The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Quare Impedit

• Ne admittas.
• Quare non admisit.
• Quare incumbravil.

IMpedire est pedem ponere in jus alienum, qui•• quis habet in jure praesentandi, Bracton. lib. 4. cap. 6. sol. 247. A.

Haee dictio [Impedit] componitur do [in] 〈◊〉〈◊〉 [pes] & unde revera ille impedit, qui nititur 〈◊〉〈◊〉 pedem ponere in jus alienum, ubi nullum jas 〈◊〉〈◊〉 competit, nec proprietatis, nec possessionis, Bract••••, lib. ibidem.

An Advowson is an interest to present an able man to a Benefice, 5 Hen. 7.38. B. Brian and Townsend.

Advocation est incorporalis, & est jus praesent and ad Ecclesiam vacantem, Bracton lib. 2. fol. 53. A.

Jus Patronatus est

• Honorificum, to be Patron 〈◊〉〈◊〉 Protector.
• Ʋtile, to advance his Friend.
• Onerosum, a burthen to his conscience, if he present one not able. Quart, for he is not Judge of the Ability, but the Ordi∣nary.

In what Court it lies.

Bracton Lib. 3. fol. 160. A. Immediate in ••uria Domini Regis terminari debent placita de advoca∣tionibus Ecclesiarum, quia si alius à Rege mandaret Episcopis de admittendo Clericum, & ipse non ob∣umperabit, alius à Rege co••rcionem non haberet, quia Episcopus ad alterius mandatum quàm Regis Clerieum admittere non tenetur; & per consequens 〈◊〉〈◊〉 temporis Rex habebatur caput Ecclesiae, & Stat. de H. 8. factum fuit solummedo in affirmatione legit.

Quare Impedit of an Advowson in Wales ought to be in Com. Ban. in England, and shall be tried 〈◊〉〈◊〉 the County next adjoyning to Wales; and the reason is, because the Lords there have not power to send to the Bishop, 36 Hen. 6.33. B. Forteseue, 35 Hen. 6.30. pl. 35. 3 Edw. 3.163. pl. 35. 8 Edw: 3.319. pl. 15. 24 Edw. 3.3. pl. 26. for the King is Supream Head of the Church in all his Domini∣ons.

No plea to the Jurisdiction to say, that it is Ancient demean, because they cannot in their Court award a Writ to the Bishop, 7 Hen. 6.35. for the former reason no Liberty or Franchise can be endowed with this high prerogative.

In Ban. Regis it lies for the King, for he may sue there, if he pleases, Nat. br. 32. G. 47 Edw. 3.4. pl. 9. or in the Exchequer, as it seemeth. It seems also that it lies in Banco Regis for a com∣mon person.

The King grants Majori Ballivis & juratis Quinque Portuum, that they shall not be implead∣ed;

for no Land in no Court, nor for other cause, unless it be within the Five Ports, scil. at Shep∣way, before the Warden of the Five Ports: this extends not to a Quare Impedit, 21 Hen. 7.88. pl. 7. Crooke, for that is intended for Temporal matters only.

Who shall have a Quare Impedit.

He that is out of the possession of the Advow∣son shall not have a Quare Impedit; which a man may be five ways, 1. by Presentation, 2. by dis∣continuance of the Land, to which the Advowson was appendant, &c. 3. by Disseisin, 4. by De∣scent, 5. by Recovery in the Writ of Right of Advowsons or Quare Impedit. He that is out of possession of an Advowson cannot Present, and therefore cannot be hindred, and so the Writ can∣not lie; for a Writ must suggest the truth, else it is naught.

Husband and Wife having an Advowson in jure uxoris, they shall joyn in a Quare Impedit, Coke 5. part. 57. Specots case, 50 Edw. 3.13. pl. 4. 7 Hen. 7.2. B. 38 Hen. 6.3. pl. 9. 28 Hen. 6.8. pl. 3. for the Wife is interested in the jus Patronatus notwithstanding her marriage.

But the Husband may bring this without the Wife, 14 Hen. 4.12. pl. 12. 22 Rich. 2. br. 937. for the particular wrong done to the Husband in hindering him to present hac vice.

The Church is void, the Wife dies, the Hus∣band shall have the Quare Impedit, because the Presentation was a Chattel vested in the Husband, 21 Hen. 6.56. because the Church became void du∣ring his wites life.

The Husband presents, and after they are di∣vorced, the Husband shall have the Writ, 31 Hen. 8. br. Divorce 8. if he be hindred in this pre∣sentation, for the Divorce shall not look back.

Cestui que use shall not have it, but the Feoffees of the Land; for the presentation is always firm to the Advowson which is in the Feoffees, Crooke 17 Hen. 7. A. Frowick & ibidem, 2 Hen. 8.160. B. pl. 1. Q. if the Statute of Uses alter not the Law in this point.

The Lord Chancellor shall present to all Churches under 20 Marks per annum, which are belonging to the Crown; but not if the King have them by other Title, Nat. br. 35. K. 38 Edw. 3.3. pl. 14. Com. 528. B. as by Purchase, Attain∣der, &c.

But vide Br. Praescript. 86. that at this day the Chancellor presents to all under 20 l. per Annum. Twenty Marks anciently was more than 20 l. in succeeding times, and that may be the rea∣son.

The Defendant shall have a Quare Impedit a∣gainst the Plaintiff, if his Clerk be not Instituted, Nat. br. 35. C. for without it he is not a perfect In∣cumbent.

The elder Brother presents and dies, the Bro∣ther by the half-blood shall not have the next A∣voidance, Nat. br. 36. E. 3 Hen. 7.5. because, as it seems, he shall not be inheritable of the Advow∣son.

But the 19 Edw. 2. Quare Impedit 177. Con∣tra. Ergo quaere; for he may come in by the Fa∣ther or Grandfather, as Heir to them.

Two Sisters by several venters make compo∣sition for the Presenting, and one dies before Pre∣sentment, the other shall have it, Nat. br. 36. E. for the Agreement lasts but during their lives, and the Executor shall take no advantage of it.

The Bishop shall have a Quare Impedit ratione Patronatus, if he be disturbed.

Patronage of a Deanary belongs to him of com∣mon right, 17 Edw. 3.40. pl. 17. yet the King used of late times to bestow them.

The Bishop shall have a Quare Impedit ratione Lapsus, for by the Lapse a Title to present accrues to him hac vice, and the Writ shall be general, but the Count shall be of the Collation, Nat. br. 33. D. 17 Edw. 3.64. pl. 69. Lib. Intra. 501. A. and shew how he is to present.

If Lapse accrue to the Metropolitan, he may put his Clerk in without the Ordinary of the place, Doct. & Stud. 125. B. because he is supream Ordinary. Yet quaere in that case, whether he shall do it without the King, who is caput Ex∣clesiae.

The Ordinary is deprived after Lapse accrues, quaere who shall have it, 7 Edw. 6. Dyer 87. pl. 203. it seems the King, or it may be the Metropoli∣tan, yet be an inferiour Ordinary.

In quo casu Ordinarius loci providebit Ecclesie viduitati, Bracton, Lib. 2.34. fol. 76. B.

But Bracion says, Lib. 3. that Lapse was but by the Council of Lateran, and before that the Pa∣tron might present at any time Ecclesia vacante.

If it be sound for one Patron in a jure Patro∣natus, and the Presenter prays not to be admitted,

the Ordinary shall present by Lapse, 34 Hen. 6.12. pl. 22. for the Ordinary is to take care to have the Church provided in convenient time.

Although a Ne admittas be sued, yet the Ordi∣nary of the place shall present by Lapse, Nat. br. 48. L. for he only looks upon the vacancy of the Church.

Lapse is, when the Patron doth not present in six Months, then the Ordinary presents by Lapse, Doct. & Stud. 124. B. by the Council of Lateran; by Bracton.

Although the Patron be an Infant or Feme covert, Nat. br. 34. T. 3 Edw 3. Quare Impedit 41. for the Law takes care of the infancy of the Church above all other infancy, in respect of the Cure of Souls.

But this rule of Lapse admits divers exceptions, Scil.

1. So long as the Church is void the Patron may present, Doct. & Stud. 126. A. for the Title by Lapse is not a Chattel vested in the Ordinary, though after six months, if the Ordinary have not presented.

2. It shall not be a Lapse of a Chappel Dona∣tive or Chantry, unless the Patron make it pre∣sentative, and then it shall, for then the nature is altered, Nat. br. 35 E. 6 Hen. 7. br. Presentment 43. Pasch. 3 Jac. Ban. Regis, Fairefield versus Gaire, or be so expressed in the foundation, 13 Edw. 4.3.

3. An Advowson approprlate shall not be Lapsed, Nat. br. 35 F. for there the Church shall be intended to be otherwise provided for, and not by presentation.

4. If the Ordinary be named a Disturber in the Quare Impedit, 5 Edw 3.2. B. 22 Hen. 6.28. And at this day he is named in the Writ to prevent the Lapse, 39 Edw. 3.15. pl. 4. Sta∣tham.

For otherways the Lapse incurrs, 5 Edw. 4.115. for then he can take no notice of the Suit; but it seems that the Ordinary cannot collate him that was the Incumbent, and made Defendant in the suit; for this would be to prevent the trial of the Right.

5. In many cases Lapse shall not incurr with∣out notice, viz. where the Patron cannot take notice of the Avoidance of the Church. As,

1. Upon a Resignation, Nat. br. 35. H. 1 Hen. 7 9. 5 Edw. 4.116. A. for this is a private act.

If the Ordinary dies his Successor ought to give notice, Crooke 18 Hen. 7.41. pl. 2. Quaere of what; it seems of the Churches being void.

2. Upon privation, Nat. br. 35. H. 1 Hen. 7.9. 5 Edw. 4.118. A. for this is also a private act, which the Patron is not bound to take notice of without notice.

Although the Incumbent be meerly Laicus, 13 Eliz. Dyer 293. pl. 3. Q.

And although the party be party to the Suit, Coke 6. part. 29. Greens case, 22 Eliz. Dyer 369. pl. 54.

And although the Title of Lapse be devolved to the King, per Lapsum temporis, 18 Eliz. Dyer 348. pl. 12. 22 Eliz. Dyer 369. pl. 54.

3. If it be Litigious, 34 Hen. 6.40. B. Prisot. Lib. Intra. 511. D. whether the Church be void or not.

4. If the Church be void by any clause of the Statute, 13 Eliz. cap. 12. for such Statute it seems is not a general Law. Quaere tamen, for it seems Patrons ought to take notice of it.

5. Where he shall lose his Benefice, per 2 Edw. 6. cap. 20. for refusing to pay Tithes, 12 Eliz. Dyer 294. pl. 3. for of such a misdemeanour the Patron is not bound to take notice, for it shall not be presumed the Incumbent will commit such an offence.

6. If one have a Benefice within 8 l. per ann. and takes another, and be Inducted, Coke 4. part. 79. and so forfeit the former.

7. If the former be of 8 l. without Induction, no Lapse without notice, Coke 4. part. 79. B. Dig∣bies case.

But after Induction no notice is requisite, Coke 4. part. 75. 7 Eliz. Dyer 237. pl. 29. 8 Eliz. Dyer 255. pl. 5. for that is a notorious act, whereof the Patron may take notice.

And the value of the Living shall be according to the true value, and not according to the Book of Tithes and First-Fruits, 7 Eliz. Dyer 237. pl. 29. which is at an undervalue.

8. Upon refusal of a Clerk to be admitted, Nat. br. 35. I. 15 Eliz. Dyer 327. pl. 7. for of this the Patron cannot take notice, nor shall he presume it.

But Crooke 18. Hen. 7.49. pl. 2. per Frowick, if it be a Spiritual Patron, then it is not requisite to give notice, because he is presumed better know∣ing in such matters than a Lay-Patron.

So for Avoidance per Creation of the Incum∣bent to be a Bishop, Cession, or Death, Doct.

& Stud. 116. B. 5 Edw. 4.115. Quaere of Death.

After privation the Patron grants the Advow∣son to A, the Ordinary collates A; he cannot be removed, for notice ought not to be given him, for it was void to all but the Grantor; for the Ordinary is not bound to take notice of the Grant to A, because it is a private act, Mich. 42 & 43 Eliz. Com. Ban. Rot. 3579. Leake against the Bishop of Coventry.

Notice is to be given as to the Lapse only, for as to the presentation, the Patron may be put out of the possession of the presentation for some o∣ther cause, although no notice is given him, Pasch. 39 Eliz. Com. Ban. Scriven versus Episcopum Lincoln.

