The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCLI. Specot's Case. Mich. 30 Eliz. In the Common Pleas.

* 1.1HUmphry Specot, and Elizabeth his Wife, brought a Quare Impedit against the Bishop of Exceter, &c. of the Church of Tedcole in the County of Devon: The Bishop pleaded, That the Plaintiffs presented to him one John Holmes, quem super Ex∣aminationem invenit Scismaticum inveterat', and so non habilem to be instituted, vel ad acceptandum aliquod Beneficium cum Cura A∣nimarum, for which he refused him, and of such Refusal gave notice to the Plaintiffs, and of the cause of it; upon which the Plaintiffs

did demur in Law. It was argued by Fleetwood, Serjeant, for the Bishop, but to little purpose, therefore I will report but cer∣tain passages of his Argument: He conceived, That that general Pleading of Schismaticus inveteratus was good enough; as, if the Bishop certifieth Bastardy, It is sufficient to say, Bastardus, sive Spurius, without other Circumstances, as to say, On the body of such a Woman begotten: Lollard derivatur à Lollio. i. e. Angli∣ce, Tares. Sampson was Dean of Christ Church in Oxford, and was convented before the Ordinary for Schism, because he would not use a Surplice; and for that he was condemned for a Schis∣matick, and deprived of his Deanery, in the time of the Queen that now is. Shuttleworth, Serjeant, for the Plaintiffs, That the Bishop in his Plea ought to have shewed specially, how and in what point the Presentee of the Plaintiffs was Schismaticus: There are divers manners of Schisms. 1. In Doctrine. 2. In man∣ners; and of each kind there are many, &c. And therefore, for doubt of enveigling the Metropolitan, who is to try that Issue, the Defendant ought to have shewed the Schism in certain, in which the Metropolitan was to examine the Clerk readily. See 38 E. 3. 2. the Case of the Countess of Arundel, where in a Quare Im∣pedit the Ordinary pleaded, That the Presentee was Criminosus & Perjurus, and shewed the Cause in what and when he was Per∣jured. And although this Issue is to be tryed by the Metropoli∣tan, yet it ought to be formally pleaded in the Temporal Court, and with certainty: As where a Divorce is pleaded, It is not suf∣ficient to say, That a Divorce was had; but the party ought to shew for what cause, and before what Iudge the Divorce was had, which see 18 E. 4. 29. where the Divorce is specially pleaded for cause of Consanguinity; for by one Divorce the Issues are bastar∣dized, by others not. See as to the Pleading of a Divorce 11 H. 7. 9. Profession, although it be a Spiritual thing, yet the gene∣ral Pleading of it, is not good; but he who pleads it, ought to shew, of what Order, and under whose Obedience, 40 E. 3. 37. which see the Book of Entries 444. Intravit Religionem, viz. in Do∣mo Carmelitarum de London, & ibi fuit professus sub Obedientia R. Prioris Domus illius. So Deprivation shall not be generally pleaded, which see Book of Entries 458. Ecclesia vacavit per Priva∣tionem, &c. per J.S. Legum Doctor. Delegat. &c. so of Resig∣nation, 7 E. 4. 16. Resignavit in manus I.L. Bishop of London, Ordinary of the said place. Now, It is to see, If by this gene∣ral Demurrer the matter in Fact be confessed, scil. That the Pre∣sentee was Schismaticus inveteratus; and as to that, the Rule is, That all matters in Fait, which are well and duly pleaded, by a general Demurrer be confessed; but that which is not well al∣ledged, by no Demurrer shall be holden confessed: Which Learn∣ing see in the Commentaries, in Partridge and Stranges Case. And here for as much as Scismaticus is not not well pleaded, for the cause aforesaid, it shall not be holden confessed. Now, It is to see,

If upon the Statute of 27 Eliz. this defect be helped; and he con∣ceived it was not, for here the defect is in matter, and not in form: As if, in Trespass of his Close breaking, the Defendant justifies by a Lease for years, and doth not shew the place where the Lease was made, and the Plaintiff demurrs generally upon it; the said defect is not helped by the said Statute, for that it is Matter. So in a Formedon in Discender, The Defendant pleads a War∣ranty with Assets, without shewing the place where the Assets is, and the Demandant demurrs upon it generally, the same de∣fect is not helped by the said Statute: See a good Case ad∣judged upon the Statute, Mich. 28 & 29 Eliz. between Henly and Broad. Periam and Windham, Iustices, conceived, That the Plea of the Bishop is not good, because it is not shewed in what point the Presentee was Schismaticus; for by this genral Plead∣ing, if it should be allowed, the Metropolitan, to whom the Tryal of the Cause belongeth, shall be driven to peruse all Schisms, in the Examination of the Presentee, which is a thing infinite and inconvenient. Rhodes, and the Lord Anderson, to the Contrary: And Rhodes vouched an Old Book, 30 E. 1. out of a written Book of the Lord Catline. In a Quare non admisit, the Defendant plead∣ed, That the Clerk presented was Schismaticus & Adulter, and the Court commanded, that he hold himself to one of them, for which he said, Adulter; so as the Court did not mislike the Plea for the generality, but for the doubleness. And by Anderson, Our Case is not like the Cases put by Shuttleworth; for they concern things tryable by our Law, in which Case, to have convenient try∣al, all matters issuable ought to be specially alledged; but here the Case is otherwise, and no peril of Tryal. And by the said Statute of 27 Eliz. we ought to judge according to the right of the Cause, and matter in Law. See this Case adjudged upon a Writ of Error brought in the Kings Bench. Hill. 32 Eliz. in Cook 5 Part, 57. Specot's Case.

Notes

• * 1.1

  5 Co. 57.