Adams  V.  Rudge. 

9.  Trcfpdfs  of  2  Lo^ds  of  Uiidcnvcod  taken  in  D.  the  Defendant  faidy 
Thdt  the  I-'laintiff'is  Parfon  of  D.  and  he  is  Vicar  there,  and  the  Underwoods 
were  J'lthes  fevered  from  the  9  Parts,  and  that  the  Vicars  have  had  it  Time 
out  of  Mind,  and  that  the  Plaintiff  came  and  danned  them  as  Parcel  of  his 
Tithes,  and  the  Defendant  took  them  as  his  Tithes^  which  is  che  flime  Tref- 
pafs,  judgment  &c.  And  becaufe  it  w'-ds  after  Imparlance  the  Defendant 
couldnot  plead  to  the  jurildiftion  as  he  might  at  firlt,  becaufe  it  is  be- 
tween Parfon  and  Vicar,  and  yet  becaufe  it  appeared  to  the  Court  that  it 
is  between  Parfon  and  Vicar,  and  the  Lay  Court  tifes  one  Manner  of  Pre- 
fcription  and  Spiritual  Court  another,  therefore  the  Court  F.s  Officio  onjled 
them  of  Jurifdiction  by  Award  ;  quod  nota.  Br.  Jurifdi6tion,  pi.  79.  cites 
22  E.  4.  23. 

10.  One  libelled  in  the  Spiritual  Court  for  Tithes,  and  died,  and  his 
Er.cctitorsre-z'ivcd  the  Suit.  Doderidge  J.  faid,  That  the  Suit  being  law- 
fully commenced  fhall  continue  ;  For  by  the  Civil  Law  the  Death  ot  the 
PlaintilFor  Defendant  is  not  any  Abatement  of  the  Libel  ;  But  they  have 
a  Reviver,  as  the  Common  La'-jj  has  a  Rcfimmons  in  Ravijhmcnt  of  IVard, 
and  where  a  Court  is  once  lawfully  pollefled  of  a  Caufe,  and  has  Jurif- 
di£lion,  it  would  be  hard  to  grant  a  Prohibition,  and  Prohibition  was  de- 
nied, per  tot.  Cur.  Cro.  J.  483.  pi.  20.  Pafch.  16  Jac.  B.  R.  The  Bilhop  of 
Carl  ill e's  Cafe. 

11.  A  Prohibition  was  prayed  to  Hay  a  Suit  againft  J.  S.  Leflee  of  a 
Reftory,  out  of  which  a  Penlion  was  demanded.  It  was  fuggefted,  That 
the  Lord  Biron  had  3  Parts  in  4  of  this  Reftory,  upon  which  the  Penlion 
was  chargeable,  and  that  the  ■Suit  againjl  one  alone  ought  not  to  be,  as  in 
an  Alfife  for  Rent-charge  all  theTertenants  are  to  be  named,  and  here 
the  Party  has  an  Election  .to  fue  a  Writ  of  Annuity,  and  if  lb,  hemuft 
have  named  all  that  had  been  chargeable.  Per  Cur.  'Tis  true,  in  our 
Law  it  were  a  good  Plea  in  Abatement,  but  perhaps  their  Law  and 
Courfe  is  otherwife,  and  here  they  have  Jurifdittion,  and  may  proceed 
according  to  their  own  Rules,  or  if  not,  you  may  have  an  Appeal  i 
whereupon  a  Prohibition  was  denied.  Vent.  335.  Palch.  31  Car.  2.  B.  R. 
Anon. 

12.  M.  being  profecuted  in  the  Spiritual  Court  by  a  Pro£lor  for  his 
Fees  in  a  Suit  brought  by  the  faid  M.  againll  her  then  Husband  Young 
to  be  divorc'd,  prays  a  Prohibition  ;  fuggelting.  That  llie  was  Feme 
Covert,  and  as  fuch  not  liable  to  be  fued  lingly  to  pay  the  Fees.  Per 
Parker  Ch.  J.  If  the  Spiritual  Court  has  the  Jurifdiction,  perhaps  it  is 
not  neceffary  by  the  Forms  of  their  Law,  for  the  Husband  to  be  named 
in  the  Suit,  as  in  the  Cafe  of  an  Executrix.  And  the  Reafon  of  the  Dit- 
ference  between  the  Common  Law  and  the  Civil  Law  is  this.  That  in 
the  Spiritual  Court  the  Husband,  tho'  not  named,  may  come  in  Pro  In- 
tercfle  fuo,  and  make  Defence  himfelf,  lliould  the  Wife  defert  the  Caufe. 
10  Mod.  261  &  264.  Mich.    I  Geo.  i.  B.  R.  Clerk  v.  Lee. 

13.  Where  a  Prohibition  is  granted  Pro  i)i,'/f^// 7;7irr/fw/\5  it  is  upon 
Siippofition  of  different  Rules  ellablillied  by  the  Spiritual  and  Common  Law, 
as  in  Cafe  of  Prefcription.  Per  Cur.  10  Mod.  272.  Mich,  i  Geo.  i.  B.  R. 
in  the  Cafe  ot'Cottingham  and  Lolls. 


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