A Parson shall have a Quare Impedit for the Vicarage, for of common right it belongs unto him to present, Nat. br. 33. Ʋ.

For if the Vicarage be void, and the Parson be made a Bishop, yet he shall present, for it was a Chattel vested in him whilst he was Parson, Nat. br. 34. N. 24 Edw. 3.26. Q.

A Parson Imparsonee or Incumbent, shall have a Quare Impedit, 17 Edw. 3.51. pl. 25. for the Vicarage.

For a Prebendary, although the Prebend resign after usurpation upon him, 26 Edw. 3.3. Q.

The Chapter brought a Quare Impedit against the Dean, and good; for their possessions are se∣veral, though they be one body Politick, 9 Edw. 3.134. & fol. 354. pl. 33. 17 Edw. 3.64. 40 Edw. 3.28. B. Finchden, 7 Edw. 3. Quare Impedit 72. Lab. Intra. 500. A.

An Hospital which hath no Spiritual possessi∣ons, nether are a Colledge, nor have a Seal, yet the Master shall have a Quare Impedit.

For a Corporation mixt, as in case of the King, 1. In right of the Crown, Nat. br. 32. E. the Writ.

2. By reason of Lapse incurred, for this makes him Supream Patron, Doct. & Stud. 124. B. Com. 498. 18 Edw. 3.19.

Therefore after Lapse accured to the King, the Patron cannot present, Doct. & Stud. 126. A. 10 Eliz. Dyer 277. pl. 55. for the Kings Title shall be preserved and preferred above all other Ti∣tles.

Nor the Ordinary collate after Lapse is accrued to the King, 17 Eliz. Dyer. 339 pl. 47. for the same reason.

But in case, where notice is requisite, the King cannot present without notice, 18 Eliz. Dyer 348. pl. 12. 22 Eliz. Dyer 369. pl. 54. for the King shall not take advantage against one, where there was no negligence in the party.

If the Dean of the Chappel Royal presents not within six months, the King shall present, Nat. br. 34. F. 27 Edw. 3.84. Chappel-Royal is the Kings Chappel, or of his foundation, and he is instead of the Ordinary.

A Parson created is a Bishop, the King shall present, 21 Edw. 3.31. pl. 14. & fol. 41. 11 Hen. 4.37. vide 6 Eliz. Dyer 228. for the Pa∣tron could not have presented till the death of the Parson, and so here is but putting in one person for another, and so he hath no injury.

21 Edw. 3.5. pl. 13. the Writ was, quia per∣tinet ad Regem praesentare ratione. Episcopatus nuper vacantis, and good, when a Living fell, which be∣longed to a Bishoprick, sede vacante.

The Count, Lib. Intra. 530. C. sect. 15.

And the King needs not say in the Count, for that the Temporalties were seized, 42 Edw. 3.7. pl. 27. for that shall be supposed; for by the death of the Bishop the Temporalties are imme∣diately in the Kings hands.

If a Church be void during the time that the Temporalties are in the hands of the King, al∣though he makes restitution of the Temporalties, yet the King shall present, Nat. br. 33. N. Stanford 44 Edw. 3.17. pl. 8. 18 Edw. 3.22. pl. 39. for it was vested in the King by the vacancy, whilst the Temporalties were in his hand.

If the Church become void, and the Bishop dies, the King shall have it, and not the Execu∣tors, Nat. br. 33. Q. 9 Edw. 3.2. Quare Impedit 11. because the King is now Patron, and finds the Church empty.

And although the Bishop collate, Nat. br. 34. K. 11 Hen. 4 9. A. 24 Edw. 3.30. 44 Edw. 3.3. for that makes not the party collated to be Incum∣bent, but his Induction.

But if he die after Induction, although it be the same day, the King shall not have it, 44 Edw, 3.3. for then the Church was full.

If a Lapse accrues to the Bishop, who dies, the King shall present, 25 Edw. 3.53. pl. 20. for he is in place of the Bishop.

It a Lapse accrues after the death of the Bi∣shop, the King shall present, Nat. br. 34. G.

in respect of the Temporalties in his hands.

So if he have judgment to have the Tempo∣ralties, 21 Edw. 3.29. for that is all one as if he were in possession of them.

By Outlawry, of, the Patron in a personal Acti∣on, the King shall present, Nat. br. 34. R. 8 Rich. 2. Quare Impedit 200. 21 Hen. 6.56. if the Church become void during the Outlawry. Quaere, if afterwards the Outlawry, be reversed before the King presents.

A enfeoffs. B of a Mannor, to which, &c. and before was outlawed, and presents per permission of B, the King shall present, because the presen∣tation is a Chattel, 5 Hen. 5. pl. 4. and was for∣feited to the King by the Outlawry.

For Simony, upon 31 Eliz. cap. 6.

The Pleadings, No. Lib. Intr. 405. C. sect. 516. B. 531. D.

Note per 25 Edw. 3. cap. 1. the King shall not present in anothers right, but for the Avoidance in his own time, 11 Hen. 4.7. pl. 16. which is in his own right.

Note, if the King presents one that dies before Induction, the King shall present again, for he had not a compleat presentation before, Coke 9. part. Holts case, vide Regist. orig. 31. B. for his Clerk was never in.

But if the King have title hac vice, and another presents A, which dies, the King hath lost his turn, Coke 7. part. 28. Baskerviles case, No. Lib. Intra. 489. A. for he was to have but this nume∣rical presentation, and is not like the having of the next presentation.

Yet if one qualified to have two Benefices takes another incompatible, the first is void by two years; the Patron presents where the King ought to have presented, and after Induction his Clerk refuses to pay his Tenths, and this is cer∣tified according to the Statute of 26 H. 8. the Bi∣shop being Patron collates, the King shall present notwithstanding, for this refusal is as it were a Resignation to the Bishop, which shall be intended a Collusion betwixt him and the Bishop, to take away the Title of the King, Mich. 29 & 30 Eliz: Com. Ban. Rot. 22 99. the King against the Bishop of Lincoln.

12 Eliz. Dyer 292. pl. 70. 25 Edw. 47. the King presents to a Prebendary ratione tempora∣lium, and revokes it before the Installment of the Prebend; and yet he is Inducted, and the King confirms it, and after he is made a Bishop, the Prebend dies, the King shall present again, and not the Bishop, for the confirmation of the King was void, because the Prebend was not in ex prae∣sentatione Regis, for that was revoked before the Confirmation.

Nat. br. 38. D. the King recovers a Prebendary, and gives it by Letters Patents to A, who dies, the King gives it to B, he shall have Writ to the Justices to make execution for him, viz. of th•••• Court where the Prebendary was recovered.

Disseisee shall have a Quare Impedit before his entry into the Mannor, to which the Advowson belongs, 21 Hen. 6.9. B. 19 Hen. 6.33. 33 Hen. 6.33. B. Nat. br. 33. Q. 24 Hen. 8. Dyer 5. pl. 6. Crooke 6 Hen. 8.169. A. Pollard; for the Advow∣son was not divested by the disseisin.

Disseisor presents, Disseisee enters into the Man∣nor to which, &c. and presents, he shall have a Quare Impedit, if it be within six months, 14 Hen. 6.24. Fulthorp; for by his entry he hath regained the Mannor, and avoided the Disseisors presentation.

Add if the Disseisor presents, and the Disseisee enters into the Mannor, to which, &c. and en∣feoffs B thereof, with the Advowson, the Church voids, B shall have a Quare Impedit; for by the entry of the Disseisee he was in the possession of the Advowson, 3 Hen. 4 7. pl. 33. 14 Hen. 6.16. pl. 52. and so it passed with the Mannor by the Feoffment.

But 33 Hen. 6.33. Prisot to the contrary; for there it is said, that until Recovery the Disseisee shall not have the Advowson. Q.

Disseisor dies seized of a Mannor to which the Advowson belongs, the Disseisee shall not have a Quare Impedit, 24 Hen. 8. Dyer 5. pl. 6. 33 Hen. 6.33. B. vide 19 Hen. 6.33. in respect of the de∣scent, which takes away his entry into the Man∣nor, and so he must recover the Mannor before he can have the Advowson.

But if it void in the time of the Disseisor, the Disseisee shall have it, although the Disseisor died seized afterwards of the Mannor, to which, &c. 24 Hen. 8. Dyer 5. pl. 6. for there was no descent barr when the Church became void, and so it was a Chattel vested.

A Disseisor suffers a Usurpation, Disseisee en∣ters into the Mannor, Disseisee shall have a Quare Impedit, Nat. br. 36. F. 14 Hen. 6.14. 3 Hen. 4.7. for the usurpation is defeated by the entry of the Disseisee.

Executor of the King shall not have a Quare Impedit, but the Successor of the King, for this is a Chattel Royal, 7 Hen. 4.25. pl. 3. 1 Edw. 3.17. pl. 8. 5 Edw. 3.149. pl. 15. which shall not go to an Executor, for it is vested in the Crown.

Executor of a Common person shall have a presentment to a Church, which was void in the time of the Testator, although the Testator were but Tenant in tail, Nat. br. 33. P, & Ʋ. because it was a Chattel vested in the Testator.

Although the Heir be in ward to the King, Nat br. 33. R. for the King in respect of the Wardship shall not be in a better condition, than the Heir should have been, if he had been at full age at the death of his Ancestor.

If one recover in a Quare Impedit and die, the Heir shall not have execution, but the Executors, 9 Hen. 6.57. A. Rolfe; for the recovery made it a Chattel vested in the Testator.

At the Common Law the Infant was bound by suffering an Usurpation, 35 Hen. 6.6. that is, to suffer one to present in his stead, 31 Edw. 3. Quare Impedit 186. 10 Edw. 2. Quare Impedit 43. for the Common Law respects the Churches good, before Infants, Widows, or Orphans, although it be tender of all.

But at this day he is not, per Westm. 2. cap. 5. The Law before seemed too hard against Infants, who may be presumed not conusant of the Law, and ignorant of his title.

Unless he be a Purchaser, 10 Edw. 2. Qu. Imped. 43. 35 Hen. 6.60. Nat. br. 31, & 34. It seems he is not within the Statute: He may, if a Purchaser,

be presumed not so well conusant of his title as if he had it by descent.

Or that the party that usurps be remitted to an eigne title, Nat. br. 35. M. for then the presenta∣tion did not belong to the Infant.

If he suffer Usurpation, having it by descent, he is bound till full age, 16 Edw. 3.9. Quare Im∣pedit 62. for he shall be judged better conusant of such estate than of a purchased estate; and he might have presented himself.

And if in his minority he suffer Usurpation, and at full age enfeoff B of the Mannor, to which, &c. yet B shall not be in, Nat. br. 34. X. because it was out of the Feoffor at the time of the Feoff∣ment, and so it passeth not.

But by 16 Edw. 3. Quare Impedit 67. Coke 6. part. Boswels case, the Infant is also bound in all these cases. Q.

The Usurpation at the Common Law shall bind a Woman Covert, 35 Hen. 6.6. Prisot, 31 Edw. 3. Quare Impedit 180. 10 Edw. 2. Quare Imped. 43. vid. antea.

The husband suffers an Usurpation, where the Woman is the purchaser, she shall not have a Quare Impedit, but the husband; but if she had it by descent, she shall have the next turn, per Westm. 2. cap. 5. Nat. br. 34 S. to present.

The husband discontinues one Acre of his wives Mannor, to which an Advowson is appen∣dant with the Advowson, the wife may not pre∣sent, unless after the Alience sever the Advowson from the Acre, Nat. br. 32. 17 Edw. 3.5. pl. 12. for then the Advowson is not appendant to any thing.

The King grants the Advowson in Fee, the Church being void, the Grantee presents, Nat. br. 33. N. for the grant shall be taken most benefici∣ally for the Grantee.

But this is intended when the King hath but one Title to the Advowson, 10 Eliz. Dyer 269. pl. 19. 9 Edw. 3.26. Stamford. Praerogat. 44. 16 Hen. 7.7. 18 Edw. 3.22. A. Pole. for if he have two, the Grant shall not be taken to two in∣tents.

For if he had two Titles the Grantee shall not present, 13 Eliz. Dyer 300. pl. 36. 18 Eliz. Dyer 300. pl. 36 Eliz. Dyer 348. pl. 12. for it is in∣certain which Title was granted, nor can be known with what Title he presents.

But 9 Edw. 3.348. pl. 24. the orders of the Templers were dissolved, the Church belonging to them to present to voids, and after the Ad∣vowsons, &c. appendant to their mannors, were given to the Hospitallers per Parliament; the King shall not have the presentation, for here the King had but one Title, and also acts of grace shall be construed largely against the King.

A Common person grants the Advowson in Fee when the Church was void, the Grantee shall not have the presentation, because it is a thing in action, 11 Hen. 4.54. which lies not in grant, but may pass by Act of Parliament.

So of a Feoffment of Land, to which an Ad∣vowson is appendant, 24 Eliz. Staffords case, the Church being void at the time of making of the Feoffment.

But if the Feoffment be upon condition, and the Church becomes void, and afterwards the

Feoffor enters for the Condition broken, the Feoffee shall present, because it is a Chattel vested in him, 24 Edw. 3. before the entry of the Feoffor.

If there be a Feoffment of the third part of a Mannor, the Feoffee shall not have the third pre∣sentment, 6 Edw. 3.215. A. for the Advowson is not appendant to it, for it cannot be appendant by parcels.

Unless it be with three presentments, 9 Edw. 3.341. pl. 31. viz. where three present to the Ad∣vowson by turn. Q.

Grantee of the next Avoidance shall have a Quare Impedit, 39 Hen. 6. Quare Imp. 95. for he hath a good Title to present hac vice.

The Count, Lib. Intra. 520. D.

And if the Grantee of a Mannor to which an Advowson is appendant, levies a Fine of the Advowson, yet this puts him not out of possession of the Advowson, 19 Edw. 3. Quare Imped. 154. because it puts him not out of possession of the Mannor to which it appertains.

Grantee by Parliament suffers a usurpation; this doth not put him out of possession, 16 Hen. 7.8. Keble, because he is in by Title of so high a nature, which shall not be intercepted by an ordi∣nary act of the party.

Grantor by Fine usurps; this shall not trouble the Grantee, 31 Edw. 1. Quare Impedit 187. for a Fine is of a high nature, and barrs the Conusor of all right.

Tenant in tail for life, or years, grants their E∣state in an Advowson, the Church voids, the Gran∣tee shall present, because it is a Chattel vested, 9 Edw 3.366. pl. 4. in the Grantee during the estate tail, and for life.

If the Daughter suffers a Usurpation, the So•• afterwards born shall not have a Quare Impedit 11 Edw. 3. Quare Impedit 138. for he was not 〈◊〉〈◊〉 rerum natura at the time of the usurpation, and 〈◊〉〈◊〉 had no right.

A Founder of a Church shall have a Quare Im∣pedit of common right, for he is presumed Pa∣tron, and because he enters upon the dissolution 12 Edw. 4.30. A. Catesby. Q.

One of them, viz. Joyntenants, shall not have a Quare Impedit against the other, Nat. br. 34. Ʋ. 14 Eliz. Dyer 304. pl. 54. 33 Hen. 6.11. B. in re∣spect of their undivided and undistinguishable in∣terest.

Nor against a Stranger; but they must joyn, or else the Disturber might be twice sued for one disturbance.

But where one pleads Joyntenancy of part of the Advowson, the Plaintiff ought to entitle himself to the whole Advowson, or shew that he is Incumbent of all, 31 Hen. 6.51. B.

Joyntenancy of part is no Plea, 14 Hen. 6.14. 14 Hen. 4. Joyntenants 32. for it cannot be; for Joyntenants are seised per my & per tout.

Joyntenant presents sole; this shall not put his Companion out of possession, 27 Hen. 8.13. for it shall be intended, he intended it not but to pre∣sent so, as the Law requires.

But 11 Hen. 4.44. Hanford e contra. Ergo quaere.

If they make composition, and present accord∣ingly, yet afterwards, if one be disturbed, he shall not have an Action without his Companion, 20 Edw. 3.72. for that composition concerns not Strangers, but is only a private act betwixt them∣selves.

Nominator to a Living shall have a Quare Im∣pedit against him that presents, Nat. br. 33. A. be∣cause by the Nomination he had the fruit of the Advowson, 14 Hen. 4.11. pl. 9. 14 Edw. 4.2. pl. 2. 32 Hen. 8. Dyer 48. pl. 16. 22 Edw. 3.77. pl. 103. 24 Edw. 3.69. pl. 78. And the Writ shall be general, Nat. br. 33. A. 24 Edw. 3.69. pl. 78. as in case of Patronage.

For if it be [Nominare] this shall abate the Writ, 14 Hen. 4.11. 21 Hen. 6.17. A. for the Law takes no notice of such a term; but the Count shall be special, Nat. br. 33. A. and set forth the whole matter how he is enabled.

For in 14 Hen. 4.11. per Hill. Nominator is in a manner the very Patron, and so taken notice of in Law as such, 24 Edw. 3.69.

A grants to B that he shall have the next No∣mination to the Church of D when it is void, and that he shall present his Clerk to the Bishop, if the Grantee be disturbed, he shall have a Quare Impedit, for he is the Patron hac vice by the words of the Grant, Crooke 2 Hen. 8.161. pl. 1. per Read.

The eldest Parcener shall have the first present∣ment, Nat. br. 33. L. 38 Hen. 6.9. pl. 19. Doct. & Stud. 115. B. Nat. br. 34. Ʋ. Crooke 12 Hen. 7.1. A. and so in order by turns, if there be more than two.

So the Husband of the eldest being Tenant by Courtesie, Nat. br. 33. L. 5 Hen. 5.10. pl. 24. for he is in upon his wifes right and title, originally.

So he that hath the estate of the eldest, for his interest passeth with the estate, Nat. br. 34. Ʋ. but Crooke 18 Hen. 7.49. pl. 5. by Frowicke, if he

grant this when the Church is void before any presentment by him; the Grantee shall not have the first presentment, because he is a stranger in blood, and the Feoffee cannot claim that privi∣ledge in Law.

Where a Parcener grants his Estate to B (the Church being void) yet the Parceners ought to joyn in a Quare Impedit, 11 Hen. 5.54. in respect of their joynt right and title at the time of the Grant.

The pleading of a Partition between Parceners, No. Lib. Intra. 468. B, & C.

If they make partition to present by turn, and the youngest dies, his Heir in ward to the King, he, viz. the King, shall present during the Non∣age, 21 Edw. 3.32. pl. 14. 22 Edw. 4. for his ward∣ship shall not make him lose his right to pre∣sent.

Parceners agree to present by turn, this is a good partition as to the possession, 20 Edw. 3. Quore Imp. 63, 65. viz. of the Advowson.

But Nat. br. 33 L. è contra, because the Inhe∣ritance is not. Quaere ergo.

Doct. & Stud. 11. the King shall have the first presentment, the eldest the second. Quaere in what case.

But 38 Hen. 6.9. pl. 19. the Issue of the eldest Coparcener was in ward to the King, there three others by their pleading shew a partition of the Mannor in Carvel, except the Advowson, and sue to the King to present, after the fourth sues for the Advowson; the Issue of the eldest shall present, because the presentment of the King was in right of them all, and not in right of the turn of the Issue.

Upon composition to present by turn, if it be inrolled in a Court of Record, they shall have a Scire facias one against the other, when their turn comes to present, Nat. br. 34. H. 21 Edw. 4.6. pl. 36. B.

So against a Stranger that usurps in their turns, if the partition be of Record only, the Law takes no notice of it, Nat. br. 36. C. but they may joyn in a Quare Impedit against a Stranger, for the Law takes notice of their joynt title, and also present in common; but by this the composition is waved, Nat. br. 36. D. for it shews, they rely not upon the composition, but hold there to that way of pre∣sentation that the Law gives them.

The surprize of one Parcener shall not put the other out of possession, when his turn comes a∣gain, for he gains no title by it, Nat. br. 34. J. 6 Edw. 3.210. pl. 13. 7 Edw. 3.239. pl. 27.17 Edw. 3.38. pl. 10. 30 Edw. 3.15. pl. 15.

Although that it be made by the King in right of one Parcener, being in ward to the King, 22 Edw. 4.8. for the same reason.

My Procurator presents as to his own Advow∣son, as Procurator to me, by this I shall have a∣gain the possession, and out him, Nat. br. 35. O. 17 Edw. 3.60. pl 60. for by presenting as my Pro∣curator he acknowledgeth my right.

Recoverer in right of an Advowson suffers an usurpation, he shall not have a Quaere Impedit, 45 Edw. 3. Quare Imped. 139. because he was not in actual possession of it by the Recovery, and so hath but a meer right still.

Tenant for life or years of an Advowson suffers an usurpation, the Lessor shall not be aided by

his own, Westm. 2. cap. 5. for it is a fault to lett it to such a Tenant.

But his Heir shall be, Nat. br. 31. G. for he is in no fault.

But 33 Hen. 6.12. pl. 3. 34 Hen. 6.27 pl. 8. è contra. Ergo quaere.

If Tenant for years or a Gardein brings a Quare Impedit, and a Writ be awarded to the Bishop for the Defendant, yet the Tenant of the Franktenement is not out of possession, for the Presentee is in by course of Law, 50 Edw. 3.14. B. Coke 6. part. 50. B. Boswells case; and there∣fore the Tenants or Gardians interest shall not be prejudiced.

The Queen shall have it alone, because she is a sole person exempt by the Common Law, and cannot joyn with any in a Suit; and the Writ shall not say unde queritur, because she shall not find Pledges, 18 Edw. 3.2. pl. 6. for it were dishonourable for her to find Pledges, for she shall be presumed to be sufficient, and so deal justly with all.

The Lord that hath an Advowson by Escheat, shall have a Quare Impedit, the Count, Lib. Intra. 500. D. in respect of his Title accrued by Law.

If an Abby, which hath an Appropriation, be dissolved, the Lord that hath the Mannor to which it was appendant shall have a Quare Impe∣dit to present to the Advowson, Nat. br. 33. K. Coke 2. part. 47. B. Canterburies case, 21 Hen. 7.4. B. Frowick, 20 Edw. 4.14. B. Com. 501. Gren∣dons case; for by the dissolution the Appropriati∣on is extinguished, and the Lord in of his old right to the Patronage.

Tenant in tail suffers an Usurpation, he hath no remedy, for it was his own Latches to suffer it; but his Issue shall have a Quare Impedit, 49 Edw. 3.14. pl. 9. This is by the equ ty of Westm. 2. cap. 5. Coke 6. part. 50. B. Boswells case, who shall not be prejudiced by his Fathers act.

Tenant in tail of a Mannor to which an Ad∣vowson belongs, enfeoffs A of the Mannor, which grants the Advowson to B, and re-enfeoffs the Tenant in tail; the Issue shall not have a Quare Impedit, because the other had no remedy, Nat. br. 35. B. 19 Hen. 6.30. and so shall not be in a better condition, and by the Grant of the Ad∣vowson apart it ceaseth to be appendant.

Tenant in tail leases his Estate over, the Church voids, he dies, the Issue in tail shall present, 9 Edw. 3.10. and not the Lessee of the Mannor; for the presentation is not comprized in the Lease.

Tenant in tail suffers an Usurpation before the Statute, the Issue shall not have a Quare Im∣pedit after the Statute, 8 Edw. 2. Quare Imp. 167. for before he was in no better a condition than his Ancestor, and the Statute was made for the be∣pefit of the Issue in tail.

Tenant in Dower shall have the third present∣ment, where she is Dowable of the Thirds, Nat. br. 33. L. 33 Hen. 8. br. Presentment 55. 15 Hen. 7.17. Q. what she shall have when she is Dow∣able of the half, during her Widowhood, by the custome of Gavel-kind.

So if she have the third part of a Mannor to which an Advowson belongs, Nat. br. 34. Q. 6 Edw. 3.215. in the respect of interest in the Man∣nor, proportionable to it.

Tenant for life shall have a Quare Impedit, in respect of his Freehold.

The Count, Lib. Intra. 513. A.

But if he suffers an Usurpation, he shall not have a Quare Impedit at any time after, 22 Hen. 6.26. B. for it was his own Latches to suffer it, for he might have brought his Quare Impedit upon the first disturbance.

Tenant for years shall have a Quare Impedit, al∣though he doth not present within the term, Nat. br. 34. B. 9 Edw. 3.338. pl. 6. 39 Hen. 6.39. viz. if the Church become void during the term, and no Lapse incurred, for it was a Chattel ve∣sted.

Tenant in common shall not have it without his Companion, Nat. br. 34. Ʋ. 14 Eliz. Dyer 304. pl. 52. 33 Hen. 6.11. B. in respect of their com∣mon interest, and that the Disturber may not be doubly vexed.

He that traverseth an Office, and hath the Land in Farm, shall have the presentment, if the Church be void during the time of his Lease, so it be found for him, although no mention be made of the Advowson, Nat. br. 34. P. for it goes with the Land.

Note, that the King upon an Office found for him, shall not put the Patron out of possession, without admission and institution of his Clerk, Coke 9. part. 96. A. Reynels case; for that is the only way to gain possession of an Advowson, and an Office may not be true, for it is traversable.

Against whom a Quare Impedit lies.

It lies against a Patron sole, 29 Hen. 6.57. 19 Hen. 6.67. pl. 14. & fol 73. pl. 1. & fol. 75. pl. 5.

But then the Incumbent shall not be removed, 29 Hen. 6.57. 7 Hen. 4.34. for if he be, it lies also against the Disturber.

Unless there be no Incumbent at the time of the Writ brought, 29 Hen. 6.57. 19 Hen. 6.67. pl. 14. & fol. 73. pl. 1. & fol. 75. pl. 5. for then the Patron only must necessarily be the Distur∣ber.

If it be against an Incumbent sole it shall abate, 3 Hen. 4.2. Quare Impedit 113. 41 Edw 3.2. Br. Quare Imped. 24. vide 47 Edw. 3.10. for he comes in under another mans right, who must be named in the Writ.

But note, this is intended when the Inheritance, estate or interest of the Patron in the Patronage, is to be devested by the Judgment, for otherwise he ought not to be named, Coke 7. part. 26. B. Halls case, for it concerns him not to be made a party.

When there is no Patron, the Writ shall be a∣gainst the Incumbent sole, 13 Hen. 8.12. 4 Hen. 8.3. for there can be no other Disturber but he.

When the King presents, it lies against the In∣cumbent sole, because the King shall not be sued, Coke 7. part. 26. B. Halls case, 92 Hen. 8. Dyer 48. pl. 16. 24 Edw. 3.77. pl. 103. Crooke 19 Hen. 7.53. pl. 9. But by Petition he may be sued too, and the Law intends he will do all his Subjects right without suit.

It lies for the Defendant against the Plaintiff, if the Clerk of the Defendant be not instituted, Nat. br. 35. C. and he be disturbed by the Plaintiff. It seems this is meant where there is a cross Suit betwixt them.

But not of the same presentation, if the Plain∣tiff have brought his Writ, 19 Hen. 6.67. pl. 14. & fol. 73. pl. 1. fol. 75. pl. 5. 22 Edw. 3.4. pl. 10. for he that first commences his Action shall first determine his right.

The King grants a Free Chappel to B by Pa∣tent, if the Sheriff will not put him into possessi∣on, he shall have a Quare Impedit against the Sheriff, for this is in the nature of a Lay see, and belongs not to the Ordinary, and the Writ shall be general, 14 Hen. 4.11. pl. 9. Haukeford, as in other Quare Impedits; but the Count must be special, as it seems.

Quare Impedit, of what disturbances it lies.

If a Disturber presents three times within the six months; Quare Impedit lies for the former, Nat. br. 35. R. of the Presentations; for there began the first cause of action.

The Ordinary refuses to grant a Jure Patrona∣tus to try the Title, or to admit the Clerk, a Quare Impedit lies, 33 Hen. 6.12.32. 34 Hen. 6.11. 35 Hen. 6.38. for this is a disturbance to the Presentation.

So if it be Litigious, and the Ordinary admit a Clerk without awarding a Jure Patronatus, 22 Hen. 6.25. Bre. 83. for this is to disturb by fore∣judging of the right.

So if he do not admit him within convenient time, 22 Hen. 6.29. for delays are disturbances, and accounted denials; for Justice ought to be speedily done.

The Bishop refuses to admit the Clerk, because it was first found for another in a Jure Patronatus; this is a disturbance, Nat. br. 35. G. for he is not to take notice of the Suits between the parties.

Unless the Admittas be delivered to him, 21 Hen. 6.44. for that is the Act of the Court, of which he is bound to take notice.

Quare Impedit, of what things it lies.

And if one had been disturbed before the Sta∣tute, yet he should have had the Writ, because the Statute refers before as well as after, 6 Edw. 3.221. pl. 51. Q.

The Count, Lib. Intra. 646. C.

It lies of a Chappel, 22 Hen. 6.25. B. antea.

And it lies by Westm. 2. cap. 5. Lib. Intr. 52. A. sell. 2.

The Writ shall be Praesentatum ad Capellam liberam, Nat. br. 32. H. 8.

But if the King brings a Quare Impedit of his free Chappel, it shall be praesentare ad Praebendam in his Frank Chappel, Nat. br. 33. & 16 Edw. 3.3. nota differentiam.

It lies of a Deanary, 17 Edw. 3.40.

It lies of Domus Sancti Martini, in Bristol, Nat. br. 33 G.

It lies of an Hospital, Nat. br. 33. G. pro Westm. 2. cap. 5. the Count, Lib. Intra. 506. C. Sect. 1. because they are all presentative.

It lies not de medietate Advocationis, neque de Advocatioue medietatis Ecclesiae, Nat. br. 33. A. 33 Hen. 6.11. B. Prisot, vide 4 Hen. 6.15. B. for it must be of an entire thing, or at least so sup∣posed by the Writ, for the Law takes no notice of such moieties.

But in such cases the Writ shall be general (scil. ad Ecclesiam) and not (ad medietatem Ec∣clesiae;) but the Count shall be special, and set forth special Title, Coke 5. part. 102. Winsors case, 16 Edw. 6. Dyer 78. pl. 44.

But where there are two several Patrons, and two several Incumbents of the same Church, within one and the same Village, so that the Ad∣vowson and Church are severed in right and pos∣session, there one Patron may have a Quare Impedit de medietate Ecclesiae, Coke 10. part. 135. B. Smiths case; for there their Titles are en∣tire.

21 Hen. 6.4. pl. 8. in fine, One person says that he was Parson but of the Moiety of the Church, and good, 7 Edw. 3.246. pl. 24. Quare Impedit of the Moiety of the Church. Q.

It lies of a Parsonage, and the Writ shall be ad Ecclesiam, because Ecclesia is intended of a Par∣sonage, Nat. br. 32. H. viz. the possession of the Church, Glebe, and Tithes.

It lies of a Prebendary, per Westm. 2. cap. 5.

The Count, No. Lib. Intr. 507. B.

The Writ shall be ad Praebendam, Nat. br. 32. H. 40 Edw. 3.17. pl. 7. but it ought to shew the name of it, 40 Edw. 3.17. to make it more cer∣tain, for else the word is too general.

It lies of the Subdeaconry of York, Nat. br. 34. G. because presentative of right, as it seems.

The Writ shall be quod permittat eum prae∣sentare, and yet the King gives it by his Letters ters Patents, Nat. br. 34. G. but it seems such Writs were but of puisne temps.

It lies of a Vicarage, per 2. Westm. cap. 5. viz. a Vicarage to be endowed.

The Writ shall be ad Vicariam, Nat. br. 32. H. which the Law well takes notice of.

The Count in a Quare Impedit.

He that brings a Quare Impedit in his count ought to alledge a Presentment in himself, or in his Ancestors, or in him by whom he claims, Nat. br. 33. H.

1. Unless a man erect a new Church, for then the Count shall be special, Nat. br. 33. H. 17 Edw. 3.12. and shall set it forth, to make it ap∣pear he cannot alledge a Presentment.

2. If he recover in a Writ of right, then he may alledge the presentation in him against whom he recovered, Nat. br. 33. J. Q.

Or he may have this Writ without alleadging any presentation, for he may count upon the Re∣cord, Nat. br. 36. A. whereby he recovered, and that makes it appear the Presentation belongs to him.

Or if he recover in a Quare Impedit, the same Law, 42 Edw. 3.8. pl. 5.

3. He may alleadge seisin in the Procurator, Nat. br. 33. J. 17 Edw. 3.60, & 75. which is, as it were his own seisin.

He that alleadges Presentation in himself, ought to shew that the Presentee was instituted, al∣though that it was against a Common person, for without Institution he had no fruit of his pre∣sentation, and so it is as nul. But against the King he ought to shew that he was Inducted, Com. 528. Bickleys case, Coke 6. part. 49. Boswelt case; for a man must make a full and compleat Title against the King.

And such presentment ought to be within me∣mory, 17 Edw. 3.10. Quaere of the Law at this day.

Devisee for life alleadges the presentation in himself, and good, Coke 5. part. 37. 8 Hen. 5.10. in respect of his Free-hold.

Of the presentation of Tenant for life, vid. Coke 5. part. 97, 98.

For years, 7 Edw. 4.20. 22 Edw. 4.9. B. In Dower.

By the Courtesie.

At Will, 5 Hen. 5.3. pl. 6.

These are the presentments of him that hath Fee. Q.

The King grants the Advowson to A, the Church being void, and presents, 13 Eliz. Dyer 330. pl. 36. by Lapse, 21 Eliz. Dyer 364. pl. 28. and good, for his grant hinders not, for he pre∣sents by Lapse upon another title.

But the issue in Tail ought to alleadge pre∣sentment in the Donor, because he derives his title from him, or he may alledge it in himself, Com. Manxels case, fol. 4. B.

If it be alleadged in the Donor or Donee, Lessor or Lessee, it is not double, because the

Presentment of the Lessor or Donor is only tra∣versable, and not of the Lessee or Donee, Coke 5. part. 99. A. Northumberlands case.

For the Lessee ought regularly to alleadge it in the Lessor, Coke 5. part. 98. A.

Yet, if he alleadge Presentation by himself it is good, 8 Hen. 25.4.

But in the Judgment of the Law this is the Presentation of the Lessor, Coke 5. part. 89. and so taken notice of what ever he alleadge.

A Purchaser may alleadge it in him whose E∣state he hath, because he derives from him, 13 Hen. 8.12. pl. 2. 2 Edw. 3. pl. 29.1. 6 Edw. 3.204. pl. 7. Nat. br. 33. H.

He that brings a Quare Impedit ought to shew, specially how the Church becomes void, 5 Edw. 4.72. B. for the Iucumbent may be removed out of possession by Spoliation, Disseisin, or be outed otherways, yet then the Church is full in the eye of the Law.

The Process in a Quare Impedit, 1. Before appearance; 2. After.

Vide Lib. Intra. 52. B. Sect. 1, 2, 3, 4, 5, 6, 7, 8. At the Common Law it was but a Distress infinite, 11 Hen. 6.3. Martin.

But per le Stat. Marlebridge, cap. 12. if he ap∣pears not at the Grand Distress, a Writ shall issue to the Bishop, 24 Edw. 3.37. 5 Edw. 4.115. 7 Eliz. Dyer 241. pl. 48. 7 Eliz. Dyer 241. pl. 1. Nat. br. 38. N.

The same Law in a Scire facias by the King, upon a Judgment in a Quare Impedit, 14 Edw. 3. Qu. Imped. 5.

So if the Sheriff returns a Nihil upon the Grand distress, 12 Hen. 4.4. Hankeford, 21 Hen 6.56. pl. 13. 11 Hen. 6.3. pl. 8. because the Process is determined, vide 27 Hen. 6.5. pl. 32. for the Sheriff hath done as much as he can in the executing of it.

And this is for the mischief of the Lapse, 24 Edw. 3.37. viz. in all the foregoing cases where∣in there is no Laches in the Patron, nor any de∣lay caused by him.

But if a Nihil be returned upon the Summons, Attachment, and Distress, quaere 11 Hen. 6.3. if a Writ to the Bishop 4. shall issue; yet the better opinion there is, that a Writ shall issue to the Bishop. And this seems to be so upon the same ground, viz. for the mischief of a Lapse.

And if a Quare Impedit be against two, and one appears at the Grand distress, the other makes default, a Writ shall issue to the Bishop pro querente against him that made default, N••t. br. 39. B. 14 Hen. 7.19. but not against the other because he appears according to Law.

Quare Impedit against the Bishop and B, 〈◊〉〈◊〉 makes default at the Grand distress, the Bishop pleads that he claims nothing but as Ordinary, the Plaintiff shall have a Writ to the Bishop against B, after the Count made against the De∣fendants upon the Bishops appearing at the Grand distress, 10 Hen. 6.4. Writ to the Bishop, 3.

In a Quare Impedit the Defendant appears, and after appearance makes default, the Plantiff shall have a Writ to the Bishop, 2 Hen. 4.1. pl. 3. Nat. br. 38. S. because it shall be intended he will not longer defend himself.

At the Grand distress the Defendant pleads to issue, and after makes default, a Writ shall issue to the Bishop without more ado, for the Grand distress was issuable, 16 Edw. 3. Writ to the Bishop 17.12 Edw. 2. Quare Impedit 168.

Upon a default at the Grand distress the Plain∣tiff shall have Judgment, Lib. Intra. 507. A. Sect. 1, 2, 3. Judgment, as upon a Nihil dicit.

The Plaintiff is Non-suited, the Defendant shall have a Writ to the Bishop without making Title, as it seems; but the surest way is to make Title, 33 Hen. 6.1. pl. 2. for that puts all without question for the future.

T brought an Assize of Darrein Presentment against P, and the Assize was taken by his, viz. P's default, and when the Assize was sworn, T with∣drawed himself; P shall have a Writ to the Bi∣shop, although he was not in Court, 9 Edw. 3. Darrein Presentment 17. for some Judgment must be, and it cannot be for T. And although P ••••de default, yet the enquest might have found for him upon something of their own know∣ledge.

Barr in a Quare Impedit, 1. By the Ordinary. 2. By others.

The Church was Litigious, and he Collated after the six months, 34 Hen. 6.41. pl. 10. 5 Hen. 7.19. 34 Hen. 6.38. 2 Hen. 6.44. 18 Edw. 3.

It shall be accounted Litigious, where there are two Presentations and two Commissions, and one

Commission is found for one, and another for ano∣ther, 22 H. 6.44. A. Newton & Paston; for no man here can judge whose the right is, for they are as it were in aequali jure.

But if the Title of one be found, and another present, and request is made to admit the Clerk, for which it was found, it is not Litigious, 22 Hen. 6.28. Br. of Quare Impedit 80. for there is a Title found for one, and none for the other.

If two Joyntenants, or Tenants in common present severally, it is not Litigious, Doct. & Stud. 116. A. for their right is one and the same.

If two present severally, and neither the one nor the other pray a Commission to enquire the right, the Church is Litigious, Lib. Intra 511, & 512. 35 Hen. 6.18. pl. 27.8. Edw. 3.289. pl. 49. because the right of neither is put in issue.

Claiming nothing but as Ordinary, Judgment, si, &c. without special disturbance; this is good, 5 Hen. 7.19. 22 Hen. 6.15. 33 Hen. 6.••••.32. viz. a good plea in barr for the Ordi∣nary.

But the Plaintiff upon this may pray Judg∣ment, and have it with Cessat Executio, until, &c. Crook 17 Hen. 7.43. pl. 9. the right determi∣ned.

Pleas in disability of the person presented, are as followeth:

• 1. An Alien, 7 Rich. 2. and this although he be made Denizen after, ibidem; viz. after he pre∣sented, for he was not idoneous at the time of the refusal.

• 2. Bastard, Coke 5. part. 58. A. 11 Hen. 4.8. A. 11 Hen. 7.12. 11 Hen. 4.37. but if he be ad∣mitted it is good. 29 Edw. 3.44. pl. 3. Q. whe∣ther, and by what Law it is a good plea, because he is nullius filius.
• 3. Blind, Coke 11. part. 29. B. For he can∣not see to study, nor can watch over his Flock. Q. tamen. For blind men have received Orders.
• 4. Heretick. Coke 11. part. 29. B. For he is not fit to instruct or guide his flock.
• 5. Homicide, 38 Edw. 3.2. For he is not fit to be a Minister of the Gospel of peace.
• 6. Infant, Coke. 5. part. 58. A. 6. Edw. 3.184. pl. 6. Herle. For he is not fit to guide himself or his own estate, much less others souls.
• 7. Jew. Coke 11. part. 29. B. qua a Jew; but if a convert, it seems he may.
• 8. Illiterate, 12 Eliz. Dyer. 293. pl. 3. Coke 5. part. 58. A. Specotts case. 40 Edw. 3.25. pl. 31. For he is unfit to teach, and had more need to be taught.
• 9. Perjured, For he will make little conscience of Religion.
• 10. Irreligious. 5 Hen. 7.6. Q. how.
• 11. Miscreant, Coke 5. part. 58. A. Specotts case, viz. that believes not rightly the Articles of the Faith: For how will he maintain and in∣struct others in it?
• 12. Not able upon examination, 39 Edw. 3.1. pl. 5. viz. of the Ordinary in the principles of Religion, and other fit qualifications.
• 13. Premunire, 38 Edw. 3.3. pl. 9. In re∣gard of the heinousness of the offence and pu∣nishment.

• 14. Himself patron, 31 Hen. 6.621. For he ought not to present himself.
• 15. Saracen, Coke 11. part 29. B. or Turk, or Infidel, not acknowledging God and Christ.
• 16. Schismatick, Coke 5. part. 58. A. Specotts case. For he will make disturbance in the Church.
• 17. Simonist. Lib. intra. 532. A. Q. By what Law.
• 18. Villain, 14 Hen. 7.28. B. for he is not sui juris.
• 19. Utlaw, Coke 5. part. 48. A. Specotts case, For he is fit for no society, and unfit to teach obedience to others, that hath none himself.

These are good Causes of refusal, viz. which are above specified.

Where one having a Parsonage in Wales, and could not speak Welsh, and therefore excepted un∣to as insufficient, it was demurred to Trin. 27 Eliz. Albany versus Episcopum S. Asaf. Q. De¦ley. as not a sufficient cause.

These are not good causes of refusal.

That he hath another Benefice with Cure, 14 Hen. 7.28. B. For he may be qualified to have two Benefices by the Stat.

Hunter of Taverns and a player at unlawful Games, Coke 5. part. 57. Specotts case. 9 Eliz. Dyer. 254. For this makes him not unfit to watch, though it make him scandalous, for which he ought to be punished.

Criminosus, 34 Hen. 6.39. A. For that is a word of a very large extent, and uncertain.

These are good causes of refusal in the Presenter.

Attainted, 15 Hen 5.17. B. Keble. viz. of Felony or Treason.

Excommunicated per 40 days 115 Hen. 7.7. B. Keble. and so stands excommunicated in con∣tempt of the Church. This Law is now altered by the taking away the Ecclesiastical jurisdiction in that point, and now is again revived.

Infant not of the Age of 14 years, Perkins. 4. A. For he shall not be judged of sufficient discre∣tion to present a fit person. Q. tamen.

Joynt Tenant or Tenant in common not a∣greeing, Nat. br. 34. V. concerning their present∣ing; for that is litigious.

The same Law is of one present alone, 14 Eliz. Dyer. 340. pl. 54. except it be by con∣sent.

A Master of a Colledge presented by the Col∣ledge, 14 Hen. 8.23. For that is like as when the Patron presents himself.

Utlawed, 15 Hen. 7.17. B. Keble. For he can have no Title.

A Corporation ought to present in writing, 14 Hen. 8.2. and not by parol, for they cannot ill speak at once, as they may by writing.

A Body natural may present by word, 14 Hen. ••.22.

The King may present by word, 19. Edw. 3. Quare impedit. 60. For he is but one person nume∣rical,

though he hath a political capacity, and speaks in the plural number.

It is no Bar to say that the other Writ was abe∣ted, if it were for form or false Latine, Coke ••. part 27. B. Portmans case. For that is not the fault of the Plaintiff, but of the Clark.

But that it was abated, because the 1 Plaintiff was made Knight, the Writ depending, this is 〈◊〉〈◊〉 good Bar, Coke 7. part. 27. B. Portmans case. For it was his own fault.

The Plaintiff counts of the presentment to the Advowson in Gross, and a Grant of it to him; the Defendant pleads it was appendant, he cannot traverse that it was not in gross, because by in∣tendment they are several Advowsons, Crooke. 19 Hen. 7.51. pl. 1. For one and the same Advowsee cannot be in gross, and also appendant.

An Arbitrement is a good Bar, Lib. intra. 498. C. s. 1.

A Confirmation or ratification by the King to the Incumbent is a good Bar against the King▪ 7 Hen. 4.13.14 Hen. 4.25.837. Lib. intra. 531. sect. 22. by way of estopple.

But this ought to be after Induction, 11 He••. 4.9. For before he shall not be said to be a per∣fect Incumbent, as to the King.

If the King be deceived, he may repeal the Confirmation, 31 Edw. 3. Quare impedit, 161 This by his prerogative; for the King ought 〈◊〉〈◊〉 be truly informed.

But then the repeal ought to be before Ind••∣ction or Installation, 25 Edw. 3.47. for after 〈◊〉〈◊〉 is too late.

If the King recover and confirm the Incum∣bent, this is no Bar to the next avoidance, because his Judgment cannot be executed, Nat. br. 34. F. 10. Edw. 3.389. pl. 32. 18 Edw. 3.57. pl. 87.

But if he Lease the Advowsons afterwards, ••uare who shall have them?

Where one brought a Quare impedit, and dis∣cootinued his Action, adjudged a good Bar, al∣though that the Writ was purchased afterwards within the 6 Months, Coke 7. part. 27. B. Port∣nans case. For it shall be intended he hath no right.

A Fine levied by the Ancestor of the Plaintiff of the Advowson, is a good Bar, Lib. intra. 532. C. sect. 3.

Warranty and Assets descended to the heir, is a good Bar against the Issue in Tail, 43. Edw. 3.24. pl. 31.

That he did not disturb, is a good bar, Lib. ••••tra. 503. C. sect. 2. 22 Edw. 3.17. pl. 71. For a good Issue may be taken upon it.

This may be pleaded to the grand Distress, 22 Edw. 3.17. pl. 71. as well as if he had appeared upon the first summons.

But 21 Hen. 6.45. A. 2 Edw. 3.32. pl. 7. It is held that it is no Bar, because no Title is made. 14. Edw. 3. Judgment, 158. and before Title made there needs no plea; yet Q. For he may, as it seems, admit a Title.

But if it be a good plea before Issue, yet after Issue joyned it is not, because it is a delay, and so a disturbance in it self in the eye of the Law,

3 Edw. 3.50. pl. 6.4. Edw. 3.97. pl. 31.17. Edw. 3.71.

But 18. Edw. 3.149. pl. 15. & fol. 359. 〈◊〉〈◊〉 è contra, after title made, this is no plea, 5 Hen. 4.20. Br. Quare impedit, 62. Q.

Against the King it is no Bar, because the patty there ought to make a title, 7 Hen. 4.32. pl. 18.

Non-suit after appearance in another Quare impedit before for the same advowson, is a good Bar: although the last be purchased within 6 Months, Coke. 7. part. 27. B. Portmans case. 21 Hen. 6.25.27. For that argues he had no right, and that his Suit was only vexatious.

And so if the former Writ were brought by the Plaintiff and another, and the Plantiff is non∣suit, 5 E. 157. pl. 10. For thereby he desists in his Claim.

No such Church in the same County, is no Bar, 8 Hen. 6.37. pl. 69. 9 Hen. 6.17. Q.

But 45 Edw. 3.36. pl. 2. è contra. Q.

Pardon of the King for alienation is no Bar, if the Church be void before the pardon, 27 Edw. 3.38. For then the pardon works not upon the precedent right.

Plentary a good Bar, though the Patron his no notice of the Avoidance; for this is to stop the Collation of the Ordinary, but not the Pre∣sentation of the Patron, Pasch. 39 Eliz. Com. B••••. Seriven against the Bishop of Lincolne.

Plenarty of a Frank Chappel is no Bar; for if he shall be put to his Quare impedit, then it shall be presentative afterwards, 22 Hen. 6.25. B. Which is mischievous to the Patron, in ma∣king

it subject to the visitation of the Ordinary.

The Church is said to be full against a common person by Institution, 22 Hen. 6.27. A. 14 Hen. 8 2. Brudenel. 12 Hen. 4.38. For by that the Clerk is approved, and Induction is but as it were giving of possession.

And against the King by Induction, 22 Hen. 6.27. B. which makes him a compleat Incumbent to all intents and purposes.

He that pleads plenarty, ought to say that it is full of his own presentment, and not of ano∣thers; for if the Defendant be disturbed, he shall not be punished, and if he hath title, he ought to shew it, 3 Hen. 6.20. Br. plenarty 6. 16 Edw. 4.11.8 Edw. 3. Statham.

He shall plead that he was in per 6 Months of his Presentment before the purchase of the Ad∣vowson by the Plantiff.

But if it be of a presentment of the predecessor of the Plaintiff, yet it is good, 8 Edw. 3. pre∣sentment 5.

The 6 Months shall be accounted according to the Kalendar, Coke 6. part. 61, 62. Catesbyes case; and not after 28 days to the Month; for that is the ancient account used in Law.

Who shall plead Plenarty, and who not.

Incumbent pleads Plenarty of himself, ex prae∣sentatione B. viz. the Plantiff. Coke. 6 part 48.2 Hen. 6.14. pl. 22. No. Lib. intra. 265. A. absque hoc that it was void; for the Incumbent is not able to plead it otherways, per 25 Edw. 3. cap. 7.

But 16 Edw. 4.11. pl. 6. Com. 501. A. Man∣wood è contra. Ergo Q.

Because he that pleads this, ought to say, that the Incumbent is in of his own presentation, 2 Rich. 2. Incumbent 4. Belknap. 46 Edw. 3.19. 18 Edw. 3. Quare Impedit 48. and not of ano∣thers.

But per 4 Edw. 4.13. The Incumbent pleads that the Plaintiff, or his predecessor presented him. Q. For it seems to be uncertain.

Parson imparsonee cannot plead plenarty, be∣cause that he cannot say, that he is in per six Months of his own presentment, 38 Hen. 6.20. B. 33 Hen. 6.12. pl. 27. Com. 501. A. Man∣wood. 39 Hen. 6.20.46. Assize. pl. 4.

A Stranger, or he that claims nothing in the Patronage, cannot plead Plenarty, 7 Hen. 4.34. per Fitz James. For it lies not in his mouth to say whether the Church be full or not.

Against whom Plenarty is no Plea.

Against the Lord that enters for Mortmain, it is no Plea; because the Lord hath liberty by the Law to enter at any time within the year, 21 Edw. 3.27. pl. 25. 29 Edw. 3.10. pl. 31. Thorpe. 47 Edw. 3.11. pl. 8.

But after the year it is a good plea, 25 Edw. 3.34. 26 Edw. 3. Quare Impedit. 163. For then he is in the condition of another Pe∣tron.

Quaere if it be good against the Lord by ••••••cheat, •••• Hen. 8.14. Brudenel. It seems

it is, for he shall be in no better condition then, than the Patron that died without Heir.

It is no plea against the King, 35 Hen. 6.26. A. 1 Edw. 3.17. pl. 9. 8 Edw. 3.304. pl. 55. 43 Edw. 3.14. pl. 8. For it is not a Plea in chief to determine the right, but only delatory, and the King shall not be delayed.

But against the Queen, Mother or Consort, it seems to be good, 18 Edw. 3.13. pl. 9. 44 Edw. 3. Br. Plenarty 4. For she is but a sub∣ject, and shall be in no better condition in the eye of the Law.

A good Bar to say, that the Plaintiff present∣ed his Clerk, and that he was inducted before the Writ purchased, 12 Hen. 4.11. pl. 21. vide Crooke. 12 Hen. 7.20. pl. 6. For then he could have no cause of Action.

A Recovery in another Quare Impedit, no Bar against the King, for he may make another Ti∣tle, Nat. br. 35. P. than was made before, and a better it may be.

A Recovery by by the Plaintiff against another in a Quare Impedit for the same Advowson, no Bar; for there might be two disturbers.

Recovery by a Stranger in another Quare Impe∣dit, no Bar, Crooke. 18 Hen. 7.49. pl. 4. For nothing concerns the present Plaintiff.

That the Plaintiff is a Recusant Convict, a good Bar; for the Presentment is given to the University, per 3 Jac. And therefore the Plain∣tiff can have no cause of Action.

Release of Actions Personals a good Bar, 22 Hen. 6.25, vel 27. Littleton. fol. 116. A.

30 Hen. 6. Bar. 59. For this is a mixt Action, and so it is personal in part.

So of Actions real, Litteton 116. A. 9 Hen. 6.57. Martin: For being next, it is also real as well as personal.

If a Presentment be alledged in the Ancestry of the Plaintiff, it is a good Bar to plead a Re∣lease and Quit claim of the Ancestry, pro fine 8 Edw. 2. Quare Impedit 166. For thereby the Plaintiffs cause of Action is extinct.

If there be more Plaintiffs in a Quare Impedit than one, the Release of one is no Bar, but for him only that released, Coke 5. part 97. B. Nor. thumberlands case. 30 Hen. 6. Bar. 59. Forte∣scue. For their Titles may be distinct and seve∣ral.

Judgment in a Quare Impedit.

1. When he shall have Judgment. 2. Of what things he shall have Judgment.

Upon default after apppearance, the Plaintiff shall have Judgment and Dammages, 2 Hen. 4.1. pl. 3. Nat. br. 38. S. For this is, as it were, the confession of the Plaintiffs Title.

But upon default after a continuance, Distress shall issue out only, 6 Rich. 2. viz. before appa∣rence make him to appear.

Upon Default at the grand Distress the Plain∣tiff shall have Judgment, Lib. intra. 507. A. sect. 1, 2, 3. For that is the last process to bring in the Defendant; and the Plaintiff can proceed no further upon mean process.

In a Quare Impedit against two, and one makes default after appearance, the Plaintiff shall have Judgment against him that makes default, Nat. br. 39. B. But not against the other; for anothers de∣fault shall not prejudice him.

If in a Quare Impedit against three, one makes default after apparance, and it is found against the Plaintiff for the others that appeared, who make a title, and it seems they shall have a Writ to the Bishop, 31 Hen. 6.15. pl. 5. Q.

One Defendant makes Title by himself, and o∣thers make default, the Judgment shall be to have a Writ to the Bishop for him that makes Title; but this is not before the Plaintiff have counted, Nat. br. 38. J. 10 Hen. 6.4. pl. 13. For before that the cause of Action doth not appear.

Upon the Non-suit of the Plaintiff, the Defen∣dant shall have a Writ to the Bishop, but not be∣fore Title made, Nat. br. 38. K. 2 Hen. 5.6. pl. 28. 19 Edw. 4.9. pl. 10. 6 Edw. 3.23. Collu∣sion 5. 14 Hen. 4.11. That it may appear he hath a colourable right at the least.

Unless the Non-suit be after a Bar pleaded, 33 Hen. 6.1. pl. 2. & fol. 55. pl. 48. against the Defendants Title.

Three sue a Quare Impedit, and two are non∣suited, and one of the Plaintiffs was also one of the Defendants, therefore he cannot make Title, ideo quaere, if they shall not have a Writ to the Bi∣shop without Title made, 11 Hen. 6.8. pl. 13. Q.

A. sued divers Writs of Quare Impedit against B, of the same Church, and is non suited in all exceptone, the Defendant shall not have a Writ

to the Bishop until that be determined, Nat. br. 38. R. For it may be the Plaintiff may clear his Title by that.

The Defendant makes Title to himself and another, the Plaintiff is non-suited, the Defen∣dant shall have a Writ to the Bishop only, 13 Edw. 3. br. Epise. 25. For his Title is a Bar to the Plaintiff which is not opposed.

The Sheriff returns a tardè, &c. the Plaintiff makes default, he shall be non-suited; Q. but the Defendant shall not have a Writ to the Bishop, because the Writ was not served, 2 Hen. 5.3. pl. 14. Nat. br. 38. O. 2 Hen. 5.6. nor the o∣ther Non-suited, as it seems, because the Writ was not duly executed.

If an Infant be non-suited, the Defendant shall have a Writ to the Bishop, 2 Mariae Dyer. 104. pl. 13. to avoid a lapse, and that the Church may speedily be provided for.

A. brought a Quare Impedit against B, C and D, and is non-suited, B dies, C and D shall not have execution alone, 11 Edw. 3. br. Episcopo 55. because the Action was joyntly brought against all.

If one of the Co-parceners who bring a Quare Impedit, be non-suited, yet the other may sue, and the Defendant shall not have a Writ to the Bishop upon this Non-suit, 38 Edw. 3.35. br. Episc. 12. because they have several Inheritances, and the default of one shall not bind another.

The Plaintiff discontinued his Suit, the De∣fendant shall have Judgment to have a Writ to the Bishop, Coke 7. part. 27. B. For his disconti∣nuance concludes he had no cause of Action.

A. brought a Quare Impedit against B, and sued a Ne admittas, and then they compounded to present by turn, there shall be a special Writ out of the Chancery to the Bishop, to admit the Clerk that ought first to be admitted. For a spe∣cial Cause may have a special Writ, and varying from the usual form.

In a Quare Impedit the Defendant disclaims in the Advowson, the Plaintiff shall have Judgment, and a Writ to the Bishop, 6 Edw. 3.7. Error 78. For by the Disclaimer he acknowledgeth he hath no Title.

Where a Writ abates for form or false Latine, there shall not be Judgment for the Defendant to have a Writ to the Bishop, Nat. br. 38. H. 14 Hen. 4.11. 13 Hen. 4.7. For the Title is not determined, but only the Plaintiff is delayed.

The Defendant makes default, the Incumbent abates the Writ by plea, the Defendant shall not have a Writ to the Bishop, because he made de∣fault, Nat. br. 38. H, and so is not rectus in Cu∣ria.

If the Plaintiff being a Prebend, be made a Bishop in Dublin, this shall abate the Writ, per Wilby, 24 Edw. 3.26. pl. 21. Q. how it shall be taken notice of here.

If the Writ abates for Misnosmer, or other non-sufficiency in it, the Defendant shall not have a Writ to the Bishop, Nat. br. 38. M. 31 Hen. 6.15. For the right is not determined.

If a Quare Impedit is brought in Com. M. and the Count is of a Church in Com. O, the Writ shall abate, but the Defendant shall not

have a Writ to the Bishop, 21 Rich. 2.29. for the former reason.

It was found by verdict that the Metropolitan collated where the Ordinary ought to have done it, when the year is passed, the Plaintiff shall have a Writ to the Bishop, Nat. br. 38. P. Q.

In a Quare Impedit between A and B, if the Title appear for the King, Judgment shall be given for him, Nat. br. 38. E. notwithstanding he is not party to the Suit, that is, by his Pre∣rogative. All the Judges are the Kings Counsel, and ought to give Judgment for him, where his Right appears, although he sue not for it.

The Writ to the Bishop, to whom it shall be directed.

If a man recover against another as well as the Bishop, he ought to have a Writ to the Bishop of the Diocess, Nat. br. 38. C. For a Bishop is but a Minister to admit the party.

If the Writ be against the Bishop, although he claim but as Ordinary, yet the Plaintiff shall have a Writ to the Bishop, 8 Hen. 4.22. Lib. intra. 521. For he claims no right, nor doth any thing by executing the Writ in prejudice of himself.

If a man recover against the Bishop, he shall have a Writ to the Bishop or Metopolitan, Nat. br. 38. B. and Q. 18 Eliz. Dyer. 353. pl. 30. 38 Edw. 3.12. B. at the election of the party, as it seems.

If it be once to the Metropolitan, he shall never have it to an inferior Bishop afterwards, ibidem,

for it is not usual in Law to descend from a higher authority to a lower.

Or to the Vicar general, if the Bishop be out of the Realm, Nat. br. 38. Q. For the Vicar general ••an Officer under the Archbishop.

Or to the Gardein of the Spiritualties of the ••••ch-bishop, 7 Hen. 4.36. for the same reason, 〈◊〉〈◊〉 it seems.

If there be no Bishop of the Diocess, then to ••••e Metropolitan; if no Metropolitan, then to ••••e Gardein of the Spiritualties, but if before the accution the Archbishop be made, quaere if the power of the Gardein be not determined, 18 Eliz. Dyer. 350. pl. 19. It seems it is.

If it be against the Arch-bishop of York, the Writ shall be to the Metropolitan, 15 Eliz. Dyer. 328. pl. 7. viz. of all England, viz. the Arch∣bishop of Canterbury.

The King recovers a Prebendary or Sub-Dea∣••••••ry, or other Dignity against the Bishop, and ••••••es it by Letters Patents to A, yet A shall ••uve a Writ to the Bishop to be admitted to the ••ings right. And if he die before induction, ••••d the, King grants this to B, he shall have a Writ out of the Chancery, and a Writ to the Bi∣••hop, Nat. br. 38. D. It seems the Writ shall be pecial.

The King recovers a Prebendary, and hath 〈◊〉〈◊〉 Writ to two Bishops, because the Prebendary ••as in one Diocess, and the Church to which ••••e Prebendary belongs, is in another Diocess, 14 Edw. 3.37. pl. 56. and so it concerns both ••he Bishops.

If a man recover a Chappel donative, he shall have a Writ to the Sheriff, Nat. br. 48.8. For it is in the nature of a Lay Fee, and lies not wish∣in the jurisdiction of the Ordinary.

Process in a Writ to the Bishop.

The Process is alias, plures, Attachment, or a Writ de quare non admisit, Nat. br. 47. C.

Of what things a man shall have Judgment.

1. A Writ to the Bishop, and no dammages. Coke 6. part. 51. A. Boswels Case. At the Common Law were no dammages in a Quare Impedit. But by the Statute dammages are given, as the Statute following mentions.

Statute Westm. 2. cap. 5. is, Si tempus semestre transier it per impedimentum alicujus, ita quod Epi∣scopus ad Ecclesiam conferat, & verus Patron 〈◊〉〈◊〉 ea vice praesentationem amittat, adjudicentur da••••∣pna ad valorem medietatis Ecclesiae pro duob•••• annis, & si non transierit sed disrationetur praesen∣tatio infra tempus praedictum tunc adjudicentur da••••∣pna ad valorem medietatis Ecclesiae per unum a••∣num.

The King is not within this Statute to have dammages, for at the Common Law the King was not in danger to lose his presentation per ple∣narty, Coke 6. part. 51. A. Boswels case. 3 He••. 6. Dammges 17. 34 Hen. 6.51. 14 Edw. 3. Quare Impedit 54. 33 Edw. 3. Br. 916. vide 7 Edw. 6. Dyer. 236. pl. 28. And the Statute was made only for that intent▪

If it is found for the Plaintiff, and that the Church is full, the Plaintiff may have a Writ to the Bishop, but then he shall recover no dam∣mages, 24 Edw. 3.35. pl. 42, & 75. pl. 97. for he could not be damnified by reason of the ple∣••••rty.

It is found that the Ordinary presented before ••is time, the Plaintiff releases dammages, and had 〈◊〉〈◊〉 Writ to the Bishop, 11 Hen. 4.79. pl. 22. for the Ordinary had no right to present.

The Ordinary claims nothing but as Ordinary, the Plaintiff had Judgment against him as Ordi∣••••ty, and the Disturber and his Clerk dies, the Plaintiff shall have execution, but it seems no dammages, Crooke 17 Hen. 7.43. pl. 9. Quaere ••••••en, for it seems not reasonable that he should be without remedy.

The Defendant comes the first day, and con∣fesseth the Action, there shall be a Writ to the Bishop, but no dammages, 4 Edw. 2. Dammages 9. 5 Edw. 3.133. pl. 13. 5 Edw. 3.139. pl. 44. in re∣gard of the smalness of them, for de minimis 〈◊〉〈◊〉 curat Lex.

In a Quare Impedit against the Incumbent, the King revokes his presentation, the Plaintiff shall have no dammages against the Incumbent, 44 Edw. 3.35. B. because he came in upon the Kings presentation, and is now ousted by him.

The Plaintiff shall not have dammages against the Incumbent, if he pleads not, or is not proved 〈◊〉〈◊〉 Disturber, 45 Edw. 3. Dammages 39. but shall recover only the presentation, 5 Edw. 3.13. but by his pleading he is a Disturber, and dammages are recoverable for the disturbance.

A Writ to the Bishop, and single dammages, 17 Edw. 3.5. pl. 12. 24 Edw. 3.37. pl. 54.26 Edw. 3.75. pl. 25.

A sues B and C, and it is found that B only had right, B shall have dammages against A and C, 45 Edw. 3.14. pl. 12. & br. Episcopo, for they are both Disturbers as to B.

In a Quare Impedit against the Ordinary and B, the Ordinary confesses the Action, and it is found against B, and that the Church is full of the pre∣sentment of B, the Plaintiff shall have a Writ to the Bishop, and single dammages, or double dam∣mages, and no Writ to the Bishop at his election, 39 Edw. 3.15. but shall not have both, 5 Edw. 3.150. pl. 10. for this would be double satisfaction for one tort.

The Defendant confesses the Action, the Plain∣tiff shews that the six Months are past, and had a Writ to the Bishop and dammages, 21 Edw. 3.55. pl. 8. 20 Edw. 3. Collusion 34. 6 Edw. 6. Dyer 76. pl. 35. by the Statute.

The Plaintiff and the Ordinary are at issue upon the ability of the Incumbent, the Ordinary admits him, the Plaintiff shall have a Writ to the Bishop, and single dammages; for the ad∣mittance proves him able, 40 Edw. 3.25. pl. 21. and consequently the Ordinary a Disturber, and to pay dammages.

A Writ to the Bishop to admit the parties Clerk, and a Writ to the Sheriff to enquire of dammages, 19 Edw. 3. Quare Impedit 156. 24 Edw. 3.37. Lib. Intr. 507. C. Sect. 6, 7, 8. sustained by the distur∣bance.

It was found that the Metropolitan collated be∣fore his time, the Plaintiff shall have a Writ to the Bishop, but then he shall have but single dammages, 11 Hen. 4.80. Nat. br. 38. P. vid. le Stat.

The Bishop grants proximam praesentationem to B, and dies, the Church voids, the Successor col∣lates, B brings his Quare Impedit within six Months, two years pass, the Plaintiff had judg∣ment, and upon his prayer had a Writ to remove the Incumbent, and single dammages, and a Writ to the Bishop or Metropolitan at his election, 2 & 3 Mariae, Eliz. Dyer 194. pl. 33. to admit his Clerk.

Quare Impedit against the Ordinary who Collates, and pleads to the Plaintiff that the six months are passed, the Plaintiff recovers the presentation and single dammages; for where the Ordinary claims as Ordinary where he cannot maintain the right, he cannot collate as Ordinary for the time past, 5 Edw. 3.150. pl. 19. Coke 5. part. 58. B. 30 Edw. 3.15. pl. 4.

The same Law is upon a recovery against ano∣ther man, if the Plaintiff will at his peril have a Writ to the Bishop, 6 Edw. 6. Dyer 77. pl. 35. 11 Hen. 4.79. pl. 22.

Quare Impedit against the Bishop of L. the Me∣tropolitan, and against G his Clerk, they all three make default at the Grand distress, and a Writ of enquiry of the points in the Writ, and dammages was awarded, and thereupon found that the Church was void two years, and that the Me∣tropolitan collated G; and Judgment was that the Plaintiff shall have a Writ to the Bishop, and

single dammages; but because the Church void so long, and the Defendants in misericordia, 7 Eliz. Dyer 241. pl. 48.

A Writ to the Bishop, and double dammages.

Quare Impedit against the Ordinary and B, the six Months pass, the Plaintiff shall have double dammages, although the Ordinary did not col∣late, because he had jus conferendi, and also a Writ to the Bishop, 43 Edw. 3.10. pl. 33.

The Plaintiff recovers double dammages, be∣cause the six Months were passed; and also a Writ to the Bishop, and his Clerk instituted, because the Bishop did not collate; but this was not done by the party, 8 Edw. 3.280. pl. 9. Q.

A man shall recover double dammages, al∣though he recover all before the six Months pass, 13 Edw. 4.3. Littleton. by the Stat. of W. 2.

Single dammages, and no Writ to the Bishop.

Before the return of the Writ to enquire of dammages, the six Months pass, the Bishop col∣lates; yet but single dammages, 24 Edw. 3.35. pl. 13. 27 Edw. 3. Dammages 106.

But the reason it seems is, because of the for∣mer Judgment, that he shall have a Writ to the Bishop; and this being of Record shall stop him from double dammages, for he is to have his Clerk thereby admitted.

22 Hen. 6.28. Dammages, but no Writ to the Bishop. Quare Impedit against a Parson impar∣sonee, and found for the Defendant, he shall

have dammages, but no Writ to the Bishop, Nat. br. 38. L. 26 Hen. 6. bre Episcopo 6. for such Writ would be to no purpose.

Double dammages, and no Writ to the Bishop.

Quare Impedit against the Ordinary and B, the Ordinary confesseth the Action, and it is found against B, and that the Church is full of the pre∣sentment of B, the Plaintiff shall have double dammages, but no Writ to the Bishop; or shall have single dammages, and a Writ to the Bishop at his election, 39 Edw. 3.15. but not both; for the double dammages are in recompence of his presentation.

The Ordinary intitles himself by Lapse, the Patron and Incumbent confess the Action, the Plaintiff shall have double dammages against the Patron and Incumbent, 34 Hen. 6.41. 34 Hen. 6.39. because the Church is full.

Quare Impedit against the Patron and Incum∣bent, they traverse the Title, the six Months pass, the Plaintiff, if he recovers, shall have dou∣ble dammages against both, 46 Edw. 3.15. pl. 5. Vid. the Stat.

Two Writs to the Bishop.

The Defendant in a Quare Impedit brought a Darrein presentment against the Plaintiff, the Plaintiff is nonsuited in the Quare Impedit▪ the Defendant recovers in the Darrein presentment, the Defendant shall have Judgment to have two Writs to the Bishop, but shall not have dam∣mages

twice, Nat. br. 39. D. viz. upon the Plain∣tiffs nonsuit one, and upon his own recovery ano∣ther, for that would be double amends.

In what Court, and what Judges have power to award a Writ to the Bishop.

Justices of Nisi prius have power, per Westm. 2. cap. 30, & 40. 14 Edw. 3. cap. 16. 9 Eliz. Dyer 260. pl. 21. 6 Edw. 6.76. pl. 34.

The Lords, it seems, of Mannors, Judges in Wales, have not power, 36 Hen. 6. B. Fortes••ue, 35 Hen. 6.30. pl. 35. 3 Edw. 3.63. pl. 35. 8. Edw. 3.319. pl. 15. 24 Edw. 3.33. pl. 26. Regist. orig. 31. A. for the Bishops are not tied to take notice of their Writs.

Lord in ancient Demesn hath no power to a∣ward a Writ to the Bishop, 7 Hen. 6.35. for this is an inferiour Court circumscribed within its own Jurisdiction.

The Five Ports cannot award a Writ to the Bi∣shop, 21 Hen. 7.88. pl. 7. Crooke; for these are particular Franchises within themselves.

Ne Admittas.

What Persin shall have it.

The Plaintiff in a Quare Impedit, or Darrein Presentment, shall have it, Nat. br. 35 F.

So the Defendant shall have it, Nat. br. 37. H.

In what Cases it lies.

When a Quare Impedit or Darrein Presentment is depending, and the Plaintiff or Defendant sup∣poseth that the Bishop will admit the Clerk of the other, then a Ne admittas lies, Nat. br. 37. F.

Regist. orig. 31. A. 21. Hen. 44. Newton, Vet. Nat. br. 24. B. to hinder the Bishop from admitting any Clerk till the right be determined.

If one of the Writs be not depending, then it Its not, Nat. br. 37. H. viz. a Quare Impedit or Darrein Presentment, for this Writ supposeth a Title in question, which must be by one of those Writs.

For if the right of Advowson is depending, it lies not, because the Presentation is not to be recovered in it, Nat. br•••• 48. Q. and so the admit∣tance of a Clerk is not in question.

But note, that this lies before any Certificate made, that a Quare Impedit or Darrein Present∣nent is depending, Nat. br. 37. H. for depending of the Writs rests not upon the Certificate.

Yet the party grieved by the Ne admittas shall have a Writ to the Chief Justice, to certifie if any Writ be depending; and if he certifie none, then a Supersedeas shall be awarded, Nat. br. 37. H. to supersede the Ne admittas.

Note, that this Writ does not hinder the Or∣dinary, but that he may present by Lapse, unless he be party, Nat. br. 48. L. Vet. Nat. br. 24, & 25. ••iz. party to the Suit, for else it concerns him not.

Within what time this ought to be brought.

Within six Months, and not after by reason of Lapse.

Locum habet infra tempus semestre, & non p••stea, quia Diocesanus illam conferat per Lapsum temporis ad sex menses, quia Diocesanus il••ud spectaliter ••t indu••tum, Regist. orig. 37. F.

Yet for the King it always keeps place, Regist. orig. 31. A. Nat. br. 37. F, & G. vide Br. for nullum tempus occurrit Regi, the King is not tied to circumstances of time or place, &c.

The Writ.

The Writ shall be alone, although the Bishop be party, as where not; Tamen olim fuit, ne con∣feratis alicui Ecclesiam de N. quae vacat, Regist. orig. 31. A, B. Nat. 38. A.

The Process.

Is Prohibition, Attachment, and Distress, Nat. br. 24, & 25.

Quare non admisit.

Out of what Court this issueth.

It issueth out of the Com. Bau. because it issu∣eth out of the Rolls of the Court, Regist. orig. 32. A. Vet. Nat. br. 25. B. 12 Edw. 3. Quare non ad∣misit 6.

For this is a Judicial Writ, Vet. Nat. br. 25. B. Regist. orig. 32. A. 12 Edw. 3. Quare non admisit 6. & per Nat. br. 47. C. grounded upon a Record of Court.

This may issue out of the Chancery in the Va∣cation also; for in the Vacation it cannot issue out of the Common Pleas.

If the King recover in Com. Ban. in Quare Impedit, he may have this Writ in Ban. Regis, Nat.

br. 47. D. for this Writ is but to have the effect of his Suit, and he may seek for his right in any of his Courts.

What Person shall have it.

Every one that recovers, if the Bishop will not admit, his Clerk shall have it, Nat. br. 47. C. Vet. Nat. br. 25. B. or else his Suit would be but fruit∣less, if it were not compulsory.

Against whom it lies.

It shall be brought against the Bishop, although the Vicar general made the refusal, Vet. Nat. br. 26. A. Nat. br. 47. J. 13 Edw. 36. Quare non admisit 4. for the Law takes notice of him only as a more publick person concerned.

It was brought against the Gardein of the Spi∣ritualties, upon refusal of the Bishop which is dead, Vet. Nat. br. 26. A. Nat. br. 47. J. and well, for he is now in the room of the Bishop.

But it was denied against the Archbishops Gar∣dein of the Spiritualties, vivente Archiepiscopo, at videtur.

And yet quaere per 17 Edw. 3.27. pl. 9. if the Metropolitan of Common right be not Gardein of the Spiritualties. It seems not since Hen. 8. come.

It was maintained against the Official of the Bishop, Nat. br. 47. N. who used, as it seems, to admit Clerks presented.

In what Cases this lies.

When a man recovers his presentation, and the Bishop will not admit his Clerk, the party shall have this Writ, Vet. Nat. br. 25. B. Nat. br. 47. C.

And this is although the Bishop return cause, why he will not admit the Clerk. 9 Eliz. Dyer 260. pl. 21. Coke 6. part. 52. A. Boswels case; for he must take notice of the Judgments given at the Law in such cases.

But if the Record be removed by a Writ of Error, it lies not till Judgment be affirmed, Nat. br. 47. E. for till then it doth not appear the Judgment was duly given, and this Writ doth suppose right Judgment given.

The Bishop refuses, and afterward admits him, yet the party it seems shall have this Writ, Nat. br. 47. L. Q. for it seems to little purpose, except it be to recover dammages for not admitting at first.

The Writ.

1. It ought to rehearse the Recovery in the Quare Impedit, Nat. br. 47. C. because that is the ground of the Writ.

2. It ought to be brought in the County where the refusal was, because he shall recover nothing but dammages, Vet. Nat. 25. B. Nat. 47. F. Coke 7. part. 3. A. Bulwers case, 38 Hen. 6 14 & 15.39 Edw. 3.2. pl. 5. 29 Hen. 8. Dyer 40. pl. 69. and the dammages can be best enquired and known there.

The Count.

The writ was against the Bishop, and counted, though the Vicar general refused, and yet good, 〈◊〉〈◊〉 Edw. 3. Quare non admisit 4. Vet. Nat. br. 26. 〈◊〉〈◊〉 rid. antea, why so.

The King counted not upon what original or ••••t Title he recovered, and yet good, 20 Edw. 3. ••••e non admisit 10. for he is not bound to be 〈◊〉〈◊〉 punctual in pleading as a Common person, for ••••••••ceth if it be good in the substance.

The Barr.

That he admitted him, and made Letters to 〈◊〉〈◊〉 Archdeacon to induct him, a good barr, 38 〈◊〉〈◊〉 6.14. Nat. br. 47. H. for this doth disaffirm 〈◊〉〈◊〉 Writ.

That the Bishop collated by Lapse is a good 〈◊〉〈◊〉, Nat. br. 47. M. for by that the Plaintiffs Ti∣••••s destroyed hac vice.

Or that it was litigious by the presentment of ••anger, 9 Edw. 3. Quare non admisit 12. 34 〈◊〉〈◊〉 6. Quare Impedit 89. 34 Hen. 6.41. pl. 10. 〈◊〉〈◊〉 also the Ordinary could not know who was to 〈◊〉〈◊〉 admitted.

But if A and B contend, by reason of which 〈◊〉〈◊〉 Bishop collates by Lapse, and after the King ••overs in a Quare Impedit, this is no barr in a ••ure non admisit brought by the King, 23 Edw. 〈◊〉〈◊〉 12. Quare non admisit 11. for the Kings Title ••••dgne to the collating.

Excommunication cannot be pleaded in the Plaintiff, because the Writ supposeth a contemp•• in the Ordinary, in that the Plaintiff hath present∣ed his Clerk in the Writ named after Judgment given for him, which supposeth him not Excom∣municated; but a good plea, that the Incumbe•••• did not make request after Judgment, 21 Hen. 7.71. pl. 14. Crooke; for without request the Or∣dinary is not bound to take notice.

No such Record is a good plea, Coke 8. part. Dreuries case; viz. as he pretends he hath Judg∣ment upon.

A good barr, that the Church was full before the Recovery of one not named in the Recovery, Nat. 47. K. and so the Ordinary had no cause to admit his Clerk.

The Bishop returned that the Advowson is seised into the hands of the King, by reason of Wardship, and is so full of the Kings presentment; this is good, 9 Eliz. Dyer. 260. pl. 21. tame•• Coke 6. part. 52. A. Boswels case, è contra. Q.

The Judgment.

The Judgment is but to have dammages, Nat. br. 47. G.

Quare Incumbravit.

In what Court it shall be brought.

It is a Writ Original, and therefore it ought to issue out of the Chancery, Nat. br. 48. G. as all O∣riginals do; for the Chancery is Officina brevium.

But it shall be brought in Com. Ban. because it a Common plea, Vet. Nat. br. 26. B. viz. made ••••rnable there.

And although the Record be removed out of 〈◊〉〈◊〉 Common pleas, Nat. br. 48. F. because it is an ••••••ginal Writ, per Shard 17 Edw. 3.55. A.

But the King may bring this in Ban. Regis, al∣••••••gh the Record be in Com. Ban. But a Com∣•••••• person shall not. Nat. br. 48. F. 17 Edw. 3.50. 〈◊〉〈◊〉 ••1. for the King may sue in what Court he ••••••seth, though a Subject in some cases is con∣••••ed.

What person shall have it.

The Plaintiff or Defendant in a Quare Impedit, 〈◊〉〈◊〉 Darrein Presentment, that recovers; for by the ••ecovery it appears they have Title.

Against whom it lies.

It lies against the Bishop, Vet. Nat. br. A.

In what Cases this lies not.

It lies not in right of Advowson, Nat. br. 48. Q. 〈◊〉〈◊〉 that concerns not the presentation.

It lies not unless a Ne Admittas be first directed 〈◊〉〈◊〉 the Bishop, a Quare Impedit depending, Vet. ••••t. br. 26. B. Nat. br. 48. H. for by that he is to ••ake notice of the Suit, which otherwise he is not ••••und to.

Yet it was maintained, although no other Writ ••as first attained, Vet. Nat. br. 27. A. Q.

It lies not, unless the party hath recovered be∣fore by Judgment of the Court, Nat. br. 48. 〈◊〉〈◊〉 17 Edw. 3. 50. pl. 21. and so cleared his Ti∣tle.

The Incumbring by his Collation ought to b•• alledged to be within six Months, Nat. br. 48. 〈◊〉〈◊〉 for after the six Months there can be no incum∣brance in respect of the Lapse.

And if he admit the Clerk of the other per∣son after the six Months, which was presente•• before the Action, the Writ lies, Nat. br. 48. L. Quaere.

The Writ is Original and issueth out of the Chancery only, Nat. br. 48. G. 17 Edw. 3.74. B. vide the Writ Nat. br. 48. O. Regist. orig. 32 A.

It ought to be brought in the County where the Church is, because the Clerk of the Bishop shall by this be removed, and the Clerk of the other admitted, Coke 7. part. 3. A. Bulwers case, Nat. br. 48. D. 38 Hen. 6.14. pl. 32 and the wrong is done in the County where the Church is, and that County may have best conusance of the cause.

It ought to make mention of the Recovery, Nat. br. 48. K. Regist. orig. 32. B. But 18 Edw. 3.17. by Wilby he ought not to mention it. Quaere.

The Writ needs not mention before wha•• Justices the Recovery was, and yet good; for the Recovery is the substance, and the Court is not ma∣terial, quaere tamen, 18 Edw. 3.17. pl. 19. 17 Edw. 3.74. pl. 109. the Writ; 1. It needs not men∣tion where the Court was, when the Recovery

••ad, because it is an Original Writ, and the Court is fixt. 2. Nor that the Bishop Incumbred it within the six Months, for it shall be intended so. 3. It is good, although it bore date within the six Months, for it shall be maintained after the Re∣covery, and the party shall have it. 4. It lies in C••n. Ba••. although that the Record be removed, because it is an Original Writ. vid. antea.

The Count.

The Count ought to mention the Recovery, Nat. br. 48. K. because it is the ground of the A∣ction.

It needs not to recite all the Record of the Recovery, although that it was recovered by Darrein Presentment, but the substance of it, 17 Edw. 3.55. pl. 34.

The Count mentions, that the Bishop did In∣cumber (the Writ depending) the Church, yet good, 17 Edw. 3.74. pl. 109.

If one Writ be abated, the Plaintiff in another Writ may vary from the former Count, Nat. br. 48. M. for he now begins de novo, and is as if he had not counted before.

The Process.

It is Summons, Attachment, and Distress, Vet. Nat. br. 26. B.

The Barr.

The Church was Litigious, and that he did Collate by Lapse, 34 Hen. 6.38. Quare Impedit, 89. a good barr. antea.

No such Record a good barr, Vet. Nat. br. 26. B. antea.

Error brought, and the Record removed in Ban. Regis, no barr, Vet. Nat. br. 26. B. Q.

Did not Incumber after the prohibition of the Court to him delivered, is a good barr, Nat. br. 48. M. for before he was not bound to take notice of the Suit.

The Judgment.

It is to have his Presentment and his Dam∣mages, Nat. br. 48. H. 38. Hen. 6.14. Coke 7. part. 3. A. Bulwers case, 21 Edw. 3.3. pl. 7.

If the Plaintiff be Nonsuited, yet it is not to him peremptory, Nat. br. 48. M. but he may com∣mence a new Action; for he may be Nonfuit, and yet have a good Title.

Notes

• Quid.
• Note.
• Cestui que use.
• Chancel∣lor.
• Defendant
• Half-blood
• Corpora∣tion. Bishop. Ratione Patronatus.
• In what case Lapse cannot in∣curr with∣out notice.
• Parson.
• Prebenda∣ry.
• Dean and Chapter.
• Aggregate
• Corpora∣tion mixt.
• In his own right.
• Creation.
• Ratione temporali∣um.
• Outlawry.
• Note.
• Disseisee.
• Executor.
• Enfant.
• Feme Covert.
• Feoffee or Grantee, 1. of the King; 2. of another.
• Daughter.
• Founder.
• Joynt∣tenants.
• Nomina∣tor to a Living.
• Parceners.
• Procurator.
• Recoveter.
• Reversio∣ner.
• Queen.
• Lord.
• Tenant in Tail.
• In Dower.
• For life.
• For years.
• In com∣mon.
• Traverse.
• Note.
• Patron sole.
• Incum∣bent sole.
• Note.
• Plaintiff.
• Sheriff.
• Disturber.
• Chappel.
• Deanary.
• Domus S. Martini. Hospital.
• De Medie∣tate Advo∣cationis.
• Parsonage.
• Prebend.
• Subdea∣conry.
• Vicarage.
• Presentati∣on in his own name.
• Presentati∣on in him, by which he claims.
• Plea by the Ordinary the Church Litigious.
• What shall be accoun∣ted Litigi∣ous.
• Refusing the Clerk for default in the pre∣sentee which is.
• Note.
• Presenter which is.
• Presenta∣tion.
• Abate∣ment.
• Appen∣dant.
• Arbitre∣ment.
• Confirma∣tion.
• Disconti∣nuance.
• Fine.
• Warranty
• No Di∣sturber.
• Non-suit.
• No such Church.
• Pardon.
• Plentary.
• Incum∣bent.
• Presenta∣tion.
• Recovery.
• Recusancy
• Release.
• Upon de∣fault.
• Non-suit.
• Disconti∣nuance.
• Composi∣tion.
• Disclaimer
• Abate∣ment.
• Verdict.
• Single ••••mmages.
• Note.
• Note